Dill v Secretary of State for Communities and Local Government & Anor

A listed building enforcement appeal is not ordinarily the vehicle for challenging the lawfulness of the original listing. The statutory scheme provides separate routes, including judicial review and an application for de-listing. Even if an inspector may consider whether an item was incapable in law of being a building, the merits of the Secretary of State’s listing decision remain matters for the Secretary of State, subject to legal review.

Items listed in their own right are not treated as listed buildings because they are fixtures or curtilage structures. Their status as chattels and the Skerritts factors are therefore immaterial. Relief may be withheld for an error of law where the court is satisfied that the outcome would inevitably have been the same.

The claimant challenged a single decision letter of the Secretary of State’s Inspector dated 19 January 2017. The Inspector had dismissed an appeal against refusal of retrospective listed building consent and an appeal against a listed building enforcement notice requiring the reinstatement of two limestone piers and lead urns at Idlicote House.

The proceedings comprised an application under section 63 and an appeal under section 65 of the Planning (Listed Buildings and Conservation Areas) Act 1990. Eleven grounds alleged errors concerning the legal status of the items, the validity and merits of their listing, the application for consent, procedural fairness and remedies. The central issues were whether the Inspector could go behind the listing, whether the items were buildings for statutory purposes, and whether any error justified relief.

1. Validity of listing. The application under section 63 was refused and the section 65 appeal was dismissed. In an enforcement notice appeal under section 39, the statutory grounds permit a challenge to the merits of whether a building is of special architectural or historic interest, but do not generally permit a challenge to the lawfulness of the original listing. Parliament had provided separate routes for judicial review and de-listing. Allowing validity to be challenged decades later would undermine the clarity and certainty of the publicly accessible statutory list (paras [47]-[65]).
2. Scope of any inquiry. Even if an inspector could consider validity, the most he could decide would be whether the Secretary of State could reasonably have regarded the item as a building. He could not substitute his own view on the merits. Statuary was capable in law of falling within the wide definition of building, including a structure or erection (paras [66]-[69]).
3. Items listed in their own right. Section 1(5) identifies alternative routes to listed-building status. The items were listed in their own right, rather than as fixtures to another listed building or as curtilage structures. Their character as chattels, the law of fixtures, and the size, permanence and attachment factors from Skerritts were therefore irrelevant. The Inspector had correctly treated the items as buildings for the statutory regime (paras [70]-[82]).
4. Special interest and planning judgment. The Inspector was entitled to rely on professional advice and to conclude that the items retained special historic and architectural interest. Those were matters of planning judgment, reviewable only on ordinary public-law grounds such as irrationality. The court was not entitled to re-evaluate the planning merits (paras [83]-[94]).
5. Application and remedy. Even if the Inspector was wrong to treat the application as defective for failing to identify the items’ destination, the error was immaterial because he considered the merits in any event. Applying the Simplex principle, relief could be withheld because the court was satisfied that the outcome would inevitably have been the same (paras [95]-[103]).
6. Fairness. Fairness is fact-sensitive. An inspector’s legal research does not itself create unfairness. The relevant question is whether each party had a reasonable opportunity to address material issues. That opportunity existed here, and no material prejudice was identified (paras [104]-[112]).

• Secretary of State’s Inspector: On 19 January 2017 the Inspector dismissed both the appeal against refusal of retrospective listed building consent and the appeal against the listed building enforcement notice.
• High Court (Administrative Court): The application under section 63 was refused and the appeal under section 65 was dismissed.