The Supreme Court considers the issue of Garden Ornaments under the Listed Buildings regime

On 20 May 2020, the Supreme Court of the UK handed down a judgment considering the categorisation as “listed buildings” of a pair of early 18th century lead urns attributed to the Flemish sculptor John van Nost, in the case of Dill v Secretary of State for Housing, Communities and Local Government.[1] The judgment provides important clarification about the applicable tests in the assessment of garden ornaments under the listed buildings regime; an area in which the judgment notes “a disturbing lack of clarity about the criteria which have been adopted by the relevant authorities not only in this instance but more generally, in determining whether free-standing items such as these are regarded as qualifying for listing protection, whether as “curtilage structures”, or as separate “buildings” as in this case.”[2]

While much of the judgment relies heavily on the particular facts of this case, the clarification of approach will be of assistance to owners and those in the art market addressing questions surrounding the listed status of garden ornaments and similar objects proposed for sale.

Factual background

Originally displayed on pedestals at Wrest Park in Bedfordshire, the urns and their pedestals were subsequently moved several times in the course of the twentieth century before ending in the 1970s at Idlicote House. They stood 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 pedestals were not attached to the ground and the urns were not attached to the pedestals.

In 1966 Idlicote House had been designated a Grade II listed building. In June 1986 the items were themselves added to the list in their own right.  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. Several months after the listing, the items were entered on the local land charges register. The present owner, Mr Marcus Dill, inherited the house and the items in 1993. He was not aware of the listing of the items, and apparently neither was his father, Major Dill.

In 2009, Mr Dill removed the urns from the house and offered them for sale at auction. English Heritage was notified in advance of the auction (as a potential purchaser) but did not respond. The items sold for £55,000.

In 2015, the local planning authority informed Mr Dill that listed building consent had been required for the removal of the urns and threatened formal action. Mr Dill applied for retrospective listed building consent but this was refused by the planning authority. Shortly after this refusal, the local planning authority issued a listed building enforcement notice requiring the reinstatement of the urns at Idlicote House.

Mr Dill appealed to the Secretary of State against the local planning authority’s refusal of listed building consent and the enforcement notice on several grounds including that the urns were not “buildings” and therefore not capable of being independently listed. The appeals were dismissed by the planning inspector in charge of the review, who notably argued that the “buildings” status of the urns had been established by their listing and that he could not consider that issue on appeal.

The legal issues and the decision

Following this rejection, Mr Dill started legal proceedings. Judgments from the High Court and the Court of Appeal upheld the planning inspector’s decision that the urns’ listed status was not subject to challenge. Two specific issues were put before the Supreme Court, namely:

  1. Is the designation as a listed building conclusive and particularly whether an inspector considering an appeal under sections 20 (right to appeal to the Secretary of State against a refusal of consent by a local planning authority) or 39 (right to appeal a listed building enforcement notice from a local planning authority) of the Listed Buildings Act[3] can consider whether or not an item on that list is a “building”; and
  2. What criteria are relevant in determining whether an item in the statutory list is a “building” and specifically which tests should be applied in that assessment.

Section 1(5) of the Listed Buildings Act provides that “a “listed building” means a building which is for the time being included in a list…[and]…(a) any object or structure fixed to the building [and] (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 1 July 1948”.

With regards to the first issue of whether or not an entry on the Secretary of State’s list of listed buildings can be challenged, it should be noted that the Listed Buildings Act provides for the possibility to challenge a refusal of consent by a planning authority and an enforcement notice (sections 20 and 39 referred to above in the list of issues). The grounds of challenge include the claim that the building is not of special architectural or historic interest and should be removed from the list. However, these appeal routes do not specifically contemplate the claim that an item is not a “building” within the meaning of the Act. Here, the Court accepted the Respondent’s submission that, as a general common law principle, “the issue of statutory interpretation is subject to the rule of law that individuals affected by legal measures should have a fair opportunity to challenge these measures and to vindicate their right in court proceedings”, with a similar principle reflected in the European Convention of Human Rights, Article 6, unless otherwise provided in the statutory scheme in question.[4] The Court held that there existed no specific exclusion in the Listed Buildings Act preventing an individual from arguing that an item on the list should not be characterised as a “building”, and  if it could be showed that an item was not “a building”, then that item could not have been entered on a list of listed buildings[5]. On that basis, the Court remitted the appeal to the enforcement notice to the Secretary of State for redetermination, subject to assessment of the second issue.

On the second issue (whether in this case the urns were “buildings”), the Court recognised the lack of clarity surrounding the criteria adopted by the authorities to assess whether an object could be a “building” for the purposes of the Listed Buildings Act. The Court noted that the definition of “listed building” in S1(5) of the Act falls into two parts, i.e. the building itself comprising a “structure or erection” and, in paragraphs (a) and (b) if that section, items fixed to or in the curtilage of that building, described in the judgment as the so-called “extended definition”.[6] The Court also noted that items falling within the extended definition become listed as part of the overall listed building, as opposed to becoming listed buildings in their own right,[7] while noting that this distinction has not always been clear in guidance on the subject from bodies such as the  Department for Digital, Culture, Media and Sport.[8]

