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Real Estate e-bulletin – Issue 10

Welcome to the summer edition of our Real Estate newsletter.

The case reports contained in this edition show that, despite the ups and downs occasioned by responses to the pandemic, the day to day system rolls on…

As ever we are here to try to help you navigate your way through these tricky waters.

We would welcome feedback on the content covered below and any comments you may have on the future focus of this e-bulletin.

Nicholas Brent, Partner and Head of Druces’ Real Estate Team


Property – General

1. Tenants Win Right to Acquire Subsoil and Airspace in Guideline Case

Qualifying apartment dwellers have a right to acquire the freehold of the buildings where they live, but does that extend to the subsoil beneath the premises and the airspace above? The Court of Appeal addressed that critical issue in a guideline decision.

The case concerned a purpose-built block of 45 flats, the tenants of which sought to exercise their right to acquire the property’s freehold under the Leasehold Reform, Housing and Urban Development Act 1993.

A stumbling block in their path, however, was that third parties had acquired leasehold interests in respect of most of the building’s basement, the subsoil beneath the whole premises and the airspace above it to a height of seven metres.

An issue thus arose as to whether the tenants’ entitlement to acquire the building’s freehold extended to a right to acquire those leasehold interests. In a ruling which was subsequently affirmed by the Upper Tribunal, the First-tier Tribunal answered that question in the affirmative.

In dismissing the leaseholders’ challenge to that outcome, the Court noted the general rule that, once constructed, a building becomes part and parcel of the land on which it stands. The same applies to the airspace above the built structure.

The Court found that the rights and premises demised by the leases formed part of the building and that to prevent the tenants acquiring the leasehold interests would produce a result which was undesirable and impracticable, if not actually absurd. They would in effect be left with only the filling to the sandwich, without the airspace and subsoil which formed its two outer slices.

The basement, subsoil and airspace were properly viewed as common parts of the building. It was reasonably necessary for the tenants to acquire all of those parts in order to enable proper maintenance and management of the roofspace and basement, in which common facilities were located.

2. Houses in Multiple Occupation – Breaking the Rules Will Cost You Dear!

Houses in multiple occupation (HMOs) are for good reasons heavily regulated, and landlords and letting agencies that fail to measure up to required standards can expect to be hit hard in the pocket. In one case, a letting agency which had no reasonable excuse for breaking the law received a stiff financial penalty.

The case concerned a two-bedroom house which, when a local authority housing officer visited, was occupied by five people, forming three separate households. The agency, which bore responsibility for managing the property, was fined £25,000 by the council for breaches of the Management of Houses in Multiple Occupation (England) Regulations 2006 which, amongst other things, require that HMOs be fitted with suitable fire doors and fire alarm systems.

In challenging that decision before the First-tier Tribunal (FTT), the agency argued that it had a reasonable excuse in that it was unaware that the property was being used as an HMO. The property had been let to a private individual on terms which prohibited subletting or sharing and the agency’s director asserted that, when he visited the property, he saw no signs that it was in multiple occupation.

That defence, however, did not persuade the FTT, which found that the director either knew or ought to have known that the property was an HMO. The agency’s penalty was increased to £27,500, although a separate penalty of £27,500, which the council had imposed on one of the agency’s rent collectors, was reduced to £15,000.

In dismissing the agency’s appeal against that outcome, the Upper Tribunal (UT) rejected arguments that it was for the council to establish beyond reasonable doubt that the agency had no reasonable excuse for failing to meet its obligations. The FTT was entirely correct to find that the burden was on the agency to prove that it had such an excuse on the balance of probabilities.

The UT noted that if the director – an experienced letting agent – knew that the property was being used as an HMO, the agency could have no excuse. If he ought to have known that that was the case, the agency’s excuse for failing to comply with the Regulations was not a reasonable one.

3. IT Company Scores Important Victory in Business Rates Test Case

It is for local authorities to ensure that non-domestic rating lists are accurate and up to date and businesses are under no obligation to point out errors. The High Court made that point in ruling that one such mistake entitled an IT company, at least in principle, to a rates rebate of more than £160,000.

