1 July 2020

When is a listed building a 'building'?

The recent Supreme Court case of Dill v Secretary of State provides an important decision as to whether a Planning Inspector of a listed building enforcement case can decide whether an item which has been expressly included on the statutory list is in fact a 'building' and the criteria for determining whether an item listed in its own right does constitute a building for these purposes.

This case related to a pair of urns which had both been expressly entered onto the register of listed buildings along with the property within the grounds of which the urns were situated. The urns were not listed because they were appended to a listed building, or because they were within the curtilage of a listed building, but because they were listed in their own right. Mr Dill, the owner of both the urns and the property, and being unaware that they were considered listed buildings, had sold the urns at auction in 2009. Subsequently in 2015, the local authority became aware of their removal and issued a listed building enforcement notice under s.38 of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("LBA 1990") requiring them to be reinstated. Mr Dill applied for retrospective listed building consent which was refused.

Mr Dill appealed this decision on the grounds that the urns were not 'buildings' and therefore their classification as 'listed buildings' was incorrect. This would have the consequential result that a listed building enforcement notice was inapplicable as the urns were not protected as listed buildings under s.1 LPA 1990. The appointed Planning Inspector dismissed the appeals on the basis that he could not 'go behind the list' and challenge the status of the urns as buildings. The Inspector's position was that the status of the urns as buildings was established by them being included on the list itself and that the status of the item could not be challenged.

Following unsuccessful appeals to both the High Court and Court of Appeal, the Supreme Court held in Mr Dill's favour holding that it was “the rule of law that individuals affected by legal measures should have a fair opportunity to challenge these measures”. The Court determined inclusion on the statutory list was not necessarily conclusive to establishing the status of the urns as buildings. An applicant is therefore entitled to appeal against a listed building enforcement notice on the grounds that the item in question is not a building.

For Mr Dill, the Court acknowledged that he had been looking to obtain a clear ruling on the issue and 'that opportunity had been wrongly denied to him for five years.' The enforcement notice appeal will have to be reconsidered by the Planning Inspectorate and in giving judgment, Lord Carnwath suggested the respondents should consider whether pursuing the enforcement process further was in the public interest, particularly given the difficulties in this case of restoring the urns to their previous location.

Additionally, this judgment has helpfully also confirmed that the test courts have endorsed in pre-existing case law to determine what classifies as a building in relation to the core planning acts, is applicable in the context of section 1(5) of the LBA 1990. Namely the threefold approach of size, permanence and degree of physical attachment (derived from Skerritts of Nottingham v Secretary of State).

This decision has implications for many items which are currently designated as buildings and included in the statutory list, where the inclusion has the potential to be controversial. Particular examples of this include statues or other items located in gardens of properties which are themselves listed buildings. The fact that the urns were listed as buildings in their own right and not because they were within the curtilage of another listed building makes the decision to allow their status as a building to be challenged perhaps more surprising.

We regularly advise clients on amending the description of listed buildings on the statutory list to remove reference to certain items and we anticipate this case will facilitate such matters. It would certainly be advisable to try to amend the list to remove reference to certain items, rather than relying on this case if enforcement proceedings are brought following the removal of the relevant item(s). Removing or demolishing listed “buildings” without the necessary listed building consent is a criminal offence and as well as the sanctions available under the LBA 1990, local planning authorities could seek to recover any sale proceeds under the Proceeds of Crime Act. However, if enforcement proceedings are brought then this case clarifies that the appellant can challenge whether certain items are “buildings” (to be determined in accordance with the Skerritts test) and therefore whether enforcement action can be taken.

Dill v Secretary of State for Housing, Communities and Local Government and another [2020] UKSC

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