Input:
In circumstances in which at the time of a divorce a spouse, say a wife, is awarded capital which enables her to purchase a home but later she exhausts the capital by entry into a series of unwise transactions and so develops a need to pay rent, is the court entitled to decline to increase the order for the husband to make periodical payments to her so as to fund payment of all (or perhaps even any) of her rent even if he could afford to do so?
Mr Mills (whom it will be convenient to describe as the husband notwithstanding his divorce from Mrs Mills, the wife, in 2002) appeals against an order for upwards variation of an order for periodical payments against him in favour of the wife.
The order for variation was made by the Court of Appeal (Longmore LJ and Sir Ernest Ryder, Senior President of Tribunals) on 1 February 2017: [2017] EWCA Civ 129.
By that order, the Court of Appeal allowed the wifes appeal against the dismissal of her application to vary the order for periodical payments by Judge Everall QC (the judge) in the Central Family Court in London on 9 June 2015.
The husband and wife are each aged 52.
They were married in 1987.
The wife is a qualified beauty therapist.
In the early years of the marriage she worked, self employed, in that capacity.
The husband built up a surveying business within two companies which he and the wife owned in equal shares.
They had one child, a son, now adult.
In 1996 the wife unfortunately suffered a late miscarriage, which precipitated a long period of painful gynaecological difficulties for her.
In 2000 the husband left the home in Guildford.
On 7 June 2002, in the ensuing divorce proceedings, financial issues were resolved within a consent order.
In addition to provision for their son, who was to continue to make his home with the wife and have contact with the husband, the order provided that: i) the home, vested in the joint names of the parties, should be sold; ii) its net proceeds should be divided in accordance with a formula which in the event yielded 230,000 for the wife in settlement of all her capital claims against the husband and 23,000 for him; the wife should transfer to the husband her interest in policies worth iii) 23,000 and her shares in the surveying companies; and iv) the husband should make periodical payments to her at the annual rate of 13,200 (not index linked) on the open ended basis, namely during their joint lives until her remarriage or further order in the interim.
The wife therefore received the vast preponderance of the parties liquid capital.
The value of the two companies was not identified.
At the time of making the consent order the wife had represented that ill health was disabling her from working and that she would need 350,000 with which to purchase a suitable home for herself and their son.
The husband had conceded that she then had no capacity to raise a mortgage but had suggested, by contrast, that she could purchase a suitable home for 230,000 or less, in other words free of mortgage.
In the event, later in 2002, she proceeded to purchase a house in Weybridge for 345,000 by deploying in effect her entire share of the proceeds of the home and by raising the balance of 125,000 on mortgage.
When he learnt of the wifes purchase, the husband, by solicitors, expressed surprise at its high cost and concern about her ability to service a mortgage, let alone one of such size.
By solicitors, she replied only that she had not been able to secure reasonably priced accommodation in an area in which it would in her opinion be best for their son to grow up.
wife had begun to work again as a beauty therapist, but part time.
In 2006 the wife sold the house in Weybridge at the price for which she had bought it, namely 345,000.
But the sum owing on mortgage had risen by 93,000 to 218,000.
Having received written and oral evidence from the wife, the judge found that she had been unable satisfactorily to explain why the sum owing had increased or in what way the increase had been spent.
Upon the sale of the house in Weybridge the wife bought a flat in Wimbledon for 323,000, with a deposit of 48,000 and a mortgage of 275,000.
The judge therefore calculated that, net of collateral costs of the transactions, about 62,000 of the proceeds of sale had not been used in the purchase of the flat; but he noted that the wife had refurbished it to some extent.
It is clear that, by the time of her purchase of the house in Weybridge, the
In 2007 the wife sold the flat in Wimbledon for 435,000.
The sum then owing on mortgage had risen only marginally, namely to 277,000.
Instead she bought a flat in Battersea for 520,000, with a deposit of 78,000 and a mortgage of 442,000.
The judge therefore calculated that, net of the collateral costs, about 44,000 of the proceeds of sale had not been used in the purchase of the second flat.
It is unclear from his judgment how the wife was able to secure, and then to service, a borrowing as high as 442,000.
In 2009 the wife sold the flat in Battersea for 580,000 and began to rent accommodation.
The judge calculated that, after repaying the mortgage of 442,000 and meeting the collateral costs, the wife received about 120,000 from the proceeds of sale.
Between 2009 and 2015 the wife rented six successive properties in London and Surrey.
By April 2015, when the judge heard the case, the wife had no capital.
On the contrary, she had overdrafts of 4,000, credit card liabilities of 18,000 and a tax liability of about 20,000.
Before the judge were cross applications.
The husband had applied for discharge of the order for periodical payments on his payment to the wife of a modest capital sum, say of 26,000; or for a fixed period to be set on her continued receipt of periodical payments and/or for a downwards variation of their amount.
The wife had cross applied for an upwards variation of their amount.
Both applications were made under section 31(1) of the Matrimonial Causes Act 1973 (the Act).
Section 31(7) provides: In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, [which] shall include any change in any of the matters to which the court was required to have regard when making the order to which the application relates, and (a) in the case of a periodical payments . order made on or after the grant of a decree of divorce . , the court shall consider whether in all the circumstances and after having regard to any such change it would be appropriate to vary the order so that payments under the order are required to be made only for such further period as will in the opinion of the court be sufficient to enable the party in whose favour the order was made to adjust without undue hardship to the termination of those payments; The matters to which the court was required to have regard when making the order in 2002, even though it was made by consent, were those set out in section 25(2) of the Act.
In his judgment, which was reserved, the judge described the wifes oral evidence as not fully satisfactory.
He explained that she had been unable to give him a clear picture of her financial circumstances in the years since 2002; that, apart from her failure to explain the dramatic increase in the size of the mortgage on the house in Weybridge, she had been unable to identify the size of her income from her part time work in the earlier years, first as a beauty therapist and then for an estate agent.
He accepted that between 2004 and 2010 she had undergone no less than seven surgical procedures referable to her gynaecological difficulties and that they had affected her earning capacity at that time.
He found, however, that she had exaggerated the continuing impact, five years later, of those difficulties upon her earning capacity.
In 2010 she had reverted to work as a beauty therapist.
Her accounts for the last available year, namely to April 2014, disclosed an annual income net of tax of about 18,500.
She had then been working about three days each week.
The judge rejected her contention that ill health precluded her from working for a fourth day but accepted that she might not be able to attract the extra clients to occupy it.
He therefore ascribed to her annual net earnings of only 18,500.
The husband contends that it was a somewhat conservative figure; but it is appropriate for an appellate court to adopt it without qualification.
The judge found that the husband, by contrast, gave reliable and truthful evidence in all respects.
He had remarried and was living with his second wife, their nine year old son and an adult step daughter in a house in Guildford in which, subject to a substantial mortgage, he had a half interest.
As in 2002 he had little liquid capital.
The judge studied his earned income from the surveying companies.
They had suffered a reverse in 2012 but had slowly recovered since then and, as the husband frankly conceded at the hearing, they were likely to be thriving by 2025.
The judge ascribed to the husband an existing net annual income of 55,000 inclusive of a small salary which one of the companies chose to pay to his current wife.
It may again have been a somewhat conservative figure; but it is again appropriate for an appellate court to adopt it without qualification.
At the hearing the wifes then counsel put before the judge a breakdown of what he suggested to be the amount of her necessary annual expenditure.
The judge accepted it as very modest.
Exclusive of figures referable to the adult son, the annual total was 35,792, of which 10,200 was for rent.
Following deduction of her earnings of 18,500, the wifes annual need was therefore for 17,292.