The company held the head lease of an office block. In defining the unit of property – or hereditament – on which it was said to be liable to pay rates, the local rating list mistakenly included certain parts of the building that the company had sublet to other businesses, thus giving up exclusive occupation of those parts.

After paying a rates bill of £164,159 under protest, the company took legal action with a view to recovering that sum. A judge concluded that, as the company was not in exclusive occupation of the whole hereditament, it was not in rateable occupation of any of it and had no liability whatsoever to pay business rates. He ruled that the council was in principle obliged to reimburse the company for its overpayment.

In rejecting the council’s challenge to that ruling, the Court noted that it was common ground that the company was not, during the relevant period, in exclusive occupation of the entirety of the hereditament because parts of it had been sublet. On a true reading of the relevant provisions of the Local Government Finance Act 1988, the company was therefore not in rateable occupation of the hereditament at all.

The Court noted that there was nothing bizarre about the requirement that, in order to be rateable, occupation must also be exclusive. The remedy for the council was obvious: to alter the rating list so as to render it correct. The Court noted that a further hearing would be required to consider whether the council had any viable grounds for resisting the company’s reimbursement claim.

4. Investing in Overseas Property? Consult an English Lawyer for Peace of Mind!

Buying investment properties overseas can be fraught with hazard but, if the worst happens, specialist English lawyers will do all in their power to ensure that you do not lose out. In one case, investors who ploughed funds into a disastrous Italian apartment development were awarded seven-figure compensation.

The investors paid substantial deposits, reservation fees and other costs to secure flats in the development off plan. They expected solid and secure returns on their money but found themselves entangled in an irretrievably flawed and doomed project. The development seriously breached planning, environmental and other legal requirements and never came anywhere near completion.

More than 40 of the investors launched proceedings against an Italian limited liability partnership (LLP) which had inherited the contractual liabilities of the Italian law firm which had advised them on the property transactions. The firm was alleged to have in numerous respects breached the duties it owed to the investors and to have knowingly and consciously failed to protect their interests.

The investors took action in London and succeeded in obtaining a default judgment against the LLP. Following a hearing, the High Court assessed the extent of each of the investors’ losses arising from the debacle, and awarded them damages totalling over 3 million euros, plus interest.

5. Neighbours Succeed in Blocking Controversial Garage Extension

If a neighbour obtains planning permission for a building project to which you object, that does not always mean that you just have to grin and bear it. In a case on point, objectors to a householder’s plans to extend his garage succeeded in blocking his proposal despite the fact that it had received local authority approval.

Three years after moving into a five-bedroom detached house on a newly built estate, the householder, whose family owned five cars and three motorbikes, obtained planning consent to extend his garage both outwards, to provide an additional car parking space, and upwards, to create a granny flat.

The transfer by which he purchased the property from the original developer of the estate, however, included various restrictive covenants, one of which forbade him and his neighbours on the estate from making any external additions or alterations to their properties for a period of 15 years. In reliance on that covenant, the developer refused to consent to the extension.

The householder responded by applying to the Upper Tribunal (UT) under Section 84(1) of the Law of Property Act 1925 for the covenant to be modified to the extent required to enable the extension to proceed. The application was resisted by the developer and five of the householder’s neighbours on the estate.

Ruling on the matter, the UT accepted that preventing construction of the extension would not secure practical benefits of substantial advantage or value to the neighbours. Any injury to their interests arising from the development would be small and could be compensated for by a very modest award of damages.

However, the UT went on to rule that, despite the grant of planning permission, the extension would not be a reasonable use of the land concerned. If used as living accommodation, the garage’s upper storey might also be a breach of a further covenant which restricted use of garages on the estate to the storage of private vehicles or items of a domestic or horticultural nature.

Previous disputes between the householder and his neighbours concerning parking issues showed that he did not always behave reasonably. He had, amongst other things, cocked a snook at the developer by parking on the drive of its show home. The proposed extension was a breach of covenant in the making and risked giving rise to further neighbourhood disputes in the future.

