In this case comment, Stephen McNaught, Mark McMurray, Josh Risso-Gill and Gael Hardie, who all work within the planning team at CMS, comment on the decision recently handed down by the UK Supreme Court in the matter of?Dill v Secretary of State for Housing, Communities and Local Government and another [2020] UKSC 20, which concerned?“listed buildings”.?

On 20 May 2020, the UK Supreme Court ruled in Dill v Secretary of State for Housing, Communities and Local Government and another?[2020] UKSC 20?that a planning inspector, in considering an appeal under sections 20 or 39 of the Planning (Listed Buildings and Conservation Areas) Act 1990, may ‘go behind’ the listing and re-determine its validity afresh on the merits. This decision sheds a new light on the treatment of objects as ‘listed buildings’, opening up the possibility of challenges as to whether or not such objects should be included on the list at all.

Background

The case concerned a pair of 18th?century lead urns, each resting on a limestone pedestal, at Idlicote House, which were removed and sold at auction following their listing. The house was designated a Grade II listed building in 1966, and in June 1986 the urns were added to that list. Mr Dill acquired the house from his father in 1993. In 2009, Mr Dill removed and arranged for the sale of the urns at auction, which sold for £55,000. He was not aware of the listing of the urns.

In 2014, Mr Dill became aware of their listed status and made a retrospective application for listed consent. This was refused by the Local Planning Authority who issued a listed building enforcement notice. On appeal, the challenge was dismissed. The High Court and subsequently the Court of Appeal also dismissed his claims and held that the entry of the urns on the statutory list was conclusive of its status as such.

Decision

The Supreme Court allowed the appeal. In doing so, the Court addressed two key questions.

  1. Should the planning inspector have addressed the dispute as to whether or not the urns were ‘listed buildings’?
  2. Were the urns properly treated as ‘buildings’ under the legislation?

Is designation as a listed building conclusive, or can the inspector re-determine its validity?

The Supreme Court held that the mere inclusion of an item on the list is not conclusive of it being a ‘building’. Consequently, the Court ruled that an inspector is best placed to decide whether or not such item is, in fact, a ‘building’. This means that an inspector may now ‘go behind’ a listing and re-determine its validity.

Whether something is a ‘building’ may raise difficult questions of factual judgment. Therefore, the Court held that an inspector is more appropriately placed to decide such issue, rather than the High Court on judicial appeal. By allowing these issues to be dealt with through the planning appeal route, it allows the inspectorate, following legal advice, to develop workable criteria on a case-by-case basis.

The enforcement appeal was consequently remitted back to the Secretary of State for redetermination.

Were the urns and pedestals properly treated as ‘buildings’ under the legislation?

The Supreme Court discussed that it is not enough that an object?is of special artistic or historic interest in itself; the special interest had to be linked to its status as a building.

The courts were not able to come to a final decision on this point, however, the Supreme Court held that size, permanence and degree of annexation (the criteria established in?Skerritts?of Nottingham Limited v Secretary of State for the Environment, Transport and the Regions (No 2) [2000] EWCA Civ 556) were relevant in determining whether an item falls under the statutory definition of ‘building’.

Again, the factual evaluation means that a planning inspector in the context of a renewed appeal is best placed to deal with this question. It was not appropriate for the Supreme Court to reach a concluded view on how the?Skerritts?criteria should be applied.

Practical Implications

It is now open to an inspector, in an appeal against a refusal of listed building consent or against listed building enforcement notice, to go behind a listing and re-determine the validity of the listing. It is open to challenge whether or not the item in question really is a building, and consequently whether it should be included on the list at all.

The judgment did not discuss whether a planning inspector may ‘go behind’ the listing to re-determine whether the building has special architectural or historic interest.

In determining whether or not an item is a ‘building’, the threefold test of size, permanence and degree of annexation is relevant. We expect there will be more guidance on how these criteria are to be applied in this context.

The Supreme Court ultimately ruled that the enforcement appeal should be sent back to the Secretary of State for redetermination, with Justices urging the government to reconsider “the treatment of such items under listed building legislation and the legal principles in play”.

At a practical level it is questionable as to whether there is merit in the proceedings continuing and no doubt Mr Dill considers that a break from the enforcement process has now been “urned”.

For practitioners at all levels there should be renewed focus in considering the extent of a listed building and what is included in the meaning of the building.