But the judges decision was not to vary, whether upwards or downwards, the existing order for periodical payments in the annual sum of 13,200.
In other words he countenanced a shortfall of 4,092 between the wifes annual need and the husbands obligation to meet it.
The answer lies in the judges analysis of the wifes loss of the capital sum which had been awarded to her in 2002.
The judge found that: the award in 2002 would then have enabled the wife to buy a home it had however been reasonable for her to be ambitious and to secure i) free of mortgage; ii) a mortgage for the purchase of the house in Weybridge; iii) thereafter she had not managed her finances wisely; iv) like others at that time, she had committed herself to borrowings which were too high; v) or wanton; vi) but her needs had been augmented by reason of the choices which she had made.
In the light of those findings the judge decided to reject the husbands submission that the wifes need to pay rent of 10,200 should be entirely eliminated from the total annual need which it would be appropriate for him to meet.
Nevertheless it was it would be wrong to describe her approach to finances as profligate fair that the husbands contribution to the wifes needs should not include a full contribution to her housing costs.
If, however arbitrarily, one omits to ascribe any part of the wifes earnings to the payment of rent of 10,200 and treats the rent as entirely subsumed within her residual annual need of 17,292, it is easy to see that the effect of the judges decision to countenance a shortfall from that figure of 4,092 was to oblige the husband to pay 6,108 towards the rent, or 60% of it.
Although the judge had described the wifes schedule of annual needs totalling 35,792 as very modest and indeed as basic, he said that the husbands contribution should do no more than to enable her to meet her bare minimum needs, which, so he therefore implied, were properly to be reflected in an even lower figure.
The wife, he said, will have to adjust her expenditure to live within her means.
The judge found on clear evidence that the husband could afford to continue to make periodical payments in the annual sum of 13,200.
Indeed, although there was no cause for him to make a finding to this effect, it also seems reasonably clear that the husband could have afforded to pay the extra annual sum of 4,092 if it had been otherwise appropriate to order him to do so; it was certainly no part of the judges reasoning that the husband could not have afforded to pay it.
In accordance with his duty the judge then turned to consider the husbands application for him to set a fixed period upon the wifes continued receipt of the periodical payments.
But, applying section 31(7)(a) set out in para 14 above, the judge concluded, unsurprisingly, that he could not identify any fixed period as being sufficient to enable the wife to adjust without undue hardship to their termination.
It followed that the order should continue to require them to be paid on the open ended basis, namely during their joint lives until her remarriage or further order in the interim.
Although the open ended basis does not specify a fixed term for the life of the order, the circumstances which it identifies as bringing it to an end, in particular the potential for a further order ending it at any time, show how misleading (indeed, as the husband himself says, how unattractive) it is for some non lawyers to describe such an order as a meal ticket for life.
Inevitably the judge also concluded that any appropriate capitalisation of periodical payments in that continuing sum and on that continuing basis appeared to be beyond the husbands means.
So the judge dismissed both the husbands application and the wifes cross application.
Both the husband and the wife sought permission from the Court of Appeal to appeal against the respective dismissals of their applications.
The wife secured permission to do so but, in circumstances which rendered him aggrieved but are no longer relevant, the husbands application for permission was not granted likewise but was listed to be heard by the court at the time when it was to hear the wifes substantive appeal.
At the conclusion of the hearing on 1 February 2017 Sir Ernest Ryder gave an impromptu judgment, with which Longmore LJ agreed.
In his judgment Sir Ernest said that i) the judge did not give any reason why any part of the trimmed budget, that is the wifes basic needs budget, should be cut in explanation of why that shortfall should not be met; ii) budget that he, the judge, had accepted in evidence; and iii) his decision that she would have to adjust her expenditure to reduce those needs was a conclusion [which] required reasoning that is not in the judgment.
he did not explain why she should live below the basic needs
So the Court of Appeal allowed the wifes appeal by varying the order for periodical payments upwards from the annual sum of 13,200 to that of 17,292, backdated to the date of the judges judgment.
It refused the husbands application for permission to appeal to it on the ground that his proposed appeal had no prospect of success.
The husband filed a notice of appeal to this court.
He challenged the increase in the order for periodical payments directed by the Court of Appeal.
But he also purported to challenge its refusal to discharge the order for periodical payments; and, alternatively, its refusal to set a fixed period on the wifes continued receipt of them and/or to vary the amount of them downwards.
In these respects he was, however, purporting to challenge the Court of Appeals refusal to permit him to appeal to itself on these grounds and, by section 54(4) of the Access to Justice Act 1999, no appeal can be brought against a refusal of permission.
So the order of this court was to limit its permission for him to appeal to the single ground whether, in light of the fact that provision had already been made for the wifes housing needs in the capital settlement, the Court of Appeal had been entitled to interfere with the judges determination not to make full allowance for her need to pay rent in the continuing order for periodical payments.
Unfortunately the husbands advisers considered that the terms of the limited grant of permission could in some way prove broad enough to enable them to make submissions at the hearing along the wider lines of his impermissible challenge to the Court of Appeals refusal to grant him permission to appeal to it.
So at an early stage of the hearing the court had to re emphasise the limited ambit of its inquiry in this particular case.
With the greatest of respect to the Court of Appeal, and with (I believe) a full appreciation of the heavy work load under which it currently labours, it erred in saying that the judge had given no reason for declining to increase the order for periodical payments so as to enable the wife to meet all her basic needs.
The judge gave a clear reason which is summarised in paras 20 and 21 above.
So the question which the Court of Appeal should have addressed, and which this court should now address, is the question set out in para 1 above.
the Court of Appeal.
First, Pearce v Pearce [2003] EWCA Civ 1054, [2004] 1 WLR 68.
At the time of the original order in 1997 the wife had owned a flat in Chelsea free of mortgage.
Later she sold the flat; depleted the proceeds by an unfortunate speculation in Ireland; and, upon returning to live in London, could only afford to buy a flat in Fulham subject to mortgage.
The original order had also provided for the husband to make periodical payments to the wife; and the subsequent order under appeal in 2003 was to capitalise her entitlement to periodical payments, ie to discharge the order for them upon payment to her by the husband of a lump sum in lieu of them pursuant to section 31(7A) and (7B) of the Act.
The major significance of the decision of the Court of Appeal lies in its approach to the exercise of capitalising an order for periodical payments.
For present purposes, however, its significance lies in its removal of the wifes mortgage repayments from its calculation of the amount of the periodical payments to which, in the absence of capitalisation, she would then have been entitled and therefore of the amount of the lump sum to be paid by the husband in lieu of them.
Thorpe LJ said at para 36 that the judge In addressing the question, the court must consider three earlier decisions of should not have allowed the wife to discharge her mortgage at the husbands expense.
Such an indemnity violates the principle that capital claims compromised in 1997 could not be revisited in 2003.
There is simply no power or discretion to embark on further adjustment of capital to reflect the outcome of unwise or unfortunate investment on one side or prudent or lucky investment on the other.
Second, North v North [2007] EWCA Civ 760, [2007] All ER (D) 386 (Jul).
In 1981 an order by consent had provided the wife with ownership of a mortgage free house in Sheffield and of ground rents which generated a comfortable income for her.
The order had also included provision for the husband to make periodical payments to her in a nominal sum.
In 2000 the wife sold her assets in England and moved to Sydney with relatively disastrous financial consequences, which led her to apply for an upwards variation of the order for periodical payments.
The Court of Appeal set aside an order capitalising her entitlement to them in the sum of 202,000 and, although not visible in the transcript or in the report, apparently substituted a substantially lower figure.