The UT also noted that the covenant was only three years old and formed part of the bargain that the householder had entered into when he bought his home. To allow the extension’s construction would be to deprive the developer of a significant part of its time-limited protection, which was designed to maintain the uniform appearance of the estate pending completion of further phases of the area’s development. The UT dismissed the householder’s application.

6. Church Commissioners Succeed in Blocking ‘Pod Hotel’ Development

Some of the nation’s grandest estates rely on use restrictions in leases as a crucial part of their long-term management strategies. That factor was decisive in stymying plans to open a Japanese-style pod hotel in the heart of a 90-acre central London estate which has for centuries been owned by the Church.

The long leaseholder of a large 1960s building within the estate had been granted planning permission to convert part of it from offices and shops into a pod hotel which would have over 100 small, windowless and air-conditioned bedrooms. Its lease, however, contained a restrictive covenant which forbade use of any part of the premises for residential or sleeping purposes.

The leaseholder applied to the Upper Tribunal (UT) under Section 84 of the Law of Property Act 1925 for the covenant to be modified in such a way as to enable the hotel development to proceed. However, the Church Commissioners, who own the estate – which comprises about 2,300 residential and commercial properties in one of the capital’s most expensive areas – fiercely resisted the application.

The Commissioners’ objections ranged from concerns about the design and long-term viability of the hotel to anxieties that it might become a focus for prostitution. It viewed the proposal as incompatible with nearby residential uses and feared that modifying the covenant would undermine its management strategy for the wider estate and provide an invitation to those seeking short-term gains.

Ruling on the matter, the UT was satisfied that the hotel would be a reasonable use of the site. Whilst a small number of residents might suffer increased noise, the UT was unconvinced that the hotel would have an unacceptable impact on the area’s physical environment. Claims that the hotel would in the long term lead to a £38 million diminution in the value of the estate were entirely speculative.

In rejecting the leaseholder’s application, however, the UT noted the high value that the Commissioners place on such restrictive covenants as a means of maintaining control over the wider estate. The covenant secured a practical benefit of substantial advantage to the Commissioners and amending it would impinge upon their ability to manage the estate for their commercial advantage.

7. COVID-19 Stay on Possession Proceedings – Court of Appeal Guidance

Emergency legislation and changes to court rules were rushed through in response to the COVID-19 crisis and only now are the consequences coming under detailed judicial scrutiny. In a case on point, the Court of Appeal rejected a challenge to the validity of the controversial stay on possession proceedings.

Before the virus struck, a receiver appointed by the mortgagees of a farm launched proceedings seeking possession of the property. The claim was contested and the proceedings had reached the stage of directions being given and a trial window being set. However, on 27 March 2020, shortly after the lockdown was announced by the government, Practice Direction 51Z (PD51Z) was issued by the Master of the Rolls and included in the Civil Procedure Rules (CPR).

PD51Z had the effect of staying all proceedings for possession for 90 days. After considering written representations, a judge found that the stay on the receiver’s claim was automatic and that he had no power to lift it. Dates previously agreed in respect of disclosure of evidence and other pre-trial matters were pushed back to corresponding dates after the lifting of the stay.

In ruling on the receiver’s appeal against that outcome, the Court noted that PD51Z came out of nowhere, without any prior consultation. It was considered necessary as a means of reducing pressure on the justice system during the pandemic and to avoid the need for face-to-face court hearings. It also reduced the risk of the virus spreading due to people being forced from their properties at a time when government advice was to stay at home.

The Court found that PD51Z was valid, having been properly authorised by Part 51.2 of the CPR, which enables the introduction of temporary pilot schemes in order to assess the utility of proposed new practices and procedures. Arguments that PD51Z was inconsistent with certain provisions of the Coronavirus Act 2020 also failed to convince the Court.

The receiver argued that PD51Z violated his human right, enshrined in Article 6 of the European Convention on Human Rights, to have his claim determined by an impartial and independent tribunal within a reasonable period of time. The Court, however, found that the relatively brief delay in possession litigation was amply justified by the exceptional circumstances of the COVID-19 pandemic.

