A recent case, reported by the Guardian on 10 March 2024, where historic panes of stained glass associated with Henry VIII had to be withdrawn from an auction sale highlights what can be a significant issue for listed building owners. Section 1(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990 provides that the term “listed building” includes “any object or structure fixed to the building”. The upshot of this is that, If an object is fixed to the building, listed building consent may be required to remove it from the building.
In order to determine whether an object is fixed to the building, the courts have considered the existing jurisprudence relating to whether, as between a landlord and a tenant, objects are fixtures or fittings and adopted the two tests that arise from that body of case law:
1. What is the degree of annexation of the object – how firmly is it fixed to the building and
how easily could it be removed?
2. What is the purpose of the annexation – is it for the better enjoyment of the object as an
object or to improve the building or make it more beautiful?
In a listed building context the second test is more likely to be determinative than the first so that conventionally hung paintings (albeit set into recesses in wood panelling designed for the purpose) were, in one case, held to be fixtures such that listed building consent was required for their removal. In another, a large clock held down only by its own (considerable!) weight and not otherwise attached was held to be part of the building.
The purpose of this article is not to express an opinion on the particular case reported by the Guardian but to alert listed building owners to the possibility that they may need listed building consent to remove objects that one would not, in any other context, think of as part of a building.
Removing an object without consent entails potentially very serious consequences: firstly, it is a criminal offence punishable by an unlimited fine and, in the most extreme cases, imprisonment to do anything which require listed building consent without first obtaining that consent.
Secondly, the local planning authority has enforcement powers which it could use to require the object to be returned to the building – even if the object has, in the meantime been sold. This was the situation faced by Mr Dill in the case of Dill v Sectretary of State decided by the Supreme Court in 2020. Unaware that two lead urns on his land had been listed in their own right (rather than being covered by s.1(5)) he sold them at auction to an anonymous buyer. He then received a listed building enforcement notice requiring their return to the site, which he was unable to achieve. He had to fight the case all the way to the Supreme Court which cast doubt on the validity of listing objects in their own right, stating that there must be a building for there to be a listing. (None of that affects s.1(5). Once a building is listed, objects attached to it will be part of the building).
Listed building owners need to consider carefully, and take appropriate advice, before removing objects from a listed building if there is any chance of them falling within the ambit of the protection described in this article.
Nigel Hewitson (Partner)
Nigel Hewitson is a partner at Davitt Jones Bould and the co-author of “Listed Buildings and Other Heritage Assets” (6th Ed), Sweet & Maxwell 2023.