Thorpe LJ said: 32.
In any application under section 31 the Applicants needs are likely to be the dominant or magnetic factor.
But it does not follow that the respondent is inevitably responsible financially for any established needs.
He is not an insurer against all hazards nor, when fairness is the measure, is he necessarily liable for needs created by the applicants financial mismanagement, extravagance or irresponsibility 33.
Thus in the present case the wifes failure to utilise her earning potential, her subsequent abandonment of the secure financial future provided for her by the husband, her choice of a more hazardous future in Australia, together with her lifestyle choices in Australia, were all productive of needs which she had generated and for which the husband should not as a matter of fairness be held responsible in law.
And third, Yates v Yates [2012] EWCA Civ 532, [2013] 2 FLR 1070.
Under a consent order the wife had received a substantial lump sum on the basis that she would use half of it in discharging a mortgage on her home.
In the event she had repaid only part of the mortgage debt and had invested in a non income bearing bond the sum which she had thus elected not to apply to full clearance of the mortgage.
When, later, a judge came to capitalise her right to continuing periodical payments, he included in his calculation of her need the amount of interest payable by her in respect of the residual mortgage debt.
The Court of Appeal held that the inclusion had been wrong.
Thorpe LJ said: Lewison LJ said: 12.
It seems to me little more than common sense that if a recipient of a lump sum twice the size of the mortgage on the final matrimonial home elects to hold back capital made available for the mortgage discharge in order to invest in a bond that bears no income, she cannot look to the payer thereafter for indemnity or contribution to the continuing mortgage interest payments.
That seems to me to be an absolutely self evident point. 21. the need to pay the mortgage at all arose from her own choice not to apply the lump sum in discharging the existing mortgage The financial consequences of her investment choice are her responsibility.
It is wrong in principle for the husband to have to continue to fund the mortgage.
Mr Feehan QC, who, like Ms Dunseath, nobly appears for the wife without fee, seeks to distinguish the mortgage instalments disallowed in the cases of Pearce and Yates from payments of rent.
I see no relevant distinction.
He also submits that, unlike the present case, all three of the decisions concerned the capitalisation of an entitlement to periodical payments and that what was there rightly disallowed was the insinuation into the lump sum thus payable of a sum more reflective of an impermissible second claim for capital provision than of a permissible claim for conversion into capital of an income entitlement.
Mr Feehan relies in particular on the statement of Thorpe LJ in the Pearce case, quoted at para 36 above.
I reject the submission.
As the Court of Appeal valuably established in that case, the first step in the exercise of capitalisation is a calculation of the amount of periodical payments to which, in the absence of capitalisation, the payee would then have been entitled.
It was in the course of making this calculation that in the three decisions the objectionable elements of the claim were disallowed.
Even had there been no capitalisation of the entitlement to periodical payments, those elements would therefore have been disallowed in quantifying the amount of the ongoing order for periodical payments.
The cases of Pearce, North and Yates were correctly decided.
The answer to the question posed in para 1 above is yes.
By its terms that question asks only whether a court would be entitled, rather than obliged, in the circumstances there identified to decline to require the husband to fund payment of the rent.
Its reference to the courts entitlement to do so serves to respect the wide discretion conferred upon it by section 31(1) and (7) of the Act in determining an application for variation of an order for periodical payments.
But, in the passages quoted above, the Court of Appeal has expressed itself in forceful terms; and a court would need to give very good reasons for requiring a spouse to fund payment of the other spouses rent in the circumstances identified by the question.
A spouse may well have an obligation to make provision for the other; but an obligation to duplicate it in such circumstances is most improbable.
The judge was clearly entitled to decline to vary the order for periodical payments so as to require the husband to pay all of the wifes rent.
The order of the Court of Appeal should be set aside and his order restored.

Output:
The Appellant and Respondent are former husband and wife.
They divorced in 2002 after a marriage of approximately fifteen years, and the financial issues in the divorce were resolved by way of a consent order.
Under the terms of that order the wife received 230,000 in settlement of her capital claims against the husband, and it was also agreed that the husband would make periodical payments to her at an annual rate of 13,200.
It was reasonably anticipated by the husband that the wife would use the 230,000 to purchase a suitable home for herself and their son without a mortgage, as the wife had been suffering from ill health which made it difficult for her to work.
In the event, however, the wife did manage to take out a mortgage, and she duly purchased a more expensive home for 345,000.
Between 2002 and 2009 the wife sold and purchased a series of different properties, and with each purchase the amount which she borrowed increased.
In addition, she did not necessarily reinvest all of the sale proceeds from one property into the next and seemingly spent the balance, with the result that the amount of capital she had decreased over time.
Eventually, in 2009 the wife sold her final property and began to rent accommodation.
By April 2015, when the first instance judge heard the case, the wife had no capital, and she had debts of around 42,000.
The hearing before the judge was to determine two cross applications made under s.31(1) of the Matrimonial Causes Act 1973.
The husband had applied for the discharge or downwards variation of the order for periodical payments, whereas the wife had applied for the order for periodical payments to be varied upwards.
In determining the applications the judge noted that there was a shortfall of 4,092 per annum between the wifes current needs and, when coupled with her own earnings, the existing level of the periodical payments.
However, he also held that, although the wifes actions had not been profligate, she had not managed her finances wisely and her current financial needs, in particular her need to pay rent, had been increased by the choices which she had made.
Consequently, the judge considered that it would be unfair to the husband if he had to make a full contribution to the wifes rental costs.
The judge therefore declined to vary the order for periodical payments either upwards or downwards.
This meant that the husband would continue to contribute to around 60% of the wifes rental costs, and the wife would have to adjust her expenditure to accommodate the shortfall.
The wife appealed against this decision to the Court of Appeal, and was successful.
The Court of Appeal considered that the judge had not given sufficient reasons why all of the wifes basic needs should not be met by the periodical payments from the husband, and increased the level of periodical payments to cover her shortfall, i.e. to 17,292.
The husband now appeals against this decision to the Supreme Court.
The Supreme Court unanimously allows the appeal, concluding that the judge was entitled to decline to vary the order for periodical payments so as to require the husband to pay all of the wifes rental costs.
Lord Wilson gives the judgment with which Lady Hale, Lord Carnwath, Lord Hughes and Lord Hodge agree.
The husband was granted permission to appeal to the Supreme Court only on a single ground whether, in light of the fact that provision had already been made for the wifes housing needs in the capital settlement, the Court of Appeal was entitled to interfere with the judges decision not to increase the periodical payments so as to cover all of the wifes current rental costs [32].
The Court of Appeal had erred in saying that the judge had given no reason for declining to increase the order for periodical payments the judge had given a clear reason, namely that the wifes unwise decisions in relation to her capital had increased her basic needs by requiring her to pay rent, and that it was consequently unfair to expect the husband to meet these increased needs in full [33].
The Court of Appeal should have considered the impact of the original capital payment on the wifes current need to pay rent, and this involved a consideration of three earlier Court of Appeal authorities: Pearce v Pearce [2003] EWCA Civ 1054, North v North [2007] EWCA Civ 760, and Yates v Yates [2012] EWCA Civ 532 [34 38].
These cases were correctly decided and in light of this the judge was entitled, although not obliged, to decline to require the husband to fund payment of the rent in full.
This respects the wide discretion conferred upon the court under section 31(1) and (7) of the Matrimonial Causes Act 1973 in determining an application for variation of an order for periodical payments.
Moreover, a court would need to give very good reasons for requiring a spouse to fund payment of the other spouses rent in the circumstances of this case.
