When is listed building consent required to sell a work of art? When it is a fixture. The listed building legislation concerning works of art is confusing and a recent case has just shown how 'messy' it can be and how it has been used for purposes for which clearly it was not designed or enacted.

The Planning (Listed Buildings and Conservation Areas) Act 1990 which requires there to be compiled and maintained a list of buildings of special or architectural or historic interest recognises that many buildings are of interest because of the objects, structures and other items associated with them. It therefore provides that a 'listed building' will also include any object or structure fixed to it. Chimneypieces are a classic example of a fixture and historically these have often been moved or changed.

Listed building consent is required to carry out any alteration to a listed building in a manner which affects its character as a building of special architectural or historic interest. Where an object is fixed to a listed building, its removal is viewed as the equivalent of removing part of a listed building and therefore also requires listed building consent. This is where the problem relating to works of art arises.

There is a certain amount of case law concerning what is or what is not a fixture. It has been suggested that where a work of art is actually mentioned in the listing citation for the building that listed building consent is required to remove it, but in 1997 the House of Lords ruled that such a description ' has no legal significance'. Nevertheless, it is clear that mention of a work of art in a listed building citation makes planning authorities view it differently.

The dual test.
While over the years there has been considerable litigation relating to 'Fixtures' neither case law nor legislation has so far managed to clarify what is 'fixed' and what is not. The simplest explanation, whether an article or object is or is not a fixture', falls to be decided by the application of a dual test, namely the degree to which the object is physically annexed to a building and the purpose for which it was put there. Unfortunately this test leads to a subjective interpretation and many cases have been decided on a specific interpretation of the facts, which provides little guidance in subsequent situations.

A disturbing saga.
Two years ago, the Hazlerigg family decided to sell selected items from the house. The listing citation for Noseley, originally an 18th-century building, mentioned in particular some Italian capriccios in the Dining Room and two horse paintings in the Hall. These were to be included in the sale by auction.

Before it was finally decided what was to be sold, a copy of the listing was obtained to try and draw out any problems that might arise concerning listed building consent. Two months before the proposed sale the local council was contacted so as to alert them to the situation and to seek confirmation that there were no problems in the area of listed building consent. Perhaps being unsure of their ground, the council suggested that English Heritage should be contacted for advice: English Heritage, however, stated that it was the council's responsibility to comment or take action.

As a further precaution, nearer the time of the sale, the Hazleriggs instructed the leading barrister operating in this contentious area. He was shown the house, the listing, and all the paintings that were to be sold. His formal opinion was that none of the works of art being sold was 'fixed' to the building in a way that the legislation envisaged and that therefore listed building consent was not required.

The district council was provided with a copy of counsel's opinion and were, therefore, aware of his advice that listed building consent was not required for any of the items being sold. As a further precaution and by way of courtesy, some two weeks before the sale, the local planning officer was taken around Noseley Hall and shown the rooms and the items that were being sold.

It was therefore with some surprise that at almost the last moment before the sale the Hazleriggs received an Enforcement Notice requiring the five Italian capriccios and the two horse paintings mentioned earlier to be replaced where the had been (and consequently not sold). The council had decided that these works of art were part of the building and should not be removed. The Enforcement Notice was sent by fax at 5.30pm on the Friday before the sale was due to take place on the following Monday.

Clearly, the family was now in a most difficult position. Should they withdraw these paintings from the sale or not? For commercial reasons the sale continued and the paintings were sold with considerable success.

On the basis of the dual test the degree and purpose of annexation, the family could not concede that these pictures were fixtures. Comparatively recently, but as much for security as anything else, they had been fixed to the walls using mirror plates. While they looked well enough where they were hung, there was no evidence to suggest that they were placed intentionally as an integral part of the overall scheme of decoration. The specialist barrister who had previously been consulted was unequivocal in his opinion and they decided to appeal against the Enforcement Notice.

