FREE CHAPTER from ‘Contested Heritage – Removing Art from Land and Historic Buildings’ by Richard Harwood QC, Catherine Dobson, David Sawtell


The impetus for this book comes from two sources. The first is the demand of art owners and the art market for confidence in dealing with artworks associated with land and buildings. The second is recent rise in disputes about contested heritage, where public memorials to historic individuals are seen as contentious because of the individual’s conduct or beliefs.

Whether an artwork was part of a building it was in, or land it was sited on, was an enduring part of many nineteenth century disputes between tenants for life and estates. Similarly disputes have arisen between tenants and landlords over which of the tenant’s alterations become part of the land and which can be removed. The purchaser of a property will want to know what they are buying and might be aggrieved to find that the nice works they had their eye on have been taken away by the vendor. These disputes are not confined to history. Land law courses tend to start with a discussion of Tower Hamlets LBC v Bromley LBC,1 a case from 2015 case about the ownership of a Henry Moore statue weighing 1.5 tonnes.

Ownership issues arise in less contentious situations. Sometimes a great house may be owned by a trust whilst the chattels are owned by the family. Or the house may have been given to the National Trust and possession of the chattels licensed to them. Are particular tapestries, pieces of sculpture and antiquities chattels or part of the house? Determining who still owns what will be vital in resolving inheritance tax liabilities and whether items can be donated in lieu of tax. The ownership issues arising from annexation to the land are addressed in Chapter 7, with improper dealing with such items – conversion – addressed in Chapter 8. Issues relating to sales are discussed in Chapter 9.

Control is not simply a matter of ownership and what is agreed between parties. Some artworks might contribute to the value of where they are and there may be a public interest in keeping them there. In general art can be moved within the UK without needing any approval from the government at all.2 The export of artworks might need a licence.3

However artworks which are buildings or which are attached to buildings or the land might need government consent before they can be moved. There may be a need for listed building consent, planning permission, conservation area consent or scheduled monument consent (or a combination of these). Whether consent is required and the processes for applying are considered in Chapter 1 (listed buildings), Chapter 2 (planning permission) and Chapter 3 (scheduled monuments and conservation area consent). Chapter 4 considers the principles and tactics involved in deciding whether consent should be granted.

These regulatory consents are of vital importance. If consent is needed, it may be very hard to get, as artistic works which are part of the building may contribute to its interest. Whether items can be removed without, say, listed building consent will be vital to dealings with the items and, often, the property itself. In 2007 the Marquis of Bute, the former racing driver Johnny Bute, put up for sale Dumfries House in East Ayrshire and its contents. The eighteenth-century listed house was designed by Robert Adam and was surrounded by a large estate. However the value of the house and estate was dwarfed by the value of the Thomas Chippendale furniture which had been made for it and which was intended to be sold off separately.4 Much furniture, such as tables, chairs and freestanding cabinets, will not conceivably be part of a building and so capable of being subject to listed building control. At Dumfries House there was considerable debate about the status of Chippendale items such as overmantels, pier glasses and pelmets. Ultimately the house and its contents, with the estate, were purchased following the intervention of Prince Charles.5 The price, £45 million, reflected views on which Chippendale items could have been sold separately and which were part of the listed building.

In 2009 the owner of Idlicote House sold two lead urns and the stone piers which they rested on at auction. He and the auctioneer were unaware that these had been added to the list of listed buildings in 1986. Years later the removal was discovered by the local planning authority who took listed building enforcement action. This culminated in the decision of the Supreme Court in Dill v Secretary of State for Communities and Local Government6 in 2020. Dill established the tests for what is a listed building or part of it and what is building for planning purposes and forms much of the discussion in the book.

The removal of items without any necessary listed building or scheduled monument consent, or certain unauthorised demolition within conservation areas, is an immediate criminal offence. The return of items removed without authorisation, including without planning permission, can be required even if they have changed ownership. Where the removal of an object of historical, architectural or archaeological interest was a criminal offence then the item will be tainted under the Dealing in Cultural Objects (Offences) Act 2003.7 It is then an offence to deal dishonestly with the object, knowing or believing it to be tainted.8 Dealing includes any sale or other acquisition or disposal or export.9 The Arts Council England, who oversee the export of cultural objects from the UK, will raise questions on export licence applications as to whether consents were required and obtained.

A separate system of controls applies to items removed from churches. The Church of England regime, which requires a faculty from the chancellor of the diocese is considered in Chapter 6. Whilst reflecting listed building control in many ways, it is important to have in mind that the faculty jurisdiction does apply to some works which are within but not physically attached to the church building and there is a distinctive, and more restrictive, approach to the retention of valuable treasures.

The significance of listed building issues for the owners of art has been well understood in the art market, certainly since the turn of the century. They are now attracting a wider significance.