The importance of the distinction lies in the relevant test to be applied, and specifically whether the “Skerrits test”,[9] or the older “degree and purpose of annexation tests” should be applied to determine an object’s status either as a building in its own right or as part of another listed building.   For the purposes of applying the extended definition (whether an object is part of a listed building through fixture or curtilage), the court reviewed the statutory background to the Listed Buildings Act with related caselaw, and confirmed that one must apply the real property concepts under common law to determine whether the chattel is or has become part of the land. This would require considering (i) the method and degree of annexation of the object, and (ii) the object and purpose of its annexation.[10] In the Court’s view and applying the principles in Berkley v Poulett:[11]a statue or other ornamental object, which is neither physically attached to the land, nor directly related to the design of the relevant listed building and its setting, cannot be treated as a curtilage structure and so part of the building within the extended definition.[12]

The Court went on to consider the test applicable to determining whether garden objects can be characterised as “buildings” in their own right. In doing so, the Court found that the relevant approach required application of the three-fold test established in the case of Skerritts, looking at (i) the size, (ii) permanence and (iii) degree of physical attachment of the object.[13] In the absence of full factual submissions on this point, the Court made provisional comments as to the urns’ status. The Court explained that “[the urns and their plinths] comprised a set of elements which had to be assembled together (a “structure”), required a small crane to move them and to assemble them (as an “erection”) and were intended to occupy a stable and near permanent position in situ [(with a certain degree of permanence)]”.[14] On the other hand, it was noted that the urns were not particularly large, were physically separate and apparently easy to install and remove.[15] Accordingly the Court found that the decision as to the urns’ characterisation in this particular case should more appropriately be made by a planning inspector in the context of a renewed appeal, rather than by the court, although the court did recommend that the authorities reconsider whether it was fair to Mr Dill or expedient in the public interest to pursue this particular enforcement process any further.

Commentary

In some respects, the Supreme Court’s decision in Dill addresses technical issues which are closely tied to the particular circumstances of this case. Among the more unusual circumstances were the peripatetic (but well recoded) history of the urns and the fact that Mr Dill (not unreasonably in the view of the court) remained unaware of the urns’ listed status until after their removal from Idlicote House and subsequent sale. Nevertheless, the decision has wider significance for family offices, collectors and art market professionals in various ways.

The first issue is the court’s comments about the guidance currently available concerning the treatment of garden statuary, and the lack of clarity over whether an item is to be (or was) listed as a building in its own right, or as part of another listed building. This suggests that some of the current guidance should be treated with caution.

The court has confirmed that the common law approach to fixtures should apply to items brought within a listing through the “extended definition”, but that the tests applied in Skerritts should be applied to items proposed for listing as buildings in their own right. This might have consequences in several cases, as the common law test relies heavily on the second limb or “purpose of annexation” test, introducing concepts of design, intention and history to the analysis, and emphasising that the test is more about the environment of the object than the object itself (for example with Berkley v Poulett). The Skerritts test does not require these matters to be considered, applying a more functional approach to the structure itself, without reference to its surroundings.  This could mean that an object which meets the criteria for listing under the Skerritts test would not qualify under the tests for inclusion as part of another listed building. Hence the need for greater clarity over which form of listing has been applied.

The case is a useful reminder that garden objects or other ornaments can be considered as buildings in their own right for the purposes of the listed buildings regulations, even where they do not meet the tests concerning environment and garden design. As such, the case reinforces the need for due diligence checks to be carried out by sellers of important garden ornaments before the item is moved, altered in any way, or its ownership transferred. Buyers of historic objects must also beware of protective listings and should carry out these checks before the acquisition of an object of historic and/or architectural interest. A preliminary, simple step is to check Historic England’s list of protected historic buildings, which is available to search online: https://historicengland.org.uk/listing/the-list/.

Where export is contemplated for objects which have been in the UK for more than 50 years, applications for export licences will involve providing information about provenance and background; the absence of appropriate planning consents risks delay and potential rejection.

Furthermore, the failure to carry out such due diligence could render both seller and buyer subject to regulatory sanction, as demolition of listed buildings or removal of parts of listed buildings without listed building consent constitutes a criminal offence under the Planning Acts. Additionally, items thus removed after 30th December 2003 would be “tainted” under the Dealing in Cultural Objects (Offences) Act 2003. Dishonestly dealing in (acquiring, selling, importing or exporting) such tainted items is also a criminal offence and a failure to carry out appropriate due diligence might be a significant factor in a finding of dishonesty in such dealings.

While the appropriate lists relating to listed buildings and items included in their fabric or curtilage are not conclusive evidence of what is included and not included (some list descriptions are very brief), it is more important than ever to check whether property is mentioned in such lists and (in the case of garden ornaments) the basis on which they were included.

The Supreme Court judgment can be found here: https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKSC/2020/20.html&query=(dill)

By Tom Christopherson and Emelyne Peticca


[1] [2020] UKSC 20 On appeal from: [2018] EWCA Civ 261

[2] Judgment, paragraph 28

[3] Planning (Listed Buildings and Conservation Areas) Act 1990

[4] Judgment, paragraph 20

[5] Judgment, paragraph 24

[6] Judgment, paragraph 13

[7] Judgment, paragraph 35

[8] Judgment, paragraph 36

[9] Skerritts of Notthingham Ltd v Secretary of State for the Environment, Transport and the Regions (No 2) [2000] JPL 1025

[10] Judgment, paragraph 38 and following paragraphs

[11] Berkley v Poulett [1977] 1 EGLR 86

[12] Judgment, paragraph 43, see also Paragraph 57

[13] Judgment, paragraph 46

[14] Judgment, paragraph 58

[15] Judgment, paragraph 58