Background
In 2009, when Marcus Dill sold a pair of 18th-century lead urns complete with limestone pedestals that had adorned the garden of his Costwold home (Idlicote House), he wasn’t aware that they were listed. This only came to light some five years later when Stratford-upon-Avon District Council accused him of breaching listed building controls and demanded that he reinstate them in the grounds of his home.
The large urns and pedestals had originally formed part of the gardens at Wrest Park, but had passed through the Dill family, and been moved several times, before coming to Idlicote House with Mr Dill’s father in 1973. Mr Dill inherited the house, including the urns in 1993. Idlicote House was listed (grade II) in 1966, but the two urns were individually listed in 1986. His father had not been made aware of the listing at that time.
The Council served a listed building enforcement notice on Mr Dill in 2016, requiring the urns be returned to Idlicote House. Mr Dill’s challenge to that notice was initially rejected by a planning inspector, then again by the High Court and the Court of Appeal. At the heart of these decisions was the premise that the mere fact that the urns were ‘on the list’ confirmed them to be listed buildings and that their status as listed buildings was not open for challenge.
However, in a decision by Lord Carnwarth in Dill v Secretary of State for Housing, Communities and Local Government [2020], five Supreme Court judges unanimously upheld the appeal, concluding that fairness demanded that it should be possible to challenge whether something is a listed building when appealing listed building enforcement, and that the appearance of items on the statutory list was not conclusive as to their status as ‘listed buildings’.
The scope for appealing listed building enforcement
On the scope for appealing enforcement action, Lord Carnwarth applied R v Wicks [1998] in which Lord Hoffman had explored parallel enforcement provisions for planning control breaches and had noted that “the statutory grounds of appeal are so wide that they include every aspect of the merits of the decision to serve an enforcement notice”. He concluded that the potential grounds of appeal in the context of a listed building enforcement notice should not be restricted and that “no convincing reason was offered as to why the question whether something qualifies as a “building” should be treated in a different way in the listed building context”.
Considering an appeal which challenges whether or not an item is a ‘building’ capable of listing, the Court cited that the powers of the Secretary of State extend to removing it from the list, and that (para 25) “this would carry with it the clear implication that they should never have been listed in the first place, and should be sufficient in practice (if not in law) to protect the owner against any further proceedings.”
What is a “building” for the purposes of listing?
Under section 1(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the “Listed Buildings Act”), Lord Carnwarth identified two essential elements required to be fulfilled for any listed building: that it must be a building, and that it must then be included in the list. Importantly, he ruled that “if it is not in truth a building at all, there is nothing to say that mere inclusion in the list will make it so".
Noting the "disturbing lack of clarity" on the legal definition of a "building", Lord Carnwath offered guidance, distinguishing between the direct listing of an item or structure, and whether such items might be treated as curtilage to another listed building under the section 1(5) extended definition.
Curtilage listing did not apply for Mr Dill’s urns as they had been individually ‘listed’, and they failed to meet the section 1(5) criteria, having not been in place at Idlicote House prior to 1 July 1948. However, the court confirmed that the concepts of real property would apply to curtilage listing, namely the degree and purpose of annexation. In assessing whether an object forms ‘part of the land’ Lord Carnwarth concluded where not physically attached to land, nor directly related to the primary listed building or its setting, it “cannot be treated as a curtilage structure”.
When deciding whether structures or erections are ‘buildings’ in their own right, the court considered the relevant tests are those in Skerrits of Nottingham v Secretary of State for the Environment, Transport and the Regions (No 2) [2000], namely the need to have regard to their "size, permanence and degree of physical attachment" to the land.
Noting the importance of the purpose of listed building control, which is “to identify and protect buildings of special architectural interest” Lord Carnwarth stressed that "the special interest must be linked to its status as a building” and that historical interest “must be found not merely in the object as such, but in its 'erection' in a particular place."
Lord Carnwarth didn’t opine on the urn’s listing status, accepting that there were "arguments both ways" and that these were “issues which can only be satisfactorily investigated and determined in the context of a renewed appeal." However, in sending Mr Dill's case back to the Secretary of State for redetermination, he urged the authorities to give "serious consideration” as to whether such enforcement remained in the public interest.
Implications of the decision on statutory designation and enforcement appeals
This decision introduces new uncertainty when considering the remit of existing statutory designation, albeit this will be limited to less conventional listings of freestanding and/or discreet structures. There may now be increased scope for seeking early review of new listings (being the non-statutory process adopted in England), or for applications for listing review / de-listing. While this can provide important clarification and certainty for owners, such applications could risk unexpected extended designation (and even trigger designation of associated buildings which would then enable items to become curtilage listed). Owners should therefore seek specialist heritage and legal advice before embarking on such applications, and this may include discussion with Historic England.
Equally, this uncertainty might give certain owners the courage to relocate and/or dispose of ‘listed’ structures, without express consent on the basis that should enforcement action be taken, the appeal can confirm that the item is not a building so should not have been listed. The temptation for this may be fuelled by the inherent value of the ‘objects’ or where properties are being sold and there is a desire to retain ownership. Such an approach is clearly both daring and risky given the fact that such actions are on their face criminal offences. One also can expect auction houses and other sales venues to make additional checks on the potential listing of objects – something made easier through the online Historic England listed building database.
We should anticipate (and indeed encourage) clarification or review of the present DCMS and Historic England guidance on listing criteria, listing review, and de-listing in light of this decision. There may even be scope for the Government to consider whether the review provisions for listing in Wales introduced into the Listed Building Act in 2016 could be extended to England. Improved guidance would certainly assist those considering existing and prospective listings, but also support local authorities in effective and appropriate listed building enforcement.
