Dill v Secretary of State for Housing, Communities and Local Government and another

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.

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:

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 Dill’s statement in the planning appeal:

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:

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:

Two issues are agreed as arising before the Supreme Court, in short:

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”.

(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 structure’s 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).

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 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:

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:

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):

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):

Section 41(6):

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):

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 appellant’s case. There was no issue but that the enforcement appeal could encompass every aspect of the planning case. As Lord Hoffmann said (p 122D):

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:

Furthermore, Mr Elvin’s 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.

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.

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:

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:

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:

A more recent item is shown by a photograph of Henry Moore’s Reclining Woman (1947), at Dartington Hall, a large stone sculpture resting on a substantial stone base, said to be listed Grade II (p 7).

Perhaps the most unusual example is the group of -

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.

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:

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.

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:

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:

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:

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 D’Eyncourt 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:

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).

I turn to the criteria which might be relevant in determining whether such an 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 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 Baldwin’s 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):

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 State’s 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:

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:

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 J’s 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.

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.

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 court’s 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.