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Dill in the Supreme Court: Greater clarity for owners of listed assets

Last month, an important judgment by the Supreme Court clarified the definition "building" for the purposes of the listed buildings regime.

Background

The case concerned a pair of 18th century lead urns commissioned for the historic garden of Wrest Park in Bedfordshire. The urns were moved a number of times, ending up in the ownership of Major Dill, and located in Idlicote House.

In 1966 Idlicote House was designated as a Grade II listed building, and in 1986 the urns were themselves designated as listed buildings. The listing decision cannot be found and there is no record that the owner was notified. There was also a 6-month delay before the items were entered on the local land charges register.

Major Dill's son inherited Idlicote House and the urns in 1993. He was unaware that the urns were listed and they were sold at auction in 2009.

In 2015 the local planning authority notified Mr Dill that listed building consent had been required for the removal of the urns. In June 2015 Mr Dill applied for listed building consent, which was refused. An enforcement notice followed in April 2016, requiring Mr Dill to reinstate the urns at Idlicote House.

Mr Dill appealed to the Secretary of State on several grounds, including that the urns were not "buildings".  The inspector appointed by the Secretary of State refused Mr Dill's appeal, taking the view that the status of the urns in the list as "buildings" was determinative in itself. The status of the urns could not be challenged; he could not 'go behind' the listing. This view was upheld by the High Court and Court of Appeal.

The Supreme Court had two issues to decide:

  1. Whether an inspector on an appeal could decide whether something on the list is a "building" (Issue 1); and
  1. What criteria are relevant in determining whether an item in its own right is a "building" (Issue 2).

The Supreme Court decided in Mr Dill's favour in respect of both issues.

Issue 1: The inspector's powers

The Court held that it was possible for the planning inspector to question whether a listed item was a "building". A listed building must be both (1) a building, and (2) included in the list. If what is in the list is not a building, its mere inclusion on 'the list' does not mean it is one.

The Court took the view that individuals who are affected by legal measures should have a fair opportunity to challenge them. This principle should be read in the context of the particular statutory scheme in question. In the context of a breach of planning control, the grounds of appeal are wide enough that they include every aspect of the merits of the decision to serve an enforcement notice. It is difficult to see why this should be any different in the context of a listed building enforcement notice.

The lower Courts' concern was the integrity of the list, whereas the Supreme Court's view was that certainty should not trump fairness and a person's ability to challenge legal decisions.

Issue 2: relevant criteria for determining whether a listed item is a "building"?

In the relevant legislation, a 'listed building' includes:

  1. The building itself
  2. An object or structure fixed to the building
  3. An object or structure within the 'curtilage' of the building that forms part of the land and has done so since before 1 July 1948.

The Court noted a lack of clarity around the criteria used by local authorities to determine whether items are listed buildings, whether as "curtilage structures" or separate "buildings".

The Court's view was that this should not be judged by property law concepts (which look at (1) method and degree of annexation, and (2) the object and purpose of annexation), but rather by the Skerritts test, which has come about in planning law. Skerritts is a threefold test which considers (1) size (2) permanence and (3) degree of physical attachment.

Looking ahead

Dill emphasises the importance of checking whether or not an item is listed before it is moved, especially since removing a listed item without listed building consent is a criminal offence. With the 'list' now available on the Historic England website, it is easier than ever for these enquiries to be made. Auction houses and galleries also have a role to play in due diligence before a sale.

Where an owner finds that their item is indeed listed, legal advice should be sought and discussions can be commenced with the local authority and Historic England regarding a potential de-listing.

It is important to note that Dill will only have consequences for those items which are listed and do not satisfy the Skerritts test. For example, many urns which are listed will indeed satisfy all limbs and are correctly listed. It seems likely that the extent to which items are inherently part of the history and design of the building will be an important consideration in relation to the 'permanence' limb in Skerritts.

While Dill has opened up a potential defence where an owner is faced with enforcement action, it is obviously advisable, and important, for the issue to have been identified before matters progress to that stage.

Case: Dill v Secretary of State for Housing, Communities and Local Government and another [2020] UKSC 20

 

This article was published on our Art Law and More blog on 19 June 2020. Find out more about our Art Law services.

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