Listing: it isn't only buildings

4 minute read
13 March 2020

The case of Dill v Secretary of State for Communities and Local Government and Another [UKSC2019/0001] reached the Supreme Court this week. The case raises the question of what can be listed in its own right. It concerns a pair of 18th century lead urns on limestone piers which were placed in the gardens of a Grade II listed house when it was bought by the current owner's father in 1973. The urns were subsequently listed in their own right. The appellant in the case contends that, as they were not themselves buildings, they could and should not have been listed. The Supreme Court judgement on the point is awaited.

The case highlights the fact that, in addition to buildings, a variety of structures and objects have been protected by being listed under the Planning (Listed Buildings and Conservation Areas) Act 1990. The Courts have long held that "building" includes "any structure or erection which can be said to form part of the land and to change the physical character of the land" (Cheshire CC v Woodford [1962] 2 QB 126). This has led to a wide variety of things one would certainly not consider to be a building being listed in their own right, including statues, grave stones, lamp posts, telephone kiosks, water troughs and coal tax posts. Even the models of dinosaurs in Crystal Palace Park are listed and, indeed, have been placed on Historic England's At Risk Register. Hopefully the Supreme Court judgement in Dill, when it is handed down, will provide some clarity on what may be listed in its own right.

Owners, and particularly would-be developers, of listed buildings should nevertheless take great care over what objects they remove and what structures they alter or demolish. Even where the "thing" in question is not listed in its own right, it may be listed as part of the listing of a building by virtue of s.1(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990, which provides 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 this Act-

(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 before lst July 1948,"

It will be noted that this goes further and includes "objects" provided that they are a fixture in the ordinary legal sense of the word. There are two tests:

  1. Degree of annexation; and
  2. purpose of annexation.

In the case of listing the second is more likely to be determinative than the first. In the most extreme case conventionally hung paintings were held to be part of the listing (and thus listed building consent needed for their removal) in circumstances where they formed part of the grand design of a room rather than being hung for their appreciation as individual works of art. Other objects which have been held to be included in the listing of a building have included statues, clocks, sundials, bird baths and ornamental urns.

Similarly structures which are attached to a listed building and structures which have been in the curtilage since 1948 (regardless of whether the object or structure itself has any architectural or historic interest) will form part of the listed building and listed building consent is very likely to be required for its removal, demolition or alteration in a manner which affects the character of the listed building.

The consequences of removing or altering a protected object or structure can be severe. It is a criminal offence punishable by an unlimited fine and/or up to 2 years' imprisonment to do any works which require listed building consent without first obtaining such consent. In addition the local planning authority's enforcement powers are wide-ranging and extend to requiring the object or structure to be re-erected on site - even where the materials have been taken off site (provided, of course, they can be found).

So remember: when it comes to listing. It isn't just buildings that are protected.

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