John Hunter and Gary Grant Successfully Resist Challenge to Listed Building Decision

The High Court has rejected a challenge to a planning inspector’s decision dismissing appeals against a listed building enforcement notice and the refusal of listed building consent in respect of the removal of two early 18^th century piers and urns.

The piers and urns are attributed to the Dutch sculptor John Van Nost and were listed in 1986. They were originally sited in Wrest Park before being moved in the last century to Idlicote House, which is also a listed building. The Claimant was the owner of Idlicote House and sold them at auction, apparently in ignorance of their listing. A listed building enforcement notice was served and retrospective consent was also refused for their removal. An inspector dismissed his appeals against both decisions.

The Claimant sought to challenge the inspector’s decision on eleven grounds. His primary case, however, was that the inspector should have found that the piers and urns were not “buildings”, and thus were not subject to listed building control, because they were not fixed to the land and were mere chattels. The Judge (Mr. Justice Singh) rejected all of the Claimant’s grounds. In particular, he agreed with the Secretary of State that:

• The inspector was right to find that he could not “go behind the fact of listing”. Boddington v DPP [1999] 2 AC 143 does not lay down a universal rule that a person must be able to challenge the validity of administrative decisions by way of defence to proceedings and it was not Parliament’s intention to permit challenges to be raised to the validity of decisions by the Secretary of State in this context potentially many decades after the event (as was the case here)
• In any event, even if the inspector was entitled to “go behind the fact of listing”, the most he could have done was to determine whether the Secretary of State had acted unlawfully in placing them on the list, rather than determining the matter afresh for himself on the merits
• The definition of “building” in this context is wide and capable of being applied to statuary. It had therefore not been unreasonable for the Secretary of State to treat them as such when deciding to list them
• The inspector had been right to find that the law relating when a structure fixed to a listed building may itself fall within the listing was not relevant as the piers and urns had been listed in their own right

Nevertheless, the judge granted permission to appeal on limited grounds in view of the wider importance of the issues.

A copy of the judgment is attached here.

John Hunter appeared for the Secretary of State. Gary Grant appeared for the local planning authority.