When art is part of the building

Roger Pearson looks at how a recent appeal dismissal strengthens the hand of local authorities seeking to preserve listed properties. The Recent dismissal by consent of an appeal over the right of a hotel owner to remove a work by a famous sculptor from the hotel's premises is being viewed as a move which has strengthened the hand of local authorities in their fight to protect listed premises.

Had the appeal gone ahead it would have focused attention on the vitally important property law question of what constitutes fixtures and fittings.

However, because the appeal was dropped, the carefully reasoned 1995 ruling of Judge Maddocks in the High Court at Liverpool stands. And that decision, says Margaret Puttnam, managing solicitor for Lancaster City Council, constitutes an important weapon in the armoury of local authorities when it comes to preserving listed properties in the condition that they believe they should be preserved in.

"It is a case," says Puttnam, "which emphasises the importance for all involved in this sort of action to look at not just how items are fixed to a building but why they are fixed there in the first place. This is something that can easily be over-looked."

The long-running legal battle centred on the insistence of Lancaster City Council that a 10ft by 16ft relief by the celebrated sculptor Eric Gill should be restored to its original home at the Midland Hotel in Morecambe.

Now, in the agreement which resulted in the recent appeal moves being dropped, hotelier Leslie Whittingham has agreed to reinstate the piece, which weighs more than one ton and depicts the classical scene of Odysseus being welcomed from the sea by Nausicaa.

The 1930s-built hotel, designed by Oliver Hill, is a Grade II listed building and is widely regarded as one of the best examples of the Art Deco style in the country.

The legal battle over the sculpture, which was included in the original plans for the hotel, began in 1992 when it was removed and exhibited at London's Barbican Centre.

It has never been returned to the hotel since, although Whittingham, who was subject to an earlier injunction banning him from selling or disposing of the work, has pledged that it has always been his intention to return it. But he opposed Lancaster Council's moves to bind him by court orders to do so.

He argued that he was entitled to be free to do what he liked with the piece on the basis that, legally, it was to be regarded as an "unfixed chattel" within the hotel which was not subject to restrictions imposed by the Listed Buildings Act 1990.

The question for the courts has been whether a piece such as this work should be classified as an "unfixed chattel" or whether it should be regarded as a "fixture" and therefore a part of the premises governed by the listing restrictions.

Judge Maddocks held that it should be classified as the latter and that Whittingham could therefore be ordered by the court to return it to the premises.

In a ruling which has important implications for the fight to protect listed buildings, the judge said the work had been fixed to the hotel as part of the original overall architectural scheme.

"This relief was designed as an integral part of the hotel," he said. "There is no basis on which I could say that it was not a fixture at the outset or at the time of the first listing in 1976. In my judgement it falls to be treated as part of the hotel for the purpose of the listing."