The Supreme Court has ruled whether a Planning Inspector is able to determine whether an item which has been designated as a listed building is in fact a building. Giving the Court’s judgment in Dill v Secretary of State for Communities and Local Government,  UKSC 20 Lord Carnwath has ruled definitively on the meaning of ‘listed building’. The case also has important implications for the rights of persons to challenge decisions affecting their rights, the scope of the listed building regime and the sale of works of art.
The case concerned two lead urns (originally finials) attributed to the Dutch sculptor John van Nost dating from around 1700, and the circa 1730 limestone piers upon which they rest. The items were originally at Wrest Park, but taken by their owners when the property was sold in 1939. They moved with the family through three further properties before being placed at Idlicote House in 1973. In 1986 the urns and piers were made listed buildings in their own right. The family were unaware of the listing, and in 2009 the then owner, Marcus Dill, had them sold at auction, believing they were not listed.
In 2015 the local planning authority raised the listing with Mr Dill and having refused his application for consent, issued a listed building enforcement notice. On appeal before a Planning Inspector Mr Dill argued that the items were not buildings on the applicable property or planning law tests and so could not be listed buildings. The Inspector decided that the status of the items as buildings could not be questioned on appeal and those submissions were therefore irrelevant.
The High Court and Court of Appeal upheld the Inspector’s decision.
In one of his final judgments, with which the rest of the Court agreed, Lord Carnwath JSC ruled that Mr Dill’s appeal should be allowed.
On the ability to raise the ‘building’ issue on appeal before an Inspector, he followed Boddington holding that it was “the rule of law that individuals affected by legal measures should have a fair opportunity to challenge these measures”. Since by section 1(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990, a listed building means “a building which is … included in [the] list …” it could be contended in a listed building enforcement notice appeal or a prosecution for carrying out unlawful works to a listed building that the item was not a building, and so no listed building consent was required.
The Court went onto consider what the legal meaning of building was. Section 1(5) of the 1990 Act provides:
“In this Act ‘listed building’ means a building which is for the time being included in a list compiled or approved by the Secretary of State under this section; and for the purposes of this Act –
shall … be treated as part of the building.”
Lord Carnwath held that under the extended definition of building in paragraphs (a) and (b) whether an object or structure ‘forms part of the land’ depended on the property law approach “of two tests: (1) the method and degree of annexation; (2) the object and purpose of the annexation”. Applying that test he said that, in his view, “a statue or other ornamental object, which is neither physically attached to the land, nor directly related to the design of the relevant listed building and its setting, cannot be treated as a curtilage structure and so part of the building within the extended definition”.
The urns and piers at Idlicote had been listed in their own right. Lord Carnwath held that whether something was a building in the opening words of section 1(5) was not governed by the property law tests but by the approach in planning cases to what is a building: a three-fold test, albeit imprecise, of size, permanence and degree of physical attachment (see Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions (No 2)  JPL 1025). He referred to:
“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. … The historic interest must be found not merely in the object as such, but in its “erection” in a particular place.”
Lord Carnwath observed:
“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”
In the present case the Court noted that there were arguments both ways as to whether the items were buildings, but observed that the “vases” were physically separate and could not have been buildings if considered on their own. Those issues would fall to be considered again by an inspector. Lord Carnwath concluded:
“There is as I understand it no suggestion that [Mr Dill] 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.”
The Supreme Court’s judgment is here.
Richard Harwood QC and Catherine Dobson appeared for Mr Dill, instructed by Simon Stanion and Rajwinder Rayat of Shakespeare Martineau.
Richard and Catherine will be holding a webinar to discuss the case and its implications within the next few weeks.