A spouse may well be obliged to make provision for the other spouse, but an obligation to duplicate that provision in situations such as this is improbable [40].


Input:
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.
Factual background
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 cherubs 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 January1987 (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 Dills 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.
Procedural history
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 structures 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).
Legislation
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) enables the list to indicate that particular objects or structures mentioned in subsection (5)(a) or (b) are not to be treated as part of the building for the purposes of this Act; or that any part or feature of the building is not of special architectural or historic interest.
In this judgment I shall refer to the second part of subsection (5) (and for the purposes of ) as the extended definition.
I shall refer to objects or structures within paragraph (b) as curtilage structures.
The word building is not separately defined in this Act.
By section 91(2), except where the context otherwise requires, it has the same meaning as in section 336 of the Town and Country Planning Act 1990 which provides: Building includes any structure or erection, and any part of a building, as so defined, but does not include plant or machinery comprised in a building.
Section 7 provides that no person shall execute or cause to be executed any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest, unless the works are authorised under section 8.
By section 9(1), if a person contravenes section 7, he shall be guilty of an offence.
Section 8 provides for listed building consent to be granted by a local planning authority or the Secretary of State, and section 10 makes provision for the making of applications for such consent.
Section 16(1) provides that the local planning authority or the Secretary of State may grant or refuse an application for listed building consent and, if they grant consent, may do so subject to conditions.
By section 16(2), in considering whether to grant consent, the local planning authority or the Secretary of State: shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.
Section 20(1)(a) confers the right to appeal to the Secretary of State against a refusal of consent by a local planning authority.
By section 21(3): The notice of appeal may include as the ground or one of the grounds of the appeal a claim that the building is not of special architectural or historic interest and ought to be removed from any list compiled or approved by the Secretary of State under section 1.
By section 22(1), on an appeal the Secretary of State may deal with the application as if it had been made to him in the first instance, and may exercise his power under section 1 to amend any list compiled under section 1 by removing from it the building to which the appeal relates.
Section 20 appeals may be determined by a person appointed by the Secretary of State (in other words a planning inspector) who has the same powers as the Secretary of State.
Section 62 provides: (1) Except as provided by section 63, the validity of [a decision on an appeal under section 20] shall not be questioned in any legal proceedings whatsoever.
Section 63(1) provides for a challenge by way of application to the High Court on legal grounds.
Section 38 confers a power on a local planning authority to issue listed building enforcement notices.
Section 39(1) provides for an appeal from such a notice to the Secretary of State on any of the following grounds (so far as potentially relevant to this appeal): (a) interest; (b) section 9(1) have not occurred; that the building is not of special architectural or historic
that the matters alleged to constitute a contravention of
Section 41(6): that those matters (if they occurred) do not constitute (c) such a contravention; (d) ; (e) that listed building consent ought to be granted for the works, or that any relevant condition of such consent which has been granted ought to be discharged, or different conditions substituted; On the determination of an appeal the Secretary of State may (a) grant listed building consent for the works to which the listed building enforcement notice relates or for part only of those works; (b) ; (c) if he thinks fit, exercise his power under section 1 to amend any list compiled or approved under that section by removing from it the building to which the appeal relates.
Section 64 provides: The validity of a listed building enforcement notice shall not, except by way of an appeal under section 39, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought.
Section 65 gives a right to appeal to the High Court on legal grounds against a decision of the Secretary of State or inspector on an enforcement appeal under section 39.
The first issue is designation as a listed building conclusive?
Without disrespect to the courts below, I can deal with the first issue relatively shortly.
The principles are not in doubt.
As Mr David Elvin QC for the Secretary of State rightly accepts (in the words of his written submissions, citing Boddington v British Transport Police [1999] 2 AC 143): The issue of statutory construction 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, and there is a strong presumption that Parliament will not legislate to prevent individuals from doing so.
The same principle is reflected in the European Convention on Human Rights article 6, under which an individual must have a clear, practical opportunity to challenge an act that is an interference with his rights: Bellet v France CE:ECHR:1995:1204JUD002380594, para 36.
However, as Mr Elvin also correctly submits, that principle needs to be read in the context of the particular statutory scheme in question (citing Lord Hoffmann in R v Wicks [1998] AC 92, 117B).
In the present scheme, he submits, identification as a building is not one of the matters that can be questioned through the statutory appeal route; but the right to challenge the validity of the listing by judicial review provides the fair opportunity required by the principle.
Wicks is of particular relevance because it arose under the parallel enforcement provisions for breach of planning control.
It concerned a prosecution for failure to comply with an enforcement notice for breach of planning control under the Town and Country Planning Acts.
The relevant statute had a provision (in similar terms to section 64 of the Listed Buildings Act: see para 19 above) excluding challenges to the validity of an enforcement notice other than by the statutory appeal procedure.
It was held that on a proper construction of the relevant provisions all that was required to be proved in the criminal proceedings for breach of an enforcement notice was that the enforcement notice issued by the local planning authority was formally valid, and that it was not open to the defendant to raise other public law challenges to its validity, such as bad faith, bias or procedural impropriety (residual grounds), by way of defence to the charge.
In my view that authority if anything supports the appellants case.
There was no issue but that the enforcement appeal could encompass every aspect of the planning case.
As Lord Hoffmann said (p 122D): I do not think that in practice hardship will be caused by requiring the residual grounds to be raised in judicial review proceedings.
The statutory grounds of appeal are so wide that they include every aspect of the merits of the decision to serve an enforcement notice.
The residual grounds will in practice be needed only for the rare case in which enforcement is objectively justifiable but the decision that service of the notice is expedient is vitiated by some impropriety.
As Keene J said in the Court of Appeal, the owner has been served with the notice and knows that he has to challenge it or comply with it.
His position is quite different from that of a person who has contravened a byelaw, who may not have heard of the byelaw until he contravened it. (Emphasis added) If in that context fairness requires that the grounds of appeal should extend to every aspect of the merits of the enforcement action in planning cases, it is hard to see why it should be any different in the context of a listed building enforcement notice.
In particular, as will appear from the cases considered later in this judgment, whether a particular structure constitutes a building, and its erection a building operation, is an issue which may undoubtedly be raised in the context of a planning enforcement appeal.
As those cases show, it may raise difficult issues of factual judgement, which are much more appropriate for a planning inspector than for the High Court in judicial review.
No convincing reason was offered as to why the question whether something qualifies as a building should be treated in a different way in the listed building context.
One advantage of allowing these issues to be dealt with through the planning appeal route is that it enables the inspectorate, with appropriate legal advice, to develop workable criteria on a case by case basis.
Mr Elvin points to the desirability of certainty as to the identification of listed buildings, which may have to be considered as material considerations in various statutory contexts.
He cites for example Lord Hope of Craighead in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447: The Act assumes, in regard to the statutory procedures, that the question whether or not the building is a listed building can be determined simply by inspecting the list which the Secretary of State has prepared.
That of course is correct as a general proposition, but it says nothing about the circumstances in which a listing may be questioned.
Similar uncertainty attaches to the possibility of a successful appeal (under ground (a)) on the grounds of lack of special interest.
Against the desirability of certainty, is the fact that (unlike breach of planning control) contravention of listed building control is a criminal offence, whether or not an enforcement notice is served.
In that context the starting point must be the presumption that the accused should be able to raise any grounds relating to the lawfulness of the proceedings on which the prosecution is based (see eg R v Wicks at p 106 per Lord Nicholls of Birkenhead).
Furthermore, Mr Elvins argument overlooks the form of the statutory definition of listed building.
