Marcus Dill v Secretary of State for Communities and Local Government (1st Defendant) Stratford-on-Avon District Council (2nd Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Singh |
| Judgment Date | 28 September 2017 |
| Neutral Citation | [2017] EWHC 2378 (Admin) |
| Docket Number | Case No: CO/804/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 September 2017 |
[2017] EWHC 2378 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Civil Justice Centre
33 Bull Street
BirminghamB4 6DS
The Honourable Mr Justice Singh
Case No: CO/804/2017
CO/806/2017
and
Mr Richard Harwood QC (instructed by Shakespeare Martineau) for the Claimant
Mr John Hunter (instructed by the Government Legal Department) for the 1 st Defendant
Mr Gary Grant (instructed by Macer Nash Solicitor to Stratford-on-Avon District Council) for the 2 nd Defendant
Hearing dates: 17 & 18 July 2017
Approved Judgment
Introduction
There are two cases before the Court. The first is an application under section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the Listed Buildings Act"). The second is an appeal under section 65 of the same Act.
The cases concern a single decision letter by the Secretary of State's Inspector dated 19 January 2017. By that decision the Inspector dismissed the Claimant's appeals, first, against the refusal of retrospective listed building consent for the removal of two limestone piers and lead urns from Idlicote House in Shipston-on-Stour, Warwickshire (known before the Inspector as Appeal B); and, secondly, against a listed building enforcement notice which had been issued by the local planning authority (the Second Defendant) on 26 April 2016 for the restoration of the piers and lead urns to Idlicote (known before the Inspector as Appeal A). Appeal B was brought under section 20 of the Listed Buildings Act and Appeal A was brought under section 39 of that Act.
Permission to bring these cases was granted by me after a hearing on 10 April 2017. The issues in the two cases are identical.
I am grateful to all counsel for their comprehensive written and oral submissions. The Claimant has been represented by Mr Richard Harwood QC, who argues that the Inspector erred as a matter of law on 11 grounds. On behalf of the Secretary of State Mr John Hunter resists the challenge made in this case. In that he is supported by Mr Gary Grant, who appeared on behalf of the local planning authority.
Factual Background
The urns in question (which are also sometimes described as finials) are made of lead and are attributed to the Dutch sculptor John van Nost. They have been dated to around 1700. The piers on which they rested have been dated to the late 1720s and consist of limestone pedestals of a slab rather than solid construction. Together a pier and urn were 274 cms high. I will use the neutral term "the items" to refer to the urns and piers. While they were in the grounds of Idlicote House the items were free-standing. The pier was not attached to the ground and the urn was not attached to the pier.
The items were originally at Wrest Park in Bedfordshire. In 1939 Mr J G Murray sold Wrest Park and took various items of statuary, including these items, with him to Coles Park, Buntingford in Hertfordshire. In 1954–5, following the death of Mr Murray, the estate was left to a trust, with his grandson, Major R P G Dill, being a lifetime beneficiary. In 1955–6, under Major Dill, Coles Park was sold and the items went with him to the Dower House, Buntingford. Major Dill sold Dower House in 1962 and moved to Badgers Farm, Idlicote. Again the items went with him. He positioned them at Badgers Farm. The farmhouse at Badgers Farm was listed in 1966 but the list description makes no mention of the items.
In 1973 Major Dill sold Badgers Farm and bought Idlicote House. These items followed him. These two items were positioned on either side of a path in the gardens which had served as the front drive to the house since the 1820s. No alteration was made to the garden design to accommodate the items.
In 1966 Idlicote House was designated a Grade II listed building.
In 1986 the items were themselves added to the list under what was then section 54 of the Town and Country Planning Act 1971 ("the 1971 Act").
The listing decision and paperwork on which it was based have not been found despite enquiries. It is presumed that there was advice given at that time by English Heritage (the then statutory consultee) to the Secretary of State and that the advice supported listing the items.
