In an idyllic rural village on the edge of the Cotswolds, there stood a magnificent 18th century listed building – Idlicote House in Shipston-on-Stour. In the grounds of that magnificent building was a pair of lead urns atop their limestone piers, each also listed in their own right. In 2009, the then owner, in apparent ignorance of their listed status, decided to sell the urns and piers and he received the worthy sum of £55,000 from an overseas buyer. The urns and their piers then vanished across the oceans, never to be seen again.
Meanwhile, the authorities were alerted of their disappearance and after a little to-ing and fro-ing, the owner submitted a retrospective application for listed building consent to remove the items, which was refused. The Council then issued an Enforcement Notice, which the owner appealed against. The appeal was dismissed and the owner challenged the Inspector’s decision in the High Court, which the court refused. The owner then took matters further and challenged the High Court’s decision and on 26 November this year three Court of Appeal Judges found in favour of the District Council, refused the arguments raised by the owner and held that the urns and piers do amount to a ‘building’ for the purposes of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Listed Building Act”) and are therefore worthy of the protection bestowed by their listing.
The implication is that a wide discretion is imposed upon the Secretary of State to determine what, in its opinion, amounts to a ‘building’ for the purpose of a listing. Once a thing is listed, and there has been no challenge to the validity of the listing within the requisite timeframe then no-one can go behind that listing. One can, however, question the merits of the listing itself, and this is what this case essentially hinges on.
The term ‘building’ is not defined in the Listed Building Act but s336 of the Town and Country Planning Act 1990 is incorporated, which states that ‘building’ includes ‘any structure or erection, and any part of a building, as so defined, but does not include plant or machinery comprised within a building’.
Despite various attempts by the owner to raise property law arguments and rely on case law on the definition of structures and buildings, the Inspector and the High Court both held that, in determining whether something is a ‘building’ for the purposes of the Listed Building Act, neither the concept of whether a building is ‘real property’ nor the approach to buildings taken in other rating and planning cases such as Skerritts of Nottingham Limited v Secretary of State for the Environment, Transport and the Regions (No 2)  EWCA Civ 5569, were relevant.
The judges agreed that what amounted to a listed building was determined by the list and the list only. The judges further clarified that there are three distinct ways in which something may qualify as a ‘listed building’:
- it is included on the statutory list
- it is an object or structure fixed to a building which is on the statutory list
- it is an object or structure which lies within the curtilage of a building which is on the statutory list and has done so since 1 July 1948
In this case, the urn and piers were included on the statutory list in their own right and therefore were a ‘listed building’. Their removal from their long-stood position at Idlicote House was a breach of planning law and a failure to comply with the Enforcement Notice, a criminal offence. The case continues…