A listed building means a building which is included in [the] list .
Thus there are two essential elements: it must be both a building and it must be included in [the] list .
If it is not in truth a building at all, there is nothing to say that mere inclusion in the list will make it so.
Section 7 prohibits the demolition of a listed building, and section 9(1) makes contravention of section 7 a criminal offence.
There is nothing to prevent the accused arguing that the item on the list is not a building and so not within the definition.
Short of a specific provision that the listing is to be treated as conclusive for such purposes, there is no reason to displace the ordinary presumption that the accused may raise any relevant defence.
Notably there is no equivalent to the exclusivity provision of section 64.
If that is the case under section 9, then the same approach applies to the grounds of appeal under section 39.
Under section 39(1)(c) the appellant can argue that the the matters alleged to constitute a contravention of section 9(1) do not constitute such a contravention.
If there would be no contravention of section 9(1), because the relevant item is not a building, there is no reason why the same point cannot be taken under section 39.
If that ground is made out on the facts, the Secretary of State has power to deal with the matter by removing it from the list.
There might be a theoretical question whether this would operate retrospectively, so as to preclude any further action based on the original listing.
However, I do not see that as a practical problem, given that there would be an authoritative decision by the Secretary of State to cancel the listing, specifically on the grounds that the items were not properly categorised as buildings.
That would carry with it the clear implication that they should never have been listed in the first place, and should be sufficient in practice (if not in law) to protect the owner against any further proceedings.
Accordingly, I would allow the appeal on the first issue.
In principle (subject to consideration of the second issue), this means that the enforcement appeal must be remitted to the Secretary of State for redetermination.
I am conscious that there is before us also an appeal in respect of the
application for listed building consent.
Although this may in theory raise different legal issues, I do not understand them to have any practical consequences in this case which cannot be dealt with in the context of the enforcement appeal.
Subject to any submissions to the contrary, it should be possible to leave that aspect to be dealt with so far as necessary by agreement between the parties.
The second issue were they buildings?
On one view, if the appeal has to be remitted to the Secretary of State in any event, it might be better to leave the second issue for consideration at that level.
However, there is in my view a need for more general guidance as to the legal principles in play.
This case has revealed 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.
Even now, in spite of the issue having been raised by Mr Dill in 2015, and after a planning appeal and three court hearings, he has had no official explanation of the criteria by which it was determined that these items qualified as buildings.
It is useful to begin by looking at the wide variety of items which may fall to be considered, before going on to look at the development of the relevant legislation, and case law, and its application to different categories, including the items in issue in this case.
Garden and Park Structures
A good idea of the significance and variety of structures under potential consideration for listing purposes is given by a publication by Historic England Garden and Park Structures Listing Selection Guide (December 2017).
This is one of 20 listing selection guides issued by Historic England, which has adapted and updated the selection guides originally issued by English Heritage in 2011.
The Garden and Park Structures guide overlaps with other listing selection guides, including those for commemorative structures and for street furniture (including items such as fountains).
The introduction explains its purpose: This selection guide is devoted to individual built structures found in gardens and parks, rather than the designed landscapes themselves All designed landscapes are likely to contain buildings and other hard landscaping features such as balustraded terraces that will often make a positive contribution to the overall character of the place.
This selection guide helps identify which structures meet the test of special interest for listing. (p 1)
The following pages contain a fascinating historical survey of the role of such structures in designed landscapes, parks and gardens since medieval times.
It makes clear the extraordinary variety of objects or structures apparently considered for listing, by no means limited to features such as balustraded terraces.
I take three examples: i) Wrest Park itself, as it was in the 19th century (p 5), is given as an example of reversion to the severely formal fashions of the 17th and earlier 18th centuries: with terraces, balustrades, vases, basins and fountains, elaborate steps and gateways, seats, summerhouses, and statuary.
Some of these latter features, it is said, were industrially produced, moulded from terracotta, Coade stone, or cast iron.
A photograph shows the restored parterre at Wrest Park, with formal planting and some large classical statues, which appear to be an intrinsic part of the design.
We were informed by Mr Elvin that these are not fixed in place other than by their own weight, and are separately listed as buildings in their own right.
On the same page, the guide also refers to raised terraces, which were sometimes decorated with elaborate flower urns.
At p 10 the guide refers to statuary, urns and other features such as sundials and astronomical devices which adorned formal gardens; and at p 11 it states that even when these have been moved from elsewhere, pre 1850 examples will generally merit designation. ii) A more recent item is shown by a photograph of Henry Moores Reclining Woman (1947), at Dartington Hall, a large stone sculpture resting on a substantial stone base, said to be listed Grade II (p 7). iii) Perhaps the most unusual example is the group of 27 life size Crystal Palace dinosaurs (listed Grade I), survivors from an exceptional High Victorian pleasure ground created in the early 1850s, [which] show the singularity park features could sometimes attain. (p 18)
Although the guide gives much useful information about the assessment of the historic interest of such objects and uses the word structures to describe them, it contains no discussion of the criteria by which they are to be treated as buildings within the statutory definition, nor in particular whether they are thought to qualify in their own right, or under the extended definition.
I will return to this issue in the next section of this judgment.
In considering the correct legal and policy approach to such garden and park structures, it is also important to bear in mind the limited protection available for the gardens and parks themselves.
It was not until 1983 that there was any statutory recognition of the need to identify and safeguard historic gardens.
Section 8C of the Historic Buildings and Ancient Monuments Act 1953, introduced by paragraph 10 of Schedule 4 of the National Heritage Act 1983, provided for the preparation by English Heritage of a register of gardens and other land situated in England and appearing to them to be of special historic interest.
No doubt for practical reasons, there is no statutory protection for the garden layout itself nor any restriction on works within a registered garden, but being on the register may be required to be taken into account as a material factor in a range of planning decisions.
There is no protection for garden and park structures as part of a registered garden as such.
If the garden is attached to a listed building, they may be protected as curtilage structures, under the extended definition, but as part of the listed building, not of the garden.
Identifying a building legislation and case law
As has been seen, although listed building control has a long history, dating back before the Town and Country Planning Act 1947, the provisions were substantially recast in the Town and Country Planning Act 1968. (There is a detailed history in Shimizu (UK) Ltd v Westminster City Council [1997] 1 WLR 168, 175 per Lord Hope.
That case itself was concerned with a relatively narrow issue relating to the scope of demolition and is of no direct assistance in this case.)
Protection is given to buildings as defined.
For this purpose, as already noted, the statute adopts the ordinary planning definition of building as including a structure or erection.
The one significant variation comes in the extended definition, that is the provision that certain objects or structures are to be treated as part of the building, if they are either fixed to the building or within the curtilage of the building and form[ing] part of the land (subject, since 1986, to an exception for those placed since July 1948).
It is important to note that the extended definition does not result in the item in question becoming a listed building in its own right; it merely results in its being treated as part of the building to which it is attached, or in whose curtilage it stands.
That is to be distinguished from the circumstances in which a garden object or structure may qualify for listing as a building in its own right.
Unfortunately, this critical distinction is blurred in the other official guidance to which we were referred.
That is a Department for Digital, Culture, Media and Sport publication Principles of Selection for Listed Buildings (November 2018).
This states: For the purposes of listing, a building includes any structure or erection and a listed building includes any object or structure: (a) fixed to it; or (b) within its curtilage which, although not fixed to it, forms part of the land and has done so since before 1 July 1948, unless the list entry expressly excludes such things.
