Marcus Dill v The Secretary of State for Communities and Local Government

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice McCombe,Lord Justice Coulson,Lord Justice Hickinbottom
Judgment Date26 November 2018
Neutral Citation[2018] EWCA Civ 2619
Date26 November 2018
Docket NumberCase No: C1/2017/2843

[2018] EWCA Civ 2619

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

QUEEN'S BENCH DIVISION

PLANNING COURT IN BIRMINGHAM

THE HON MR JUSTICE SINGH

[2017] EWHC 2378 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice McCombe

Lord Justice Hickinbottom

and

Lord Justice Coulson

Case No: C1/2017/2843

Between:
Marcus Dill
Appellant
and
(1) The Secretary of State for Communities and Local Government
(2) Stratford-on-Avon District Council
Respondents

Richard Harwood QC (instructed by Shakespeare Martineau) for the Appellant

Guy Williams (instructed by Government Legal Department) for the First Respondent

The Second Respondent did not appear and was not represented

Hearing date: 3 October 2018

Approved Judgment

Lord Justice Hickinbottom

Introduction

1

This appeal gives rise to issues relating to the scope of what is meant by “listed building” under the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Listed Buildings Act”); and, in the event of dispute, who determines whether something is a “listed building”.

2

The issues arise in relation to two early 18th century limestone piers, each surmounted by a lead urn of the same era. I shall refer to the piers and urns by the neutral term “items”, a term used below. In 1973, the items were moved by the Appellant's father to Idlicote House, a Grade II listed building. In 1986, each of the items was separately Grade II listed. The Appellant came into ownership of Idlicote House and the items in 1993; but he did not appreciate that the items were listed. In 2009, he sold them at auction for £55,000, and they were exported. The Appellant does not know the name of the purchaser, and does not know where the items are now.

3

The fact that they had been removed came to the knowledge of the Second Defendant local planning authority (“the Council”) in 2014. Following correspondence, the Appellant made an application for retrospective listed building consent to remove the items. Both Historic England as statutory consultee and the Society for the Protection of Ancient Buildings made submissions on the application to the effect that the items were of special architectural and historic interest, and recommending enforcement action. The application for retrospective consent was refused on 11 February 2016. On 26 April 2016, the Council issued a listed building enforcement notice requiring the reinstatement of the items at Idlicote House.

4

The Appellant appealed to the Secretary of State against the refusal of listed building consent and the enforcement notice on several grounds, including that the items were not “buildings” so that listed building consent was not required and no enforcement action could be taken in respect of them.

5

The appeals were considered together by Anthony J Wharton BArch RIBA RIAS MRTPI, an inspector appointed by the Secretary of State (“the Inspector”), who refused them in a decision letter dated 19 January 2017. The Inspector found that:

i) It was not open to him to go behind the fact that an item appears on the list as a listed building (see paragraph 25 of his decision letter).

ii) In considering whether the items were buildings for these purposes, concepts of property law were irrelevant (paragraph 26).

iii) In considering whether the items were buildings for these purposes, the criteria set out in Skerritts of Nottingham Limited v Secretary of State for the Environment, Transport and the Regions (No 2) [2000] EWCA Civ 5569; [2000] JPL 1025 (“ Skerritts”) were irrelevant (paragraph 26–30).

iv) The listed building consent was invalid for failing to state to where the items were being removed (paragraph 48 and following).

6

The Appellant challenged those findings by way of an application to the High Court under section 63 of the Listed Buildings Act so far as the listed buildings consent was concerned and by way of appeal to that court under section 65 of the Act in relation to the enforcement notice, the application and the appeal raising identical issues. In particular, the Appellant submitted that the Inspector had erred in making the findings (i) to (iv) above.

7

The application and appeal were heard together by Singh J (as he then was), who refused both on all grounds ( [2017] EWHC 2378 (Admin)).

8

The Appellant now appeals against the conclusion of Singh J that the Inspector did not err in making findings (i) to (iv), comprising Grounds 1–4 of the appeal. The judge himself gave permission to appeal in respect of Grounds 1–3. He refused permission to appeal in respect of Ground 4, but permission was granted by Lindblom LJ on 28 November 2017.

9

Before us, Richard Harwood QC appeared for the Appellant, and Guy Williams of Counsel for the Secretary of State; and I would like to express our appreciation for their helpful submissions.

The Legislation

10

The history of the provisions now found in the Listed Buildings Act is helpfully set out in the speech of Lord Hope of Craighead in Shimuzu (UK) Limited v Westminster City Council [1997] 1 WLR 168 at page 175A-177D. For the purposes of this appeal, I can be briefer.

11

Before the modern regime for listed buildings was created by the Town and Country Planning Act 1968, there was a similar but more limited scheme for the making of “building preservation orders.” The Town and Country Planning Act 1947 provided for the preparation and maintenance of lists of buildings of special architectural and historic interest. Section 30(6) of the 1947 Act provided:

“So long as any building… is included in any list compiled or approved under this section, no person shall execute, or cause or permit to be executed, any works for the demolition of the building or for its alteration or extension in any manner which would seriously affect its character, unless at least two months before the works are executed notice in writing of the proposed works has been given to the local planning authority”.

That gave the opportunity for protective measures to be taken.

12

Those provisions were essentially retained by sections 32–33 of the Town and Country Planning Act 1962, which revoked the 1947 Act. Section 32(1) concerned the preparation of lists by the Minister:

“With a view to the guidance of local planning authorities in the performance of their functions under this Act in relation to buildings of special architectural or historic interest, the Minister shall compile lists of such buildings, or approve, with or without modifications, such lists compiled by other persons or bodies of persons, and may amend any list so compiled or approved.”

Such buildings were to be protected in essentially the same way as under the 1947 Act.

13

Part V of the Town and Country Planning Act 1968 abandoned building preservation orders and introduced a new basis of control by local authorities over buildings of special architectural or historic interest. Again, it involved the maintenance of a list approved by the relevant Minister. The expression “listed building” was defined for the first time, in section 40(1), as follows:

“In this Part of this Act the expression “listed building” means a building which is for the time being included in a list compiled or approved by the Minister under section 32 of the principal Act (buildings of special architectural or historic interest) [i.e. section 32 of the 1962 Act, quoted above]”.

14

In respect of such listed buildings, section 40(2) provided for a new scheme of “listed building consents”:

“Subject to this Part of this Act, if a person executes or causes 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, and the works are not authorised under this Part of this Act, he shall be guilty of an offence.

15

In 1986, when the items were listed, the relevant legislation was contained in the Town and Country Planning Act 1971. In that Act, section 32 of the 1962 Act was repealed; but replaced by section 54 of the new Act. Section 54(9) of that new Act 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.”

16

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 …”. Section 1(5), one of the provisions at the heart of the present case 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.”

17

The list compiled by the Secretary of Section must be promptly published (and deposited with the relevant authorities (section 2(1)), and listing stands as a local land charge (section 2(2)). Both the Secretary of State and every local authority are bound to keep copies of the list at a convenient place for inspection (section 2(4) and (5)). As soon as possible after the inclusion of any building in a list, the Secretary of State is required to notify the relevant local authority, which has an obligation to...

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