Marcus Dill v The Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Lord Kitchin,Lord Carnwath,Lord Wilson,Lord Sales,Lady Arden |
| Judgment Date | 20 May 2020 |
| Neutral Citation | [2020] UKSC 20 |
| Date | 2020 |
| Year | 2020 |
| Court | Supreme Court |
[2020] UKSC 20
Lord Wilson
Lord Carnwath
Lady Arden
Lord Kitchin
Lord Sales
Appellant
Richard Harwood QC
Catherine Dobson
(Instructed by Shakespeare Martineau LLP (Birmingham))
Respondent (1)
David Elvin QC
Guy Williams
(Instructed by The Government Legal Department)
Respondent (2)
John Hunter
(Instructed by Stratford-on-Avon District Council)
Respondents:-
(1) Secretary of State for Housing, Communities and Local Government
(2) Stratford-on-Avon District Council
Heard on 10 March 2020
( with whom Lord Wilson, Lady Arden, Lord Kitchin and Lord Sales agree)
This appeal raises two important questions, one procedural and the other substantive, arising out of the decision of a planning inspector under the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Listed Buildings Act”). It concerns the correct treatment of a pair of early 18th century lead urns (or “finials”), attributed to the Flemish sculptor John van Nost, each resting on a limestone pedestal of a slightly later date. The two vases, together in each case with its plinth, were described in the judgments below as “the items”. I shall do the same. There is no doubt as to their artistic significance, which led to them being sold at auction in 2009 for £55,000. There is however a dispute as to whether they were properly treated as “buildings” under that legislation; but also a prior question as to whether such a dispute could and should have been addressed by the planning inspector in the proceedings before him.
The items were originally at Wrest Park in Bedfordshire, owned by the first Duke of Kent. According to the 2009 auction particulars “Wrest Park … was one of the grandest and most admired gardens established in England in the first part of the 18th century”. Apparently, a large plan of the garden by John Roque in 1735 showed the items flanking the entrance to the gardens. They remained at Wrest Park until 1939, when it was sold by the then owner, Mr J G Murray, who took various items of statuary, including these items, with him to Coles Park, Buntingford in Hertfordshire.
In 1954–55, following the death of Mr Murray, his estate was left to a trust, with his grandson, Major R P G Dill, as a lifetime beneficiary. In 1955–56, under Major Dill, Coles Park was sold and he took the items with him to the Dower House, Buntingford. Major Dill sold the Dower House in 1962, when he moved to Badgers Farm, Idlicote, Warwickshire, again taking the items with him. In 1973 he sold Badgers Farm and moved to Idlicote House. He again took the items with him and placed them 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, which were free-standing. The piers were not attached to the ground and the urns were not attached to the piers.
In 1966 Idlicote House had been designated a Grade II listed building. In June 1986 the items were themselves added to the list under section 54 of the Town and Country Planning Act 1971. Each was described as follows in both of the list entries:
“Pier surmounted by urn C18. Limestone and lead. Square pier with panelled sides, moulded stone plinth and chamfered cornices. Lead urn is decorated with high-relief cherub's heads and flame finial.”
The listing decision and paperwork on which it was based have not been found despite enquiries. Although notice of the listing was required to be given to the owner or occupier by the local planning authority, there appears to be no extant record of such a notice. However, in January 1987 (six months after listing — the delay has not been explained) the items were entered on the local land charges register. The present owner, Mr Marcus Dill, acquired the house and the items in 1993. He was not aware of the listing of the items, and does not understand that his father, Major Dill, was aware of it.
In 2009 he removed and arranged for sale of the items at auction. English Heritage was notified in advance and was sent the auction catalogue (as a potential purchaser) but did not respond. It is understood that they have since been removed from the United Kingdom.
As to the physical qualities of the items, and the method of removal, I take the following (which I do not understand to be contentious) from Mr Dill's statement in the planning appeal:
“The piers … consist of limestone pedestals of a slab rather than solid construction. Consequently they were not especially heavy. Together a pier and finial was 274cm high …
At Idlicote House the pedestals were resting on concrete slabs which were on the ground. They were not fixed to the slabs. The finials were also sitting on the pedestals without any attachment. The top of the piers can be removed. When they were taken from Idlicote House the finials and the top of the piers were lifted together and then the remaining part of each pier lifted. The items were lifted onto a Hiab lorry by its crane.”
In 2014 the local planning authority became aware that the items had been removed and began correspondence with Mr Dill. On 29 April 2015 they wrote to Mr Dill informing him that listed building consent had been required for their removal and threatening formal action. 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 response to consultation on the application, Historic England had advised that the grounds for listing “these structures” were the same as for any listing, that is their “special architectural and historic interest”. They observed that:
“Many garden items (as well as structures such as buildings relocated in open air museums), including statues and urns have been listed after they have been moved because they still qualify under that definition.”
On 26 April 2016, the local planning authority issued a listed building enforcement notice requiring the reinstatement of the items at Idlicote House. Mr Dill 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”. The appeals were considered together by a planning inspector appointed by the Secretary of State, who gave his decision dismissing the appeals in a letter dated 19 January 2017. He took the view, in summary, that the status of the items as “buildings” was established by the listing; that he could not reconsider that issue; and, that issues of property law or the so-called Skerritts tests of size, permanence and degree of annexation (see below) were irrelevant.
The view that the status of the item as a building was not open to challenge was upheld by Singh J in the High Court ( [2017] EWHC 2378 (Admin)) and by the Court of Appeal ( [2018] EWCA Civ 2619; [2019] PTSR 1214). In the leading judgment, Hickinbottom LJ (with the agreement of McCombe and Coulson LJJ) held:
“In my view, the wording of the relevant provisions in the Listed Buildings Act make clear that it was the intention of the statute that, for the purposes of applications for listed building consent and enforcement (and appeals from the same), being on the list is determinative of the status of the subject matter as a listed building, the protection given by the Act deriving from that status.” (para 33)
He thought that view was supported by the statutory background, and was not displaced by any of the authorities relied on by Mr Harwood QC for Mr Dill. That conclusion made it unnecessary to consider the separate grounds relating to the correct test for categorisation of such items as “buildings” (paras 46–50). McCombe LJ (para 61), concurring, noted the possible conflict with the view expressed by him at first instance in Chambers v Guildford Borough Council [2008] EWHC 826 (QB); [2008] JPL 1459, but agreed with Hickinbottom LJ (para 38) that the real issue in that case was different.
Two issues are agreed as arising before the Supreme Court, in short:
i) Whether an inspector considering an appeal under section 20 or section 39 of the Listed Buildings Act can consider whether or not something on that list is a “building”.
ii) (In so far as this issue arises) what criteria are relevant in determining whether an item appearing in its own right in the statutory list is a “building” for this purpose: whether concepts of property law (the extent and purpose of a structure's annexation), or the criteria set out in Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and Regions (No 2) [2000] JPL 1025 (size, permanence and degree of annexation).
The current statutory provisions are contained in the Listed Buildings Act. They are subject to minor variations in the same form as enacted in the Town and Country Planning Act 1968, and repeated in subsequent consolidations. For present purposes it is sufficient to refer to the current Act.
Section 1(1) requires the Secretary of State to compile lists of buildings of special architectural or historic interest. Section 1(5) 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 July 1948,
shall … be treated as part of the building.”
Subsection (5A)...
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