It was more than a year after the date of the sale that they received the decision of their Appeal against the Enforcement Notice. It came as a shock. While the Inspector agreed that the horse paintings were not part of the listed building he took a contrary view about the capriccios, which were required to be returned.

The costs of pursuing the Appeal swallowed a major proportion of the sale proceeds of these paintings.

Interestingly, during the preparations for the Appeal, it was discovered that the description in the listing citation had been compiled, not through an inspection of the property by a qualified person, but rather through updating the original listing by reference to a new edition of Pevsner. It was also found that the entry in Pevsner was substantially based (certainly for information concerning the works of art) on a 'dissertation' prepared by a member of the Hazlerigg family. There are lessons to be learned from this.

What precautions can owners take?
With hindsight it is very hard to see what else could have been done that would have caused this particular council to behave in a different way and to avoid the considerable costs involved in an Appeal. Earlier knowledge of how the listing description came into being might have affected how the sale was approached. It might have been possible to apply for the listing to be changed, on the grounds that the description was inappropriate. Although the description has no legal significance, it is believed that the inclusion of these pictures in the description strongly influenced the district council's belief that they were fixtures.

It is difficult to draw conclusions from the Hazlerigg case but the following might prove helpful for other owners:

• examine the 'listing descriptions' to see if there is any inappropriate comment on the works of art that may lead to problems in the future;
  
  
• try to discover on what grounds certain works of art are included in a listing and whether or not an inspection was made at the time the description was compiled;
  
  
• think carefully before giving access to art historians wishing to research or write up particular works of art; it is extracts from precisely such essays, papers or articles which can either be incorporated into or have an influence on listing descriptions at some future date.

The future.
There has been no change in the law on account of recent court cases. These have only emphasised the uncertainty for owners of listed buildings as to whether the works of art in them are viewed as part of the building or not. As each case is decided on the interpretation of a unique set of facts, it is not possible to provide general advice.

It is disturbing that the listed building legislation is being used where possible to keep works of art in houses in a way that was not envisaged by the legislators. The layman is surprised, and in some cases offended, that chattels (works of art) that would ordinarily be considered his to dispose of or move, as he would wish, are subject to State control. This uncertainty creates further problems particularly for exempted works of art.

Many works of art in houses have been taxed on their value at the death of precious owners. The value of a work of art that is deemed to be part of a building is diminished to virtually nothing and the listed building is not increased in value by the annexation of that work of art. Yet estates have been charged tax on the full value of works that could, under the current interpretation of the listed building rules, be considered part of the building. Similarly, if an exempted painting or work of art is regarded as a fixture, providing adequate public access might prove a problem if, for example, it is located in a private part of the house. An owner wanting to lend or to move it to where it might be more readily seen, may have to apply for listed building consent.

What of new collectors, who have bought listed buildings, acquired works of art, and hung these pictures in the ordinary way or placed their sculptures in the house or the garden? What about owners of modern buildings, which become listed at some future date? The recent Time Life case shows that modern buildings and recently commissioned works of art are subject to exactly the same problems. In that instance, the works of art commissioned and introduced into the Time Life building, clearly as works of art and not as decorative elements, were deemed to be fixtures requiring listed building consent for their removal. The ruling was against the intentions of both the architect and owner.

In historic houses numerous owners re-hang their pictures, often to a scheme prepared by a specialist designer so as to enhance the overall scheme of decoration. For security, if not merely for support, pictures may be physically fixed to a wall. The actual hanging of these pictures as part of a scheme of decoration could in itself be viewed as of architectural interest. Could this result in the value of the pictures being effectively confiscated from the owner by them becoming no longer movable chattels but part of the building?

The legislation was well intended and has served well to prevent people ripping out such things as fireplaces and panelling, but the present situation referring to works of art is confusing, unjust and open to local variation and interpretation. Planning guidance and clarification of the law is needed.

This article is an adaptation by Norman Hudson of a paper prepared by Timothy Sammons. It first appeared in 'Historic House' vol.24, Issue 2, May 2000.