In some cases, such as for works of art or sculptures, it will be necessary to consider the degree and purpose of annexation to the land or building to determine whether it may be listed under the 1990 Act. (para 6) This acknowledges (rightly as will be seen) the relevance of the degree and purpose of annexation in considering whether a work of art or sculpture forms part of the land under the extended definition.
But the second sentence might be taken to confuse that issue, relevant to whether the sculpture is to be treated as part of a building already on the list, with the distinct question whether the sculpture itself may be listed under the 1990 Act as a separate entry.
This depends upon whether the sculpture constitutes a building, in the sense of being a structure or erection within the statutory definition, in relation to which the degree and purpose of annexation to the land may be relevant factors but are not necessarily conclusive.
In what follows it will be convenient to consider first the application of the extended definition to free standing objects such as sculptures, before considering the criteria by which they might be treated as buildings in their own right.
Garden objects or structures under the extended definition
The extended definition, first introduced in the Town and Country Planning Act 1968, seems to have been designed to clarify the position following the case of Corthorn Land and Timber Co Ltd v Minister of Housing and Local Government (1966) 17 P & CR 210.
Corthorn concerned a building preservation order made under section 30(1) of the Town and Country Planning Act 1962, prohibiting the removal from a listed building of various portrait panels, wooden panels, a large wood carving of the Crowning with Thorns, and a large wooden equestrian figure of St George and the Dragon.
The issue was whether they were part of the listed building.
In deciding that they were, Russell LJ applied a property law approach, saying: It is not, in my judgment, open to serious doubt that these items were all fixed and annexed in their places as part of the overall and permanent architectural scheme and intended in every sense to be annexed to the freehold (p 217) In Debenhams plc v Westminster City Council [1987] AC 396, 408 409 Lord Mackay of Clashfern confirmed that the word fixed in the extended definition was to have the same connotation as in the law of fixtures so that any object or structure fixed to a building should be treated as part of it, thereby put[ting] beyond question the matter that was decided by Russell LJ in the Corthorn case .
Corthorn was not concerned with objects or structures within the curtilage of a listed building.
We were not referred to any contemporary information as to the derivation of that part of the extended definition in the 1968 Act.
It can be assumed to have been a recognition of the important part often played by such objects in the overall architectural composition or setting of a listed building, even though the architectural quality of the curtilage structure itself is not part of the test.
The requirement that they should form part of the land is clearly designed to tie this part of the definition, like the first part, to real property concepts under the common law.
It is not known what if any assumptions would have been made in 1968 about how the common law would treat statues or other ornamental objects resting only by their own weight.
Reliance may have been placed on the then current edition of Megarry & Wade, The Law of Real Property, 3rd ed (1966) which stated: Statues, figures, vases and stone garden seats have been held to become part of the land because they are essentially part of the design of the house and grounds, even though standing by their own weight.
This was supported by a footnote reference to DEyncourt v Gregory (1866) LR 3 Eq 382, but with a cautionary note: the authority of this decision is not great; see De Falbe [1901] 1 Ch 523, at 531, 532.
Some years after the 1968 Act the treatment of such objects in real property law was considered by the Court of Appeal in Berkley v Poulett [1977] 1 EGLR 86.
The dispute was about certain pictures and other objects which, it was said, should pass as fixtures on the sale of a house.
The disputed items included a statue and sundial in the garden.
The court was agreed that the sundial was a chattel, but there was disagreement as to the sculpture.
Scarman LJ, in the leading judgment (pp 88 89), with which Stamp LJ in substance agreed (p 96), explained that, following Leigh v Taylor [1902] AC 157: The answer today to the question whether objects which were originally chattels have become fixtures, that is to say part of the freehold, depends upon the application of two tests: (1) the method and degree of annexation; (2) the object and purpose of the annexation.
Having discussed the principles and the other objects in dispute, he turned to the statute and sundial.
The latter was a small object which had been detached from its pedestal many years earlier and thus ceased to be part of the realty.
Of the statue he said: The statue was heavy.
It weighed 10 cwt and stood 5 ft 7 in high on its plinth.
There is an issue as to whether it was cemented into the plinth or rested on its own weight.
The question is not decisive, for, even if it was attached by a cement bond, it was (as events proved) easily removable.
However, upon the balance of probability, I agree with the Vice Chancellor in thinking it was not attached.
The best argument for the statue being a fixture was its careful siting in the West Lawn so as to form an integral part of the architectural design of the west elevation of the house.
The design point is a good one so far as it goes: it explains the siting of the plinth, which undoubtedly was a fixture.
But what was put upon the plinth was very much a matter for the taste of the occupier of the house for the time being.
We know that at one time the object on the plinth had been a sundial.
At the time of the sale it was this statue of a Greek athlete.
The plinths position was architecturally important: it ensured that whatever stood on it would be correctly positioned.
But the object it carried could be whatever appealed to the occupier for the time being.
Sundial or statue it did not matter to the design, so long as it was in the right place a result ensured by the plinth which was firmly fixed into the ground.
Being, as I think, unattached, the statue was, prima facie, not a fixture, but, even if it were attached, the application of the second test would lead to the same conclusion.
Goff LJ took a different view of the statue (p 90) which had been placed at a focal point in the grounds, not for better enjoyment as a chattel but for the permanent enhancement of the beauty of the grounds, a case where resting upon its own bulk was a sufficient annexation.
On that point he regarded DEyncourt v Gregory (1866) LR 3 Eq 382 as still authoritative, not overlooking the criticisms in In re De Falbe [1901] 1 Ch 523, which in his view related to the inferences drawn from the facts, rather than the principle that a thing may be a fixture because it is part of the architectural design.
As I read the judgments the difference was not as to the principle, but as to its application to the particular facts.
This view accords with the current 9th edition of Megarry & Wade, (2019) para 22.010, which repeats the relevant passage from the earlier editions, with the same case references, but adds: the principle that an object resting on its own weight can be a fixture if it is part of the overall design of the property has been approved: Berkley v Poulett [1977] 1 EGLR 86 at 89.
Although that is not a precise formulation, it follows in my view that 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.
Further confirmation of that approach can be found in a much more recent judgment of the High Court.
It was held that a Henry Moore bronze sculpture Draped Seated Women, weighing 1,500 kg and resting on a plinth, which in 1962 had been placed by the London County Council in a new housing estate, under its policy of promoting works of art in public places, remained a chattel rather than part of the land (Tower Hamlets London Borough Council v Bromley London Borough Council [2015] EWHC 1954 (Ch); [2015] LGR 622).
The judge (Norris J) noted as material that the sculpture was an entire object in itself, resting by its own weight on the ground, and able to be removed without damage, and that it did not form part of an integral design of that estate (para 17).
Garden objects or structures as buildings
object or structure may qualify as a listed building in its own right.
Both sides have referred to the so called Skerritts test, that is a three fold test which involved considering size, permanence and degree of physical attachment.
That formulation was derived from the judgment of Schiemann LJ in the Court of Appeal in Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions (No 2) [2000] JPL 1025, para 39.
It can in I turn to the criteria which might be relevant in determining whether such an turn be traced back through the leading planning case on the definition of building in the planning statutes (Barvis Ltd v Secretary of State for the Environment (1971) 22 P & CR 710, DC), and to the judgment of Jenkins J in a rating case Cardiff Rating Authority v Guest Keen Baldwins Iron and Steel Co Ltd [1949] 1 KB 385.
The Cardiff case was concerned with a different expression (plant in the nature of, a building or structure) in a different statutory context.
In Barvis and Skerritts, however, the decisions turned on whether the item in question qualified as a building for the purpose of the definition in the relevant planning statute, which is the same definition (now contained in section 336 of the Town and Country Planning Act 1990) which applies for the purposes of the Listed Buildings Act.
