Today (20 May 2020) the Supreme Court handed out an important judgment in the case of Dill v Secretary of State for Housing, Communities and Local Government  UKSC 20.
The two issues for the Supreme Court were:
- Whether an inspector considering an appeal under section 20 or section 39 of the Listed Buildings Act can consider whether or not something on that list is a “building”;
- What criteria are relevant in determining whether an item appearing in its own right in the statutory list is a “building” for this purpose.
The judgment will have important implications as to how and when the status of a listed building can be challenged on this basis, but also as to how decisions to list items in their own right should be taken in relation to a wide range of items which
The case concerned a pair of lead urns on limestone plinths that had been entered individually onto the list of protected buildings under s. 1 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“LBA 1990”) although at the time of listing they had been moved several times from the property where they had been original installed. The owner of the urns (Mr Dill), and the house in whose grounds they sat, removed the urns and sold them at auction for £55,000 and it is believed they were taken overseas. After the removal of the items had been raised by the local planning authority Mr Dill applied for listed building consent for their removal. The council refused to grant listed building consent and issued a listed building enforcement notice under s. 38 LBA 1990. Mr Dill appealed against the issue of the enforcement notice and the refusal of listed building consent.
Mr Dill sought to argue that the items were not “buildings” and so did not benefit from the protection of the LBA 1990 as “listed buildings” under s. 1 LBA 1990.
The Inspector found that the listing of the items as listed buildings in their own right could not be challenged on appeal, other than on the specific ground in s. 39(1)(a) that the building is not of special architectural or historic interest. It was not possible for him to “go behind the list”.
The High Court (Singh J as he then was) and the Court of Appeal (Hickinbottom, McCombe and Coulson LLJ)  EWCA Civ 2619 upheld the decision of the Inspector finding that the status of the item as a building was not open to challenge.
In its decision, overturning the Court of Appeal, the Supreme Court (Lord Carnwath (with whom Lords Wilson, Kitchin and Sales, and Lady Arden agreed)) held as follows:
- On a listed building enforcement notice appeal an applicant may challenge whether or not the item listed is a “building”. The status as a “building” is an essential element of the definition of “listed building” in s. 1(5) LBA 1990. S. 7 LBA 1990 will only be contravened in relation to a “listed building” which necessarily requires the item to be a “building”. Accordingly, the scope of an appeal under s. 39(1)(c), that is that the matters alleged to constitute a contravention of section 9(1) do not constitute such a contravention, enables such an argument to be made (para. 25).
- This is also the case in relation to a prosecution under s. 9 LBA 1990 (para. 24).
- As to the approach to “buildings”, there is an important distinction between items which are listed in their own right as “listed buildings” and items which derive protection from the extended definition in s. 1(5) LBA 1990 which catches fixtures and curtilage structures (paras. 34-44).
- In relation to items listed in their own right, the three tests from Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions (No. 2)  JPL 1025, para. 39 are relevant. S. 91(2) of the LBA 1990 imports the definition of “building” from s. 336 of the Town and Country Planning Act 1990. This involves considering size, permanence and degree of physical attachment. This requires an evaluative judgment in a reasonably flexible way reflecting the facts of the individual case (paras 45 – 56).
- Accordingly, the appeal was successful.
The case has important implications with respect to the ability of parties to raise questions of listed status outside the direct context of listing, or reviews of listing, and also outside of the limited grounds in the LBA 1990 where the merits (i.e. the special architectural or historic importance) of a listed building may be challenged on appeal. Its procedural implications are potentially wide as is the question of the application of the meaning of “building” to considering whether ornamental items, statuary, memorials and similar may be listed in their own right.
This was Lord Carnwath’s final judgment in a planning case in the Supreme Court.
A copy of the judgment can be found here.