Dill v The Secretary of State for Communities And Local Government & Anor

For listed building consent and enforcement under the Planning (Listed Buildings and Conservation Areas) Act 1990, inclusion in the Secretary of State’s statutory list determines whether the subject is a listed building. An inspector hearing an appeal cannot question the validity of the listing, although the statutory scheme permits consideration of de-listing on the merits and judicial review remains available for validity challenges. Property-law concepts and criteria developed for other statutory contexts do not govern an item listed in its own right. A procedural error will not justify relief where the court is satisfied that the outcome was inevitable and the decision-maker in fact considered the merits.

The appellant owned two eighteenth-century limestone piers surmounted by lead urns. They had been separately listed in 1986 and were later sold and exported without listed building consent. The local planning authority refused retrospective consent and issued an enforcement notice requiring reinstatement.

An inspector dismissed the appellant’s appeals, holding that he could not go behind the listing, that property-law and Skerritts criteria were irrelevant, and that the consent application was invalid because it did not state where the items were being moved. The High Court dismissed the appellant’s statutory application and appeal: [2017] EWHC 2378 (Admin). The central issues before the Court of Appeal were whether the listing could be challenged before the inspector, whether the items had to be assessed as buildings in another legal sense, and whether the application error required relief.

The appeal was dismissed. Coulson LJ agreed with Hickinbottom LJ, and McCombe LJ agreed entirely with the decision.

1. For applications for listed building consent, enforcement proceedings and related appeals, section 1(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990 makes inclusion in the statutory list determinative of listed-building status. The statutory appeal grounds permit consideration of whether a building merits listing and whether it should be removed from the list, but do not permit an inspector to quash or invalidate the original listing.
2. The conclusion was supported by the statutory history and by Shimizu [1997] 1 WLR 168, City of Edinburgh Council [1997] 1 WLR 1447, Debenhams [1987] AC 396 and Barratt and Barratt [2011] EWCA Civ 27. The general invalidity principles in Boddington [1999] 2 AC 143 and Winder [1985] 1 AC 461 arose in different statutory contexts. Wicks [1998] 92 was closer to the present scheme. Newbury [1981] AC 581 and Earthline [2002] EWCA Civ 1599 concerned planning conditions and did not assist.
3. Section 1(5) contains three distinct routes: listing in its own right; treatment as part of a listed building where an object or structure is fixed to it; and treatment as part of a listed building where a qualifying object or structure lies within its curtilage. The items were listed in their own right, so property-law concepts and the criteria in Skerritts [2000] EWCA Civ 5569 were irrelevant.
4. The High Court’s discretionary power under sections 63 and 65 could be exercised to withhold relief where the outcome would inevitably have been the same. Although the inspector had erred in treating the consent application as invalid, he had considered the merits carefully. The error therefore had no material effect. The items had been removed, sold and exported, their setting had been lost, substantial harm had resulted, and no public benefits from removal were evidenced.

Hickinbottom LJ also noted, as an immaterial point, that an inspector does possess the Secretary of State’s power to de-list. McCombe LJ considered that further discussion of his observations in Chambers [2008] EWHC 826 (QB) should await a case where they mattered to the result.

• Court of Appeal (Civil Division) — Appeal dismissed: [2018] EWCA Civ 2619.
• High Court, Queen’s Bench Division, Planning Court — Application under section 63 and appeal under section 65 dismissed on all grounds: [2017] EWHC 2378 (Admin).
• Secretary of State’s appointed inspector — Appeals against refusal of retrospective listed building consent and the enforcement notice dismissed by decision letter dated 19 January 2017.