Although judges retained a theoretical power to lift the stay imposed by PD51Z, the Court found that it would almost always be wrong in principle to exercise it. The power could only be used in the most exceptional cases, particularly if it operated to defeat the purpose of PD51Z to protect public health. Save in one procedural respect, the receiver’s appeal was dismissed.

8. Enforcing Adjudication Awards – Building Contractor Wins Over £1 Million

Contract adjudications are generally a swift and cost-effective means of resolving disputes and, as a High Court ruling showed, they have the added advantage that judges will usually back adjudicators’ decisions to the hilt.

A building contractor presented a final bill to a British Virgin Islands (BVI) company that had employed it on a construction project. The company did not serve a pay less notice or a claim to deduct liquidated damages from the bill prior to the expiry of the time limit set by the contract. No remittance was forthcoming and, after the matter was referred to an adjudicator, the company was ordered to pay the contractor the full amount of its bill, more than £850,000.

After the company failed to satisfy that award or pay the adjudicator’s fee, the contractor launched enforcement proceedings. The company made no response and took no steps to engage in the matter. The Court was, however, satisfied that it had been properly served with the proceedings at its premises in the BVI and that its lack of engagement was deliberate.

In the absence of a defence to the claim, and having detected no grounds on which the adjudicator’s decision could be challenged, the Court entered summary judgment against the company for the full amount of the award plus interest, a total of £1,062,565. The company was also ordered to pay the contractor’s £66,000 legal costs of the proceedings.

9. Infrastructure Projects and Access to Private Land – High Court Test Case

Public authorities engaged in nationally significant infrastructure projects have the power to enter private land to carry out necessary surveys. An important High Court ruling in the context of the proposed construction of a road tunnel near Stonehenge established that such works can involve far more than merely setting up a theodolite.

Highways England Company Limited (HECL) was developing proposals to replace the single carriageway A303 trunk road where it passes Stonehenge – a notorious traffic blackspot – with a tunnel close to the world heritage site. The tunnel would pass through a chalk aquifer running under a local farmer’s land.

In order to design the tunnel – for which a development consent order (DCO) had been sought – HECL needed to undertake pumping works on the farmer’s land. They would include the construction of monitoring boreholes and the pumping of water from a well which would have to be discharged onto the farmer’s fields. The farmer claimed that the works would result in his land being inundated by about 45 million litres of groundwater, causing serious damage.

The Secretary of State for Housing, Communities and Local Government granted HECL authorisation under Section 53 of the Planning Act 2008 (Section 53) to enter the farmer’s land to carry out the required works. After receiving advice from the Planning Inspectorate, he found that such access was genuinely required. Following unsuccessful negotiations, however, HECL gave notice that it instead intended to exercise its power under Section 172 of the Housing and Planning Act 2016 (Section 172) to enter the land and complete the works.

Challenging that decision, the farmer argued that, having chosen to take the Section 53 route to authorisation, HECL could not change its mind and instead rely on its broader power under Section 172. The Section 53 procedure was related specifically to the DCO process and was subject to safeguards, including the requirement for the Secretary of State’s approval, that did not apply to Section 172.

In ruling against the farmer, however, the Court found that Section 53 and Section 172 are overlapping provisions and that HECL was entitled to take either route to its objective of gaining access to his land. As strategic highway authority for the A303, HECL lawfully chose to exercise the power of acquiring authorities under Section 172 to enter and survey private land in order to pave the way for nationally significant infrastructure projects.

There was considerable force in the farmer’s argument that the extensive works would stray well beyond what could be described as a survey. However, the Court concluded that the discharge of large volumes of water onto his fields would be part and parcel of the required pumping tests and that the works in general fell within the definition of a survey authorised by Section 172.


Planning

10. Kew Gardens Heritage Assets Decisive in Scotching Tower Block Plans

The desirability of preserving heritage assets carries great, often decisive, weight in the planning process. In a case on point, the High Court scotched plans to erect a 32-storey tower block within sight of Kew Gardens.

