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

In an appeal against listed-building enforcement, inclusion of an item in the statutory list does not conclusively establish that it is a building. The appellant may contend under section 39(1)(c) of the Planning (Listed Buildings and Conservation Areas) Act 1990 that the item falls outside the statutory definition.

Whether an object is a building requires an evaluative judgment applying the criteria of size, permanence and degree of physical attachment. Property-law concepts govern whether an object forms part of the land under the extended definition, but do not control whether it is independently a building. Special artistic or historic interest alone is insufficient: the interest must relate to the object’s status and erection as a building.

Two early 18th-century lead urns and their limestone pedestals were placed, unattached, in the grounds of Idlicote House in 1973. They were separately listed in 1986 and sold and removed in 2009. The owner was unaware of their listing.

The local planning authority refused retrospective listed-building consent and issued an enforcement notice requiring reinstatement. A planning inspector dismissed the owner’s appeals, treating inclusion in the list as conclusive that the items were buildings. That approach was upheld by the High Court, [2017] EWHC 2378 (Admin), and the Court of Appeal, [2018] EWCA Civ 2619; [2019] PTSR 1214.

The Supreme Court considered whether an inspector could determine that a listed item was not a building and whether the applicable criteria were size, permanence and degree of physical attachment or concepts drawn from property law.

1. Appeal allowed unanimously. Lord Carnwath, with whom Lord Wilson, Lady Arden, Lord Kitchin and Lord Sales agreed, held that inclusion in the statutory list was not conclusive that an item was a building. A “listed building” under section 1(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990 must satisfy two elements: it must be a building and it must be included in the list. Nothing provides that listing transforms an item which is not a building into one. The presumption that an affected person has a fair opportunity to challenge a legal measure reinforced that construction.

2. Section 39(1)(c) permits an appellant to argue that the alleged matters do not contravene section 9(1) because the listed item is not a building. The inspector must therefore determine that issue. If the ground succeeds, the Secretary of State may remove the item from the list. Such fact-sensitive questions are particularly suitable for determination by a planning inspector.

3. The Act’s extended definition must be kept distinct from the definition of a building in its own right. An object fixed to a listed building, or a qualifying object within its curtilage which forms part of the land, is treated as part of that building; it does not thereby become a separately listed building. Property-law principles concerning the degree and purpose of annexation apply when deciding whether an object forms part of the land. An unattached ornamental object which bears no relevant relationship to the design of the listed building and its setting does not qualify as a curtilage structure.

4. For an object alleged to be a building in its own right, the applicable evaluative criteria are its size, permanence and degree of physical attachment, derived from Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions (No 2) [2000] JPL 1025. Real-property concepts do not govern this basic definition. Mere erection on land is insufficient. The installation should involve something akin to a building operation, while removal should correspondingly involve dismantling or taking the structure to pieces.

5. Listed-building protection requires more than an object’s intrinsic artistic or historic importance. Its special interest must be linked to its status as a building; historic interest must relate to its erection in a particular place.

6. The urns and pedestals were not curtilage structures because they had been placed at Idlicote House after July 1948, were freely movable and had no relevant relationship to the design of the house or its setting. Whether they were buildings in their own right required further factual evaluation under the Skerritts criteria. The enforcement appeal was remitted to the Secretary of State for redetermination. The respondents were invited to consider whether further enforcement was fair or expedient.

1. United Kingdom Supreme Court: The appeal was allowed unanimously. The Court held that listing was not conclusive of building status and remitted the enforcement appeal for redetermination under the correct criteria: [2020] UKSC 20.
2. Court of Appeal: The court upheld the conclusion that inclusion in the list was determinative for listed-building consent and enforcement proceedings: [2018] EWCA Civ 2619; [2019] PTSR 1214.
3. High Court: Singh J upheld the inspector’s conclusion that the listed status could not be challenged in the statutory appeals: [2017] EWHC 2378 (Admin).
4. Planning inspector: The inspector dismissed the appeals against refusal of listed-building consent and the enforcement notice, holding that listing established the items’ status as buildings.