At that time notice of the listing to the owner or occupier of the relevant land was required to be given under section 54(7) of the 1971 Act.
The present owner, Mr Marcus Dill, was not aware of the listing until 2015. He does not understand that his father, Major Dill, was aware of it either.
In 1993 ownership of the piers and urns passed to Mr Dill.
In 2009 the items were sold at auction. English Heritage was notified in advance but did not respond. The items were sold and it would seem were exported from the United Kingdom.
In 2014 the local planning authority became aware that the items had been removed and began correspondence with Mr Dill.
On 17 June 2015 Mr Dill made a retrospective application for listed building consent. This was refused by the local planning authority on 11 February 2016.
In the course of consideration of that application, the local planning authority received letters from the Society for the Preservation of Ancient Buildings ("SPAB") dated 24 September 2015; and from Historic England (now the relevant statutory consultee) dated 13 December 2015.
On 26 April 2016 the local planning authority issued a listed building enforcement notice requiring the reinstatement of both original piers and urns to Idlicote House.
Mr Dill appealed against those two decisions. The appeals were considered by the Inspector by way of written representations. He also conducted a site visit.
On 19 January 2017, the Inspector dismissed both appeals. It is that decision which is the subject of challenge in these proceedings.
Material Legislation
Before the modern regime for listed buildings was created by Parliament in 1968 there was a similar but more limited scheme for the making of "building preservation orders." The relevant provision was contained section 30 of the Town and Country Planning Act 1962, which provided that:
"(1) Subject to the provisions of this and the next following section, if it appears to a local planning authority that it is expedient to make provision for the preservation of any building of special architectural or historic interest in their area, they may for that purpose make an order (in this Act referred to as a 'building preservation order') restricting the demolition, alteration or extension of the building."
The modern scheme, for a statutory list of buildings which were to be given protection, was first created by the Town and Country Planning Act 1968. At the time of the listing of the items in the present case in 1986 the relevant legislation was contained in the Town and Country Planning Act 1971. In that Act provision was made for the Secretary of State to compile a list of buildings of special architectural or historic interest: section 54. Section 54(9) provided that:
"In this Act 'listed building' means a building which is for the time being included in a list compiled or approved by the Secretary of State under this section; and, for the purposes of the provisions of this Act relating to listed buildings and building preservation notices, any object or structure fixed to a building, or forming part of the land and comprised within the curtilage of a building, shall be treated as part of the building."
A similar provision is now contained in section 1 of the Listed Buildings Act.
Section 1(1) provides that "the Secretary of State shall compile lists of such buildings" and "may amend any lists so compiled …"
Subsection (3) provides that:
"In considering whether to include a building in a list compiled … under this section, the Secretary of State may take into account not only the building itself but also – …
(b) the desirability of preserving, on the ground of its architectural or historic interest, any feature of the building consisting of a manmade object or structure fixed to the building or forming part of the land and comprised within the curtilage of the building."
Subsection (4) provides that:
"Before compiling, approving … or amending any list under this section the Secretary of State shall consult –
(a) in relation to buildings which are situated in England, with the Commission [at one time this used to be English Heritage but, since 2015, this has been Historic England]; …"
One of the provisions at the heart of the present case is subsection (5), which provides:
"In this Act 'listed building' means a building which is for the time being included in a list compiled or approved by the Secretary of State under this section; and for the purposes of this Act –
a) any object or structure fixed to the building;
b) any object or structure within the curtilage of the building which, although not fixed to the building, forms part of the land and has done so since before 1 st July 1948, shall … be treated as part of the building."
Section 7 of the Listed Buildings Act provides that no person shall execute or cause to be executed any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest, unless the works are authorised under section 8.
Section 9 provides that, if a person contravenes section 7, he shall be guilty of an offence.
Section 8 provides for listed building consent to be granted by a local planning authority. Section 10 makes provision for the making of applications for listed building...
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