The Black Lives Matter protests in 2020 brought the ownership and regulatory control of statues and other memorials to wider attention and significance. An element in the campaigning has been to remove symbols of approbation of historic individuals whose conduct is now seen to have been reprehensible. That debate was of course not entirely new. Statues of Confederate generals had been contentious in the United States for many years. There had been a long running campaign against the statue of Cecil Rhodes at Oriel College, Oxford.

Another long running debate had concerned the statue of, and various buildings and places named after, Edward Colston in Bristol. Colston had been a major local philanthropist, but had derived much of his wealth from active involvement in the Slave Trade. At the height of the Black Lives Matter protests the statue was pulled down by a crowd, daubed in paint and thrown into the harbour.

We look at some of the legal issues arising from the Colston statue in the case study at the end of this book, but the statue’s forceable removal (justified or not) galvanised the debate about whether memorials should be removed, explained or protected, and in respect of whom. This debate on ‘contested heritage’ has continued.

The response of some institutions and local government was to draw up lists of memorials which were now said to be disreputable.10 The response of the UK government was to institute a policy of ‘retain and explain’.11 If an individual’s past needed qualifying then that should be by explanation rather than removal. This was incorporated into English planning policy in January 202112 and is now in the National Planning Policy Framework.13

Memorials are by their nature permanent. They are attached to buildings and land. Many have qualities and history of their own. The removal of some memorials and statues would need listed building consent. Others might need planning permission or no regulatory consent at all: there being a complex set of exemptions from the need for planning permission for small scale demolition and various permitted development rights for demolition or alterations to certain types of buildings.

The ‘retain and explain’ policy therefore faced two practical challenges: some removals might not need any form of regulatory consent at all, and in other cases contentious proposals might not come to the attention of the Minister.

Consequently a package of changes was introduced in 2021.14 These applied planning control to various statues and memorials15 and removed permitted development rights,16 meaning that planning applications would have to be made. Obligations on local planning authorities to notify Historic England and the Secretary of State of certain listed building17 or planning applications18 were changed so that contentious applications could be considered by Ministers.

One aspect of contested heritage has been the naming of streets and places after now contentious persons.19 The legislation for changing street names is discussed in Chapter 5. It can fairly be said to be archaic and overdue for complete replacement.

Whether dealing with art for art’s sake or as contested heritage, the property and regulatory legal issues and public policy associated with them are considerable and have been the subject of significant change in the last two years. We seek to explain the hows and whys in the chapters which follow.


1 [2015] EWHC 1954 (Ch).

2 An exception is the discovery of treasure, which is the property of the Crown or a franchisee: see Treasure Act 1996.

3 See the Export Controls Act 2002, the Export of Objects of Cultural Interest (Control) Order 2003 and the statutory guidance in Export Controls on Objects of Cultural Interest (DCMS, 2015).

4 See The Herald ‘Sale of the century: Marquis of Bute aims to raise nearly £20m’ (13th April 2007).

5 The Guardian ‘Prince saves jewel in Scots crown’ (28th June 2007).

6 [2020] UKSC 20, [2020] 1 WLR 2206.

7 Dealing in Cultural Objects (Offences) Act 2003, s 2. See ‘Dealing in Cultural Objects (Offences) Act 2003’ (Richard Harwood) Art, Antiquity and Law (2003) Vol 8, issue 4 and generally, Historic Environment Law (Richard Harwood, 2012, Institute of Art and Law), chapter 17.

8 Dealing in Cultural Objects (Offences) Act 2003, s. 1(2).

9 Dealing in Cultural Objects (Offences) Act 2003, s. 3.

10 For example, London Borough of Camden; Mayor of London Open call for Commission for Diversity in the Public Realm members; London Borough of Lambeth, Public Debate On Slavery-Related Monuments And Street Names.

11 See the Secretary of State for Digital, Culture, Media and Sport letter to national museums and galleries and other arm’s length bodies, 22nd September 2020 and the Public Statues debate in the House of Commons on 25th September 2020 (Hansard, vol 680).

12 Written Ministerial Statement, Planning and Heritage Update by Robert Jenrick MP, 18th January 2021, UIN HCWS 713.

13 NPPF (2021), §198.

14 Foreshadowed in the 18th January 2021 Written Ministerial Statement.

15 Town and Country Planning (Demolition – Description of Buildings) Direction 2021.

16 Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021, amending the Town and Country Planning (General Permitted Development) (England) Order 1995.

17 See Arrangements for Handling Heritage Applications – Notification to Historic England and National Amenity Societies and the Secretary of State (England) Direction 2021.

18 Town and Country Planning (Consultation) (England) Direction 2021.

19 For example, Sir John Hawkins Square in Plymouth and Black Boy Lane in Haringey.