The Supreme Court held that inclusion in the statutory list does not by itself decide whether an object is a “building” under the Planning (Listed Buildings and Conservation Areas) Act 1990. An inspector hearing an appeal against refusal of listed building consent or a listed building enforcement notice may consider that question, using the planning criteria of size, permanence and degree of physical attachment. The enforcement appeal concerning two early eighteenth-century lead urns and their pedestals was remitted for redetermination.
The urns and the listing
The appeal concerned a pair of early eighteenth-century lead urns, or finials, attributed to John van Nost, each resting on a limestone pedestal of a slightly later date. Lord Carnwath, with whom Lord Wilson, Lady Arden, Lord Kitchin and Lord Sales agreed, called the urns and pedestals “the items”. Their artistic significance was not in doubt: they were sold at auction in 2009 for £55,000. The questions were whether they had properly been treated as buildings, and whether a planning inspector could examine that point.
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The objects had been moved between properties before they were listed at their later location. When Mr Dill sold them, he did not know that they had their own entries in the statutory list. Their history mattered to the question whether they were structures with the necessary permanence and attachment to the land.
In 2009 he removed and sold the items. The pedestals, of slab rather than solid construction, rested on concrete slabs and were not fixed to them. The finials sat on the pedestals without attachment. Together, each pier and finial was 274 cm high. They were lifted onto a lorry by its crane. English Heritage had been notified in advance and sent the catalogue, but did not respond. The items are understood to have left the United Kingdom.
From enforcement notice to the Supreme Court
After learning of the removal, the local planning authority told Mr Dill in 2015 that listed building consent had been required. His retrospective application was refused in February 2016, Historic England having advised that the structures retained special architectural and historic interest even though they had been moved. In April 2016 the authority issued a listed building enforcement notice requiring reinstatement. Mr Dill appealed against both the refusal and the notice, including on the ground that the items were not buildings.
The inspector dismissed the appeals in January 2017. He treated listing as conclusive of their status as buildings, held that he could not reconsider that issue, and regarded property law and the Skerritts tests of size, permanence and degree of annexation as irrelevant. Singh J and the Court of Appeal agreed that, for consent and enforcement proceedings and appeals, being on the list is determinative. Hickinbottom LJ considered that the statutory wording showed this intention. The Court of Appeal therefore did not decide the correct test for categorising the items as buildings.
Listing is not conclusive
Two issues were agreed. The first was whether an inspector on an appeal under section 20 or section 39 can consider whether something on the list is a building. Lord Carnwath held that the answer is yes.
He started from the accepted presumption that a person affected by a legal measure should have a fair opportunity to challenge it, a principle also reflected in article 6 of the European Convention on Human Rights. The statutory scheme still had to be construed. He found support in the planning case of R v Wicks. There, the statutory grounds for appealing an enforcement notice covered every aspect of the merits. Whether something is a building, and its erection a building operation, can be raised on a planning enforcement appeal and may involve difficult factual judgement better suited to an inspector than to judicial review. No convincing reason was offered for a different approach to listed building enforcement. Dealing with the issue on appeal also allows the inspectorate, with legal advice, to develop workable criteria case by case.
The definition itself contains two elements. A listed building means a building which is included in the list. If an item is not in truth a building, mere inclusion does not make it one. Section 7 restricts works for the demolition of a listed building, and section 9(1) makes contravention a criminal offence. Without a provision making listing conclusive, the ordinary presumption is that an accused may raise any relevant defence, including that the item is not a building. The same argument is available under section 39(1)(c), which allows an appellant to say that the matters alleged do not constitute a contravention of section 9(1). If that ground is established, the Secretary of State may remove the item from the list. Lord Carnwath considered that such a decision, made specifically because the items were not properly categorised as buildings, would in practice protect the owner against further proceedings.
The appeal was therefore allowed on the first issue, and the enforcement appeal had in principle to be remitted. The appeal against refusal of listed building consent might theoretically raise different issues, but none with practical consequences that could not be addressed in the enforcement appeal. Subject to contrary submissions, that aspect could be left to agreement.
The criteria for a building
The second issue was which criteria determine whether an item listed in its own right is a building: property-law concepts concerning annexation, or the Skerritts criteria of size, permanence and degree of annexation. Although the facts would return to the Secretary of State, Lord Carnwath considered that general guidance was needed. Even after the appeal and three court hearings, Mr Dill had received no official explanation of why these free-standing items qualified.
The Act uses the planning definition: “building” includes any structure or erection, and any part of a building, but not plant or machinery comprised in a building. Separately, section 1(5) contains what Lord Carnwath called the extended definition. Objects or structures fixed to a listed building, and objects or structures within its curtilage which form part of the land and have done so since before 1 July 1948, are treated as part of that building. They do not thereby become listed buildings in their own right. The Secretary of State may also indicate that particular objects or features are not to be treated as part of the building or are not of special interest.
For the extended definition, real-property concepts are relevant. “Fixed” has the connotation used in the law of fixtures, and the requirement that a curtilage structure form part of the land likewise draws on common-law ideas. Whether an object originally a chattel has become part of the land depends on the method and degree of annexation and the object and purpose of the annexation. An ornamental object which is neither physically attached to the land nor directly related to the design of the listed building and its setting cannot be treated as a curtilage structure. These items did not qualify in that way. They had been placed at Idlicote House after July 1948, were freely movable, and were not related in any relevant way to the design of that building and its setting.
The question whether an object is itself a building is distinct. Lord Carnwath held that the applicable criteria are those endorsed in Skerritts: size, permanence and degree of physical attachment. That threefold approach derives from the planning authorities of Barvis and Skerritts and from guidance in the rating case of Cardiff Rating Authority v Guest Keen Baldwin’s Iron and Steel Co Ltd. Parliament used the broad terms “structure” and “erection”, so their application requires an evaluative judgement. Where the decision-maker directs himself properly and reaches a rationally defensible conclusion, the decision is lawful. Real-property tests are not imported into this basic definition. Nor is it enough that something has been put on land. Skerritts illustrates the importance of how the item is assembled and of the permanence of its location. In listed building control, the need for something akin to a building operation on installation corresponds to the “works for the demolition” restricted by section 7, which envisages dismantling when the item is removed.
The purpose of the control also matters. It protects buildings of special architectural or historic interest. Interest in an object as a work of art is not enough; the special interest must be linked to its status as a building. Historic interest must be found not merely in the object, but in its erection in a particular place.
Lord Carnwath applied these points to the items only provisionally, because the Court lacked a full view of the facts and the evaluation belonged to an inspector. There were arguments both ways. The items comprised elements which had to be assembled, required a crane to move and assemble, and were intended to remain stably in place. Against that, they were not particularly large; the vases, which were the focus of the special interest, were physically separate; and installation and removal appeared relatively easy. Had the vases simply rested on the ground, it was doubtful that anyone would have regarded them as buildings.
The Court therefore answered the second issue affirmatively: the Skerritts criteria are relevant in the listed building context. It did not decide how they applied to these items. Lord Carnwath also drew attention to the limited protection for historic gardens and parks, and to the absence of clear published criteria explaining when garden objects are treated as buildings in their own right or under the extended definition. He urged those responsible for the Secretary of State to consider the lack of reliable guidance.
Verdict: The Court unanimously allowed the appeal. An inspector could examine whether the listed objects were buildings, taking account of size, permanence and physical attachment. It remitted the enforcement appeal and left the factual classification to the inspector.
Source: Dill v Secretary of State for Housing, Communities and Local Government and another [2020] UKSC 20