The owner of a strategic site on the other side of the Thames from Kew wished to build a 120-metre-high tower which would provide 327 residential units, 116 of them affordable, together with office and retail space and associated amenities. The local authority refused planning permission but, following a public inquiry, a government inspector recommended that consent be granted.

Despite fierce objections from the Royal Botanic Gardens, Kew, the inspector was enthusiastic about the proposed building’s design, describing it as a landmark and beacon which showed refreshing architectural verve. He said that it represented a quite brilliant response to the difficult problems posed by the site and found that the impact on Kew Palace, the gardens’ iconic Palm House and other heritage assets would be less than substantial.

The Secretary of State for Housing, Communities and Local Government, however, took a different view and dismissed the landowner’s appeal. He was less glowing about the building’s design, saying that its mass and scale would dominate the surrounding area. He gave the benefits of the proposal in providing high-quality homes and office space only moderate weight, compared with the great weight he attached to the prevention of harm to heritage assets.

In dismissing the landowner’s challenge to that decision, the Court found that the Secretary of State took proper account of the fact that the site already had planning consent for a 13-storey office block which could still be implemented. That block, if built, would not be visible from the heritage assets.

Also rejected was the landowner’s plea that the Secretary of State was wrong to give only limited weight to an emerging London-wide planning policy which favoured residential and office developments in the area. In the exercise of his independent planning judgment, he was entitled to disagree with the inspector.

11. Tribunal Exposes Shocking Tale of Botched Office Block to Flats Conversion

Changes in the planning regime designed to accommodate burgeoning demand for new homes have led to the conversion of many office buildings into flats. As one case shockingly revealed, however, some such conversions have been carried out to such a poor standard as to place residents’ health – even their lives – at risk.

The case concerned a 1970s office block which had been converted into what was described as an ‘apart-hotel’. It had 47 self-contained accommodation units which were occupied under licences in return for monthly fees. Although people had been living there for some years, the building had never been certified as having been completed in compliance with building regulations.

A local authority housing officer who visited the premises in response to residents’ complaints found that a number of the apartments were freezing cold and entirely without heating. She expressed concerns about the adequacy of fire precautions. More than 500 separate defects were found in the building’s electrical installations, nine of which were found to pose a present danger to occupants.

The council issued multiple improvement notices on the company that owned the building’s freehold and its sole director. Although some remediation works were carried out, the council took the view that the notices had not been complied with and levied civil financial penalties under the Housing Act 2004. Further penalties were also imposed for breaches of regulations concerning the licensing and management of houses in multiple occupation (HMOs). Altogether, the company and its director were each ordered to pay £236,600.

In ruling on their challenge to those penalties, the Upper Tribunal (UT) rejected arguments that the property was properly viewed as a hotel rather than an HMO. The building was non-compliant with building regulations and, having been converted into self-contained flats, it fell within the definition of an HMO contained in Section 257 of the Act. Most of its residents occupied their apartments as their only homes and would not regard themselves as guests in a hotel.

The council was entitled to impose penalties on the company and its director for non-compliance with four improvement notices and for five breaches of the Licensing and Management of Houses in Multiple Occupation (Additional Provisions) (England) Regulations 2007. The UT found, however, that the penalties imposed by the council were disproportionate. The company’s penalties were reduced to a total of £75,000 and the director’s penalties to a total of £99,000.

12. Property Owner Pays High Price for ‘Cavalier’ Attitude to Planning Laws

Complying with planning laws can be expensive and inconvenient, but failing to do so is likely to result in a criminal record and a severe financial penalty. In a case on point, a property owner who simply ignored an enforcement notice requiring him to remove an unauthorised house extension received a £15,000 fine.

When the man bought the end-of-terrace house, the first-floor extension had already been erected without planning consent. He applied for retrospective permission, but that was refused by the local authority on grounds that it was of an unsuitable design and out of keeping with a row of houses. He was served with an enforcement notice requiring the extension’s removal.

His appeal against the notice was later rejected by the Planning Inspectorate on the basis that the extension materially detracted from the character and appearance of the area. It impacted on the lighting and outlook of a neighbouring property and had an oppressive and overbearing appearance.

