Enterprise and Regulatory Reform Bill

Memorandum submitted by the British Institute of Organ Studies (BIOS) (ERR 19)

ENTERPRISE AND REGULATORY REFORM BILL

1 Summary As subsection (5) of the Planning (Listed Buildings and Conservation Areas) Act 1990 is to be amended The British Institute of Organ Studies would like to propose one further small change to (5) (a) to read "any object or structure fixed to the building or fixed by virtue of its own weight".

2. Introduction The British Institute of Organ Studies ("BIOS") exists to encourage and promote the study of the pipe organ, its history and design, and to increase appreciation and understanding of its music by both organists and the general public. The Institute, working for the preservation, and, where necessary, the faithful restoration of historic organs in Britain, was founded in 1975 because of concern about how many pipe organs were being altered without thought of their historical value. Organs owned by the church are generally protected by Ecclesiastical Exemption, but the situation with secular organs is very variable and the amount of protection is sometimes dependent on interpretation of the law. [For clarification, the word "organ" in this submission is intended to mean a "pipe organ", and not to any other form of organ, such as an electronic or digital organ.] Other aims of BIOS are to conserve the sources and materials for the history of the organ in Britain, to make them accessible to scholars and to encourage an exchange of scholarship with similar bodies and individuals abroad, and to promote, in Britain, a greater appreciation of historical overseas schools of organ-building.

3. Proposal It is proposed to add a new subsection (5A) (a) to Section 1(5)(a) of the Planning (Listed Buildings and Conservation Areas) Act 1990, by adding certain extra words. In these circumstances, BIOS proposes that Section 1(5)(a) of the Act is further amended by inserting, after the words "any object or structure fixed to the building", but before the following full stop, a comma, and then the following words [set out here in bold]: "or deemed to be fixed to the building by virtue of its own weight."

4. Reasons for this proposal

(1) Whether or not an object or structure should be regarded as fixed to a building for this purpose has to be decided on a case by case basis. The accepted test is one of annexation, with particular reference both to the degree and the purpose of annexation.

(2) In the past, however, application of this test has not always proved easy in such cases. A well known example was the controversial case of Canova’s statue of The Three Graces, where a statue had stood in a listed building since 1816. It was on a plinth, which although fixed to the floor could easily be removed.

In that case, after much legal argument, the Secretary of State eventually decided that the statue did not form part of the listed building, because it was not a 'fixture' under the legal definition.

(3) More recent case law has clarified that an object resting solely by its own weight on the land or building in question, i.e., free-standing, may nonetheless be regarded as a fixture if there is evidence on an objective test that it was intended when placed to be a fixture, i.e., part and parcel of the land or building in question, and not a chattel. This was established by the leading case of Elitestone Ltd vs Morris and Another [1997] 1 WLR 687, where the House of Lords unanimously held that a wooden chalet bungalow assembled and placed on land without any foundations was a fixture because on a proper application of the twin tests of the degree and purpose of annexation despite its lack of physical attachment to the land it should nonetheless be regarded as part and parcel of the land. Similar reasoning has been applied to objects in a listed building – see the decision of the High Court in Kennedy v SoS for Wales and Another [1996] EGCS 17, where a free standing clock on the second floor of a tower was held to be a fixture.

(4) Similar considerations may also apply to other objects or structures in churches, such as church bells, turret clocks, fonts, pulpits, and organs. Although these churches are covered by the Ecclesiastical Exemption, diocesan chancellors (who decide cases involving listed building consent in ecclesiastical buildings) look to secular case law for interpretation and guidance.

(5) In practice most church organs are not physically fixed to the church floor, but simply attached to it by the weight of the organ. This because there is no need in the ordinary way when installing an organ to fix it to the floor, since most organs, unless very small, are constructed on a heavy building frame of substantial timbers or steel, which means that the organ cannot be moved easily from its position, and certainly not without it being dismantled.

(6) For some time now BIOS has been pressing for greater clarity about where church organs fall within listed building law protection. In this context it is interesting to note that Historic Scotland, although administering a parallel Act, The Planning (Listed Buildings and Conservation Areas (Scotland) Act 1997, and while using exactly the same wording as England to define a fixture, interprets the matter of whether or not an organ is regarded as a fixture in a written statement to me in 1999 as follows:-

"We consider any musical organ fixed to a building is fully covered and eligible for full protection in terms of proposed alterations affecting their character", and also

"Free-standing, moveable electric organs (interpreted to mean electronic or digital organs) would not fall to the definition, but I cannot think of any other type of organ housed in historic properties which could fail to meet the definition of a fixture. They are fixed by their own weight, quite apart from being integrated in design terms to a wider decorative and operational scheme".

(7) it is also interesting to note that another neighbouring English-speaking common law jurisdiction, Ireland, in The Eire ‘Planning and Development Act 2000’, while taking much guidance from previous English legislation, has in the matter of fixtures and fittings gone far to remove this lack of clarity by including within a "protected structure" the following words [set out here in bold] "all fixtures and features which form part of the interior or exterior of any structure or structures".

(8) BIOS therefore requests that, as Section 1(5) (a) of the current 1990 Act is being amended by additional wording, for the sake of clarity of the meaning of the words "fixed to the building", this Section should be extended by the addition of the words referred to in paragraph 3 above.

June 2012

Prepared 29th June 2012