They refer to the Cardiff case for that purpose.
The meaning of building was relevant to deciding whether the operations in issue qualified as building operations, as part of the statutory definition of development.
The Cardiff case is relevant principally for a passage in the judgment of Jenkins J (pp 402 403) from which the three fold test was later derived.
In addressing the question whether certain apparatus was or was in the nature of a building or structure, he said (as quoted by Bridge J in giving the leading judgment in Barvis (1971) 22 P & CR 710, 716): The general range of things in view consists of things built or constructed.
I think, in addition to coming within this general range, the things in question must, in relation to the hereditament, answer the description of buildings or structures, or, at all events, be in the nature of buildings or structures.
That suggests built or constructed things of substantial size: I think of such size that they either have been in fact, or would normally be, built or constructed on the hereditament as opposed to being brought on to the hereditament ready made.
It further suggests some degree of permanence in relation to the hereditament, ie, things which once installed on the hereditament would normally remain in situ and only be removed by a process amounting to pulling down or taking to pieces.
I do not, however, mean to suggest that size is necessarily a conclusive test in all cases, or that a thing is necessarily removed from the category of buildings or structures or things in the nature of buildings or structures, because by some feat of engineering or navigation it is brought to the hereditament in one piece.
The question whether a thing is or is not physically attached to the hereditament is, I think, certainly a relevant consideration, but I cannot regard the fact that it is not so attached as being in any way conclusive against its being a building or structure or in the nature of a building or structure.
Nor can I regard the fact that a thing has a limited degree of motion in use, either in relation to the hereditament or as between different parts of itself, necessarily prevents it from being a structure or in the nature of a structure, if it otherwise possesses the characteristics of such.
As Bridge J held in Barvis at pp 716 717, in a judgment with which Lord Parker CJ and Widgery LJ agreed, if one substitutes throughout that passage the phrase structure or erection for the phrase structure or in the nature of a structure, this guidance is fully applicable to the considerations which govern the application of the definition in the Town and Country Planning Act 1962 (ie in section 221 of that Act, now re enacted as section 336 of the 1990 Act).
Barvis was concerned with alleged development comprising the laying of a length of steel track and the mounting thereon of a moveable tower crane some 89 feet in height.
The court upheld the Secretary of States view (disagreeing with the planning inspector) that it involved a building operation.
Bridge J, giving the leading judgment, cautioned against reliance on the application of tests from real property law as to what amount to fixtures, rather than focusing on the statutory definition in the Act.
He asked himself if the crane when erected was a building as defined, and said that if it was: I should want a great deal of persuading that the erection of it had not amounted to a building or other operation.
Building includes any structure or erection.
If, as a matter of impression, one looks objectively at this enormous crane, it seems to me impossible to say that it did not amount to a structure or erection.
He found nothing in the statutory context to displace that impression: I would be very surprised if the planning legislation did not give to a planning authority the opportunity to control this kind of operation, and, in my judgment, this crane was not the less a structure or erection by reason of its limited degree of mobility on its rails on the site, nor by reason of the circumstance that at some future date, uncertain when it was erected, the appellants contemplated that it would be dismantled and the rails and beams broken out of their concrete beds and that it would be transported in pieces to other sites where it would be re erected for use in contract work. (pp 715 716) That view was confirmed by reference to the passage cited above from the judgment of Jenkins J in the Cardiff case.
Bridge J distinguished a previous planning case, Cheshire County Council v Woodward [1962] 2 QB 126, DC, in which it was held that the Minister of Housing and Local Government had not erred in finding that the placing on a site of a mobile hopper and a mobile conveyancer, some 16 to 20 feet high, did not amount to development.
Skerritts itself is of importance, both because it was the first time that the issue was considered at Court of Appeal level, and also because the three fold test derived from the Cardiff case was treated as of general application in the planning context.
It is also useful as an illustration of how the planning inspector was able to treat those tests as workable guidance in a very different factual situation from that considered in the earlier cases.
In the definition of building, Parliament has used the general concepts of erection and structure, rather than more precise and specific terms, and these are applicable across a very wide range of cases.
Therefore, the application of the definition requires an evaluative judgment to be made.
The Court of Appeal confirmed that where the relevant decision maker, in that case the inspector, directs himself by reference to Barvis and the guidance in the Cardiff case and arrives at a rationally defensible conclusion, his decision on the application of the statutory definition will be upheld as lawful.
The case itself related to a marquee erected in the grounds of a hotel, and retained on site between February and October each year.
On appeal against an enforcement notice, the inspector had concluded that it was to be regarded as a building for planning purposes and that its erection was a building operation requiring planning permission.
In respect of its size and method of assembly he said: The marquee is a substantial object which is about 40m long, including the additions, and some 17m wide and the ridge height is around 5m There is no direct evidence before me of the assembly method or period, but from my inspection, I consider that it took several days with a number of erectors and amounted to a sizable and protracted event.
I imagine that its dismantling follows much the same process.
It is assembled on site, not delivered ready made.
I do not regard its considerable bulk to be de minimis in relation to planning controls.
It was sitting on square metal plates which are spiked to the soil beneath and appeared to be held in place by its own considerable weight, the internal bracing and the ground spikes.
The timber floor was supported by metal ground beams resting on the land.
He concluded: I conclude that, as a matter fact and degree, the marquee, due to its ample dimensions, its permanent rather than fleeting character and the secure nature of its anchorage, is a structure which is to be regarded as a building for planning purposes The main issue in the Court of Appeal was whether the marquee had a sufficient degree of permanence to qualify as a building.
The court held that the inspector had been entitled to arrive at the conclusion that he did.
None of these cases is of direct assistance in deciding how to categorise an object of artistic significance in the listed building context.
It is notable that in both Barvis and Skerritts there was a clear move away from real property analogies.
That seems to me correct.
As has been seen, real property concepts are relevant to the extended definition, but there is nothing to import them into the basic definition of building.
Skerritts provides clear authority at Court of Appeal level for the three fold test, albeit imprecise, of size, permanence and degree of physical attachment.
No preferable alternative has been suggested in this court.
Given that the same definition of building is adopted in the Listed Building Act, it is difficult to see any reason in principle why the same test should not apply.
On the other hand, notwithstanding the apparent width of the statutory definition, the mere fact that something had been erected on land was not sufficient to make it a building.
Skerritts is a good illustration of the practical application of the relevant tests, and in particular of the importance of the method of erection (a sizable and protracted event It is assembled on site, not delivered ready made).
In addition to the fact that installation occurred by erection, the degree of permanence of the location of the item on the site was significant.
In the listed building context that need for something akin to a building operation when the structure is installed can be seen as the counterpart to the reference to works for the demolition as the relevant contravening act under section 7 of the Listed Buildings Act, which clearly envisages some form of dismantling (ie pulling down or taking to pieces in the words of Jenkins J in the Cardiff case) when the item is removed from the site.
It is also important to keep in mind the purpose of listed building control, which is to identify and protect buildings of special architectural or historic interest.
It is not enough that an object may be of special artistic or historic interest in itself; the special interest must be linked to its status as a building.
That is implicit in the reference to architectural interest.
But it is relevant in my view also to the concept of historic interest.
The historic interest must be found not merely in the object as such, but in its erection in a particular place.
For completeness I should note that no assistance is to be gained from another case mentioned by the inspector: R (Judge) v First Secretary of State [2005] EWHC 887 (Admin); [2006] JPL 996.
The inspector cited Sullivan Js statement (para 17) that the treatment of items as a matter of property law was wholly irrelevant.