The date by which the man was required to comply with the notice came and went but he did not do so. He thereby committed an offence under Section 179(1) of the Town and Country Planning Act 1990. The extension was not finally removed until about 20 months after it should have been.

After he pleaded guilty to the offence, prosecution lawyers suggested that a £10,000 fine would be appropriate. In imposing the £15,000 penalty, however, the judge found that the man had simply ignored the enforcement notice for a very long time. He described the offence as flagrant and the man’s attitude as cavalier.

Rejecting his challenge to the amount of the fine, the Court of Appeal observed that there is no statutory maximum or minimum penalty that can be imposed for failing to comply with an enforcement notice. There could be no criticism of the judge’s assessment of the seriousness of the offence and the fine achieved in a fair and proportionate way the objectives of punishment and deterrence.

13. What Is a ‘Dwelling’ in Planning Terms? High Court Clarifies the Law

Can a planning unit encompassing more than one residential property be viewed as a single ‘dwelling’? In an important ruling which underscored the undesirability of developing isolated homes in the open countryside, the High Court has answered that question in the negative.

The case concerned a cottage that stood two kilometres outside a village. Some 19 metres away from the cottage, on the other side of a driveway, was a former garage which had been converted into a residential annexe. The local authority had previously confirmed that, as both buildings formed integral parts of a single planning unit, no planning permission for that conversion was required.

The property’s owner applied for planning consent to change the use of the annexe from ancillary to independent residential accommodation. That would, in effect, have divided the planning unit into two and enabled the annexe to be sold independently or lived in by a separate household. The council refused permission but, after the owner appealed, consent was granted by a planning inspector.

The council’s challenge to that decision hinged on the interpretation of Paragraph 79(d) of the National Planning Policy Framework (NPPF). Although the NPPF discourages construction of isolated single houses in rural areas, Paragraph 79(d) creates an exception to that policy where the ‘sub-division of an existing residential dwelling’ is proposed.

The council argued that Paragraph 79(d) could not apply to the annexe because it was a detached residential unit, rather than a physical component of the cottage. The inspector, however, preferred the owner’s argument that the cottage and annexe constituted a single dwelling and that the proposal was to sub-divide that dwelling.

Allowing the council’s appeal against that decision, the Court ruled that the inspector had erred in her approach to Paragraph 79(d). It found that the word ‘dwelling’, as used in the paragraph, referred to one physical building rather than a wider residential unit encompassing other buildings.

Noting that many country homes have garages, sheds, barns and other outbuildings, the Court noted that, if Paragraph 79(d) supported the sub-division of a residential planning unit into two separate dwellings, then the implications could be very wide. Any residential property with a suitable outbuilding into which a residential use could be inserted would then have policy support to become a separate dwelling. The planning permission was quashed.

14. High-Profile Homeowners Can Divert Footpath Away From Their Garden

Ramblers love footpaths, but the same cannot be said for landowners concerned to protect their privacy and security. That was certainly so in one case in which homeowners with a high media profile won the right to divert a footpath which crossed their garden within sight of their croquet lawn.

The owners applied to the local authority for a diversion order in respect of about 228 metres of footpath which crossed their property. They said that ramblers on the path had a view of their private garden and could see into some of their windows. They stated that, if the path remained undiverted, they would enclose part of it within stone walls, creating a tunnel-like effect.

The council’s decision to grant the order was later confirmed by an inspector acting on behalf of the Secretary of State for the Environment, Food and Rural Affairs. She found that the diversion was expedient in that it was in the interests of the owners; re-routing the path would have a negligible impact on walkers’ convenience and any loss of public enjoyment would be relatively minor.

Challenging the inspector’s decision, the Open Spaces Society pointed out that the owners had bought their home in the knowledge of the footpath’s presence and that permitting its diversion would enhance the value of their property. A ruling in their favour would encourage other landowners to make similar applications.

The inspector was said to have misinterpreted the power to make diversion orders contained in Section 119 of the Highways Act 1980. It was submitted that she was wrong to put the owners’ interests into the balance and that even a slight loss of public enjoyment of the re-routed path should have mandated rejection of the owners’ application.

