The Supreme Court has ruled and upheld an appeal against a Court of Appeal and High Court decision in respect of two urns on piers and their status as "Listed buildings".
The Court had two important questions to consider in relation to the interpretation and application of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Listed Buildings Act”) regarding the definition of a Listed building.
The case centred around two early 18th century lead urns resting on limestone pedestals attributed to John van Nost, known as the "Wrest Park Finials" (the "Finials") and how they were to be treated under the Listed Buildings Act. John van Nost, a prolific Flemish sculptor who worked in the 17th and 18th centuries, was known for creating works in lead, and his pieces can be found at Hampton Court Palace, Buckingham Palace and Chatsworth, among other notable sites. The Finials, originally commissioned for the celebrated gardens of Wrest Park in Bedfordshire, ended up at Idlicote House (the then home of the Applicant's father) in 1973 after some travels. In 1966, Idlicote, near Stratford-on-Avon, achieved Grade II listed building status and the Finials were individually added as separate entries to the list of protected buildings under s. 1 of the Listed Buildings Act in 1986. In 2009 Mr Dill, the now owner of the property, sold the Finials for approximately £55,000 and it was understood that on sale they left the UK. The Judgment mentions that English Heritage, as it then was, was notified in advance of the auction and sent a copy of the catalogue as a potential purchaser but did not respond or intervene in the auction sale. It would be of interest to see how the Finials were treated on export post sale. For example, were they captured by any of the three Waverley Criteria, to establish assessment of the suitability for export of the piece since 1952 namely: 1) Is it so closely connected with our history and national life that its departure would be a misfortune? 2) Is it of outstanding aesthetic importance? 3) Is it of outstanding significance for the study of some particular branch of art, learning or history?
Retrospectively, it is understood that in 2014 the local planning authority learnt of the full details of the removal and sale of the Finials, and threatened Mr Dill with legal action on the basis that consent for their removal and sale of the Finials should have been sought and obtained in advance. Mr Dill's retrospective listed building consent application in 2016 was refused and subsequently a listed building enforcement notice was issued demanding the reinstatement of the Finials by the planning authority. Mr Dill appealed the decision via the Planning Inspectorate and lost; a decision that was subsequently upheld both at the High Court and Court of Appeal who agreed that the inspector's decision that the Finials status as "buildings" was established by the listing and that he could not reconsider the issue; and that the listing confirmed the Finials' status as "buildings".
The matter was taken to the Supreme Court, where the pivotal issue to be considered was the definition of what constituted the "building" and the test for establishing the same.
The Supreme Court overruled the lower courts' decisions and found the following:
Whether listing is conclusive of the items being “buildings” for the purposes of the Listed Buildings Act
Inclusion on the list as a "Listing Building" does not definitively make an item a building and it should be open to challenge. This might be surprising to those involved in public law questions because it goes to the heart of whether the listing should have been made in the first place. However the Listed Building Act has always allowed challenge to enforcement action on the grounds that the building does not have special architectural or historic interest which is equally fundamental to the building's presence on the list. If Historic England can be challenged as to having got that part wrong, the question of whether it is a building must also be capable of being raised.
The relevant test for a “building”
The test set out in Skerritts of Nottingham v Secretary of State for the Environment Transport and Regions  JPL 1025 (a three-fold test considering size, permanence and degree of physical attachment) should be applied in the assessment of whether a feature could be considered part of a Building. In this case, the method of affixation and the ease of removal compared with other cases of a similar type suggested there was a question to be answered. Each case turned on its facts and the court sent the matter back for reconsideration against this criteria.
The decision of the Supreme Court is welcomed in bringing some clarity to the issue of what is defined to be a "Listed Building". In plain English a building is a building. The scope of Listing Building Control was also considered.
Two points of significance occur to us:
- Most cases regarding artwork and Listed Buildings turn on whether something might lie in the curtilage of a Listed Building or be fixed to it so as to become part of the land. Those questions do not necessarily require something to be a building. But here were two limestone piers with lead Finials which each had their own independent listing description. This was clearly done because they were felt to be of historic or architectural significance in their own right and prior to this case would have been seen as a strong indication that their removal needed consent without needing to undertake other considerations. This ruling opens up the way for the potential challenge and subsequent removal and sale of artefacts that may have their own listing entries, even where the proposal is to remove the whole of the listed element.
- Do we now need additional controls to protect heritage? If a listing separately from a nearby listed property can be undermined if the Skerritts test is failed, does Historic England need to investigate statuary, plinths and other such items in more detail in future? Such individual listings are not uncommon; Historic England added 41 post-war sculptures to the list in 2016, many of which will not be associated with a separate more traditional listed building. If Historic England conclude that the Skerritts test is failed, how can such elements still be protected in situ, if indeed that is important? It would be an anomaly if the same element (even a relatively modern one) could not be listed in its own right because of this test but could be protected in situ if (and only if) it was located at stately home or some other listed building whose protection could be extended to it as a "curtilage structure" or if it were fixed to the building.
Such cases heavily revolve around the facts. We have considered paintings in situ through to historic libraries housed in rooms designed for the purpose. Questions over degree of annexation of items (this could apply to sculptures, garden statuary or paintings exhibited within a designed scheme of a room) will remain issues to be dealt with on a case by case basis as will the history of movement and placement of the items. For property owners the significance and understanding of Listing can therefore either prove a challenge or be overlooked. Items can be unknowingly removed, sold or consigned from within a property without an understanding that they may be deemed to be considered a Listed Building in their own right under the definition. As sought here and upheld in the lower courts, at the most onerous, councils can retrospectively require owners to restore the Listed Building to its former status. This can often be complicated, costly or impossible. It can also lead to significant consequential issues: auction sales may be blocked, lots withdrawn or sales unwound. The latter may lead not only to reputational damage to the consignor but is also likely to result in a breach of the warranties provided in any consignment agreement for which the consignor is likely to have indemnified the auction house. If the listed items have subsequently been sold on, add to this another layer of costly dispute resolution.
Before any steps are taken by an owner of a Listed Building to remove items which, or may fall with a Listing (aside from taking legal advice) we would always advise due diligence research on the history, degree of annexation, listing status and description.
In the circumstances had the urns still been situated at the listed building Wrest Park, (the gardens where the Finials were commissioned for and may well have lain within the curtilage of) the result may have been very different. This case is a notable development in the intersection between art law and planning.