But that was said in relation to the quite different question whether the dismantled components of something which had unquestionably been a listed building could, by the process of dismantling, become chattels rather than buildings and thereby lose their statutory protection as such.
Not surprisingly the court rejected that interpretation as wholly incompatible with the purpose of the legislation.
It throws no light on the present issue.
At this point, it may be useful to consider how the Skerritts criteria might apply to the various forms of garden structure identified in the guide discussed in the previous section.
In doing so I emphasise that we have not heard any detailed submissions on these matters.
Nor were we shown any commentary which was critical of the existing guides from the Department for Digital, Culture, Media & Sport and Historic England.
Taking the three examples selected above from the Historic England guide (para 31), the latter two are readily understandable.
Even if the Dartington statue is resting by its own weight, the plinth appears as a substantial built structure, and together they appear to form an integral design for the site in which it is placed.
Similarly, the Crystal Palace dinosaurs, having regard to their relative size and permanence (whether or not physically attached to the land) could reasonably have been seen as buildings in their own right.
But the first of the examples is more debatable.
It is hard to see how it could be appropriate to include without discrimination items such as vases, basins seats, . and statuary, without any indication of how they might be brought within any part of the definition, whether as separate buildings or as curtilage structures under the extended definition.
In particular, most ordinary forms of garden vases or seats would be unlikely to have become part of the land in real property terms, nor would they naturally be regarded as buildings under any of the tests considered above.
The present case
I return finally to the two items at issue in this case.
It is not, as I understand it, suggested that they would have qualified for protection as curtilage structures within the extended definition.
I agree.
It seems clear that, whatever might have been the position had they remained in Wrest Park, the vases and their piers did not fall to be treated as part of the listed building of Idlicote House.
Not only had they had been placed on the land after July 1948, but also, being freely movable, there is no suggestion that they were related in any relevant way to the design of that particular listed building and its setting.
The applicable real property tests were not satisfied.
How then might they fare under the Skerritts criteria: size, permanence and degree of physical attachment? Again in the absence of full submissions anything we say can only be provisional.
There are arguments both ways.
On the one hand, it can be said, they 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 greater permanence than the marquee in Skerritts).
On the other hand, they are not particularly large, compared for example with the items considered in the three planning cases.
It may also be relevant that the vases themselves, which are the real focus of the special interest, are physically separate.
If they had been resting on the ground, rather than a plinth, I doubt if it would have occurred to anyone that they might qualify as buildings.
Relevant also is the apparent ease of their installation and removal (as compared for example to the works in Skerritts).
These are issues which can only be satisfactorily investigated and determined in the context of a renewed appeal.
Conclusion
The second agreed issue asks us simply to determine whether the Skerritts criteria for identifying a building are also relevant in the listed building context.
For the reasons given above I would answer that question in the affirmative.
As indicated above, I do not think it is possible or appropriate for us to reach a concluded view on how those tests should be applied in this case.
Not only do we not have a full view of the facts, but the issue also involves questions of factual evaluation which are best dealt with by a planning inspector in the context of a renewed appeal.
I would in any event urge those responsible on the part of the Secretary of State to consider the criticisms I have made about the lack of reliable guidance in the existing publications on this subject.
I understand that this will be deeply frustrating for Mr Dill.
There is as I
understand it no suggestion that he acted other than in good faith in disposing of items which he believed to be his own disposable property, and had been so treated by his family for several decades.
Since this problem was first drawn to his attention by the local authority in April 2015 he has been attempting to obtain a clear ruling on that issue.
On the view I have taken, that opportunity has been wrongly denied to him for five years.
Even if his appeal were ultimately to fail, the practicability of restoring the vases to their previous location in the grounds of Idlicote House is uncertain.
Accordingly, this courts formal order for remittal should not prevent the respondents from giving serious consideration to whether in all the circumstances it is fair to Mr Dill or expedient in the public interest to pursue this particular enforcement process any further.

Output:
This appeal raises two important questions about the interpretation and application of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Listed Buildings Act).
The case concerns the correct treatment of a pair of early 18th century lead urns resting on limestone pedestals (the items).
The items were originally commissioned for a historic garden at Wrest Park in Bedfordshire where they remained until 1939 but have been moved a number of times since then.
In 1973 they were moved by Major Dill (Mr Dills father) to the garden of Idlicote House.
In June 1986 the items were added to the list of listed buildings under s.54 of the Town and Country Planning Act 1971.
There is no record of notice of the listing having been served, but in due course it was included in the register of local land charges.
In 1993 the Mr Dill (the appellant) acquired the house and the items.
He was not aware of the items presence on the list.
In 2009 he sold them at auction.
On 29 April 2015 the district council (the second respondents) wrote to the Mr Dill informing him that listed building consent had been required for the items to be removed.
His retrospective application for consent was refused on 11 February 2016, following which on 26 April 2016 the council issued a listed building enforcement notice requiring the reinstatement of the items at Idlicote House.
He appealed against the refusal of listed building consent and the issuing of the enforcement notice to the Secretary of State for Housing, Communities and Local Government (the first respondent).
The grounds of appeal included the argument that the items were not buildings for the purposes of the Listed Buildings Act.
The appeals were dismissed by a planning inspector on 19 January 2017.
He took the view that the status of the items as buildings was established by the listing; that he could not reconsider the issue.
Mr Dills appeal was rejected by the High Court (Singh J) and the Court of Appeal (McCombe and Coulson LJJ).
Both courts below held that listing was conclusive of the items being buildings.
The Supreme Court unanimously allows the appeal.
Lord Carnwath gives the sole judgment, with which the other Justices agree.
Whether listing is conclusive of the items being buildings for the purposes of the Listed Buildings Act It is a principle that individuals affected by a legal measure should have a fair opportunity to challenge the measure and to vindicate their rights in court proceedings.
In applying this principle, the context of the particular statutory scheme in question is relevant [20].
In the parallel context of breach of planning control, the statutory grounds of appeal are so wide that they include every aspect of the merits of the decision to serve an enforcement notice.
It is hard to see why it should be any different in the context of a listed building enforcement notice.
Indeed, the question of whether something is a building may raise difficult issues of factual judgment which an inspector appointed under the statutory scheme is more appropriately placed to decide than the High Court on judicial review [22].
Under the statutory scheme a listed building means a building which is included in [the] list.
It is an essential element that the thing in issue be a building.
If it is not in truth a building at all, there is nothing to say that the mere inclusion in the list will make it otherwise.
Section 7 prohibits the demolition of a listed building, and s.9(1) makes contravention of that prohibition a criminal offence.
But there is nothing to prevent the accused arguing that the item demolished is not a building and so not within the definition [24].
As such, the question of whether the thing listed is in fact a building can be considered by the inspector on a statutory appeal [25].
The enforcement appeal must be remitted to the First Respondent for redetermination [26].
The application for listed building consent can be dealt with by agreement [27].
The relevant test for a building There is a need for general guidance on the legal principles in play in determining whether something constitutes a building [28].
In Skerritts of Nottingham v Secretary of State for the Environment Transport and Regions [2000] JPL 1025 a three fold test was adopted considering size, permanence and degree of physical attachment [46].
This case is important as the three fold test was treated as of general application in the planning context [50].
Along with other jurisprudence, it indicated a move away from real property analogies.
Lacking a preferable alternative, and as the same definition of building as was in issue in Skerritts was adopted in the Listed Buildings Act, it is difficult to see any reason in principle why the same test should not apply [52].
The application of this test to the items is something to be considered in the context of the remittal of the appeal to the First Respondent [58].