Rejecting those arguments, the High Court found that the Secretary of State’s less restrictive interpretation of Section 119 was plainly to be preferred. The inspector was entirely correct to perform a broad balancing exercise and was entitled to take into account the scale of the diversion’s benefit to the owners in terms of bolstering their privacy and security.

15. Preserving Natural Beauty Matters – But So Does Boosting Jobs and Tourism

Preserving the natural beauty of scenic areas has always been a central objective of planning policy. However, as a Court of Appeal ruling showed, such considerations cannot always be decisive when the economic benefits of job creation and tourism are put into the balance.

The case concerned a proposal to expand an existing caravan park which was set in an Area of Great Landscape Value (AGLV). The local authority granted planning consent on the strength of a planning officer’s advice that the development’s slight or moderate impact on the AGLV would be outweighed by the provision of much-needed jobs and economic growth in the rural area.

A local objector subsequently mounted a successful judicial review challenge to the council’s decision. In quashing the permission, a judge noted that the project was in direct conflict with a local planning policy which stated in mandatory terms that developments harmful to AGLVs would not be permitted.

Upholding the local authority’s appeal against that ruling, the Court acknowledged that there was some degree of conflict between the proposal and the policy, the wording of which was unqualified. There was, however, nothing to indicate that it was intended to have automatic primacy over other local policies, including one which positively supported the proposal in that it encouraged high-quality and sustainable developments which would create jobs and promote tourism.

The planning officer’s reasons for recommending in favour of the development were adequate and intelligible and the balance that she struck between conflicting policy considerations could not be faulted. The planning permission was reinstated.

16. Can Garden Ornaments Be Listed Buildings? Landmark Supreme Court Ruling

Can garden statuary or ornaments be listed buildings in their own right? In ruling on an important test case concerning the status of two 18th century urns, the Supreme Court found that that depends on their size, permanence and the extent of their physical attachment to the land.

The lead urns and their limestone pedestals once stood in the grounds of a stately home but had been relocated several times in the more than 300 years since their creation. They ended up in the garden of a country house, the owner of which sold them for £55,000 at auction. Only six years later did he discover that they were registered as listed buildings.

The local authority refused to grant the man retrospective permission to remove the urns. It instead served him with an enforcement notice, requiring him to restore them to his garden. Compliance with the notice posed grave difficulties in that the urns had been sold to an anonymous buyer who may have sent them out of the UK and who would in any event be under no obligation to part with them. The man’s challenge to the notice was nevertheless rejected by a planning inspector and, subsequently, by the High Court and the Court of Appeal.

Upholding his appeal against that outcome, the Supreme Court found that he had wrongly been prevented from arguing that the urns were not buildings and that they should thus never have been listed. Their mere presence on the register did not decisively establish that they were buildings capable of being listed. The man’s case was sent back to the Secretary of State for Housing, Communities and Local Government for fresh consideration in the light of the Court’s ruling.

Given the disturbing lack of clarity as to what does or does not constitute a building within the meaning of the Planning (Listed Buildings and Conservation Areas) Act 1990, the Court took the opportunity to give detailed guidance on the point.

The Court ruled that a three-fold test should be applied when deciding whether garden ornaments and other objects are buildings in their own right. Regard must be had to their size, permanence and degree of physical attachment to the land. Objects such as the famous dinosaurs at Crystal Palace may be viewed as buildings due to their size and permanence. However, items such as ordinary forms of garden vases or seats would be unlikely to qualify as such.

So far as the urns were concerned, the Court noted that there were arguments both ways: on the one hand, a small crane was required to assemble them and they were intended to occupy a stable and near permanent position. On the other hand, they were physically separate, not particularly large and could be installed and removed relatively easily.

The Court noted that there was no suggestion that the man acted other than in good faith in selling the urns, which he had considered his disposable property and which had been treated as such by his family for many years. It urged the local authority and the Secretary of State to seriously consider whether pursuing further enforcement action against him would be fair or in the public interest.