Dill v Secretary of State for Housing, Communities and Local Government and another

The Supreme Court addressed two questions arising from an inspector's decision under the Planning (Listed Buildings and Conservation Areas) Act 1990: (i) whether an inspector determining an appeal under the Act may consider whether an item included in the statutory list is in truth a "building" for the purposes of the Act; and (ii) what criteria are relevant to that question where it arises. The court held that an inspector may consider whether something on the list qualifies as a "building" and that the appeal proceedings therefore provide a proper forum for deciding that question, subject to judicial review on other public law grounds where appropriate.

On the substantive test, the court confirmed that the established planning tests derived from the authorities (often referred to as the "Skerritts" approach) — assessing size, permanence and degree of physical attachment/erection — are applicable in the listed building context. The court observed that real property concepts of annexation are relevant to the statutory extended definition (curtilage structures) but should not be imported wholesale into the basic statutory definition of "building". Because factual evaluation was required, the court remitted the enforcement appeal to the Secretary of State for redetermination applying those principles.

This case concerned two early 18th century lead urns, each on a limestone pedestal, previously in the gardens of Idlicote House. The urns had been entered separately on the statutory list in 1986. The owner removed and sold the items in 2009. The local planning authority treated the removal as a breach of listed building control, refused retrospective listed building consent and issued a listed building enforcement notice requiring reinstatement. A planning inspector dismissed the owner's appeals, taking the view that the listing itself established that the items were "buildings" and that the inspector could not reopen that matter.

Procedural posture: the inspector's decision was upheld in the High Court ([2017] EWHC 2378 (Admin)) and in the Court of Appeal ([2018] EWCA Civ 2619). The matter came to the Supreme Court on two agreed issues: (i) whether an inspector on an appeal under the Listed Buildings Act may consider whether an item on the list is in truth a "building"; and (ii) if so, what criteria should govern that enquiry, specifically whether property law concepts or the threefold Skerritts tests (size, permanence, degree of annexation/attachment) apply.

Issues and remedies sought: the owner sought to challenge the inspector's approach and to argue that the items were not "buildings" for the purposes of the Act; the parties sought determinations on the two legal questions above. The Secretary of State and local authority relied on the list entry and the inspector's approach.

Court's reasoning on the first issue: the Supreme Court held that the statutory scheme does not make the mere fact of inclusion in the list conclusive on the question whether an item is a "building" for all purposes of the Act. The court relied on principles of statutory construction and fairness, and on authorities dealing with the parallel planning enforcement regime (notably R v Wicks), to conclude that appellants should be able to raise the question whether the listed item is in truth a building in the statutory appeal under sections 20/39. The court observed that judicial review remains available to challenge the listing itself on public law grounds, but that the appeal route is an appropriate and practical forum for resolving the building-status issue and developing workable criteria.

Court's reasoning on the second issue: the court concluded that the Skerritts criteria — an evaluative assessment of size, permanence and the degree/method of erection or attachment — are applicable in the listed building context, subject to the distinction that common law property tests are primarily relevant to the statutory extended definition (curtilage/fixity questions). The purpose of listed building control (protection of structures whose special interest is linked to their erection in a location) supports applying a test which looks for something akin to an erection or substantial installation and a connection between the object's special interest and its placement.

Disposition: the Supreme Court allowed the appeal on the first issue and remitted the enforcement appeal to the Secretary of State for redetermination applying the proper legal tests. On the second issue the court answered that the Skerritts criteria apply but declined to make a final factual determination on those criteria, directing that they be applied afresh by the inspector. The court also urged clearer guidance from the responsible authorities on how garden and park structures are treated under the legislation.

Appeal allowed on the first issue and the enforcement appeal remitted to the Secretary of State for redetermination. The court held that an inspector on an appeal under the Planning (Listed Buildings and Conservation Areas) Act 1990 may consider whether an item included in the statutory list is properly a "building" for the purposes of the Act. On the second issue the court held that the established planning criteria (size, permanence and degree of physical attachment or method of erection — the Skerritts approach) are applicable in the listed building context, but declined to decide the facts and remitted the matter for reconsideration by the inspector.

The case came to the Supreme Court on appeal from the Court of Appeal ([2018] EWCA Civ 2619). The High Court decision was Singh J ([2017] EWHC 2378 (Admin)). The Supreme Court heard the appeal and remitted the enforcement appeal to the Secretary of State for redetermination.