Legal Viewpoint: Court ruling sheds light on challenging questionable listings

A long-running case recently concluded in the Supreme Court answers two important questions relating to listed buildings. First, can an appeal inspector consider whether something on the statutory list is a “building” and hence capable of being listed at all? Second, what test should be applied if so?

The items concerned were two 18th century lead urns mounted on limestone piers in the grounds of Idlicote House in Warwickshire. This was not their original home. Before arriving there in 1973, they had resided variously at Wrest Park in Bedfordshire, Coles Park and the Dower House in Hertfordshire and Badgers Farm in Warwickshire.

The urns and piers were listed in 1986. The then owner, Major Dill, does not appear to have been informed of this. His son, Marcus Dill, was similarly unaware when he sold them at auction in 2009. The listing decision and paperwork have never been found.

Stratford-on-Avon District Council became aware of the removal of the items in 2014. The property owner submitted an application for listed building consent, which was refused, and the council issued a listed building enforcement notice requiring their reinstatement. By that time, they were believed to have been removed from the country by their new owner.

The property owner appealed against both refusal of consent and the enforcement notice on the basis that the items were not protected by listing because they were not “buildings”. He argued that the statutory definition of a listed building contains two elements: it must be a “building” and be “included in the list”. Since the items did not meet the first of these criteria, he claimed that there had been no breach of listed building control.

He contended that the decision on whether or not they were “buildings” should be made by reference to their size, permanence and degree of physical attachment, as established in the case of Skerritts of Nottingham v Secretary of State for the Environment, Transport and the Regions (No 2) [2000]. If that test were applied, he maintained, it was clear that the items were not buildings.

An inspector dismissed the appeals, concluding that he could not go behind the listing (DCS Number 400-014-158). The status of the items as “buildings” was established by their presence on the list, he concluded. Since the listing was conclusive of the issue, he held that consideration of the correct test for deciding whether they were buildings was unnecessary.

High Court and Court of Appeal challenges against the inspector’s ruling were unsuccessful. However, the Supreme Court disagreed with the inspector’s analysis. It held that the grounds of appeal in a listed building enforcement notice case extend to “every aspect” of the merits of the enforcement action, including whether the item in question qualifies as a building.

This is how enforcement notices under the planning regime are dealt with and their lordships saw no reason why the approach should be different in a listed building context. When considering whether an item is a building, the Skerritts test should be applied. The court did not decide whether the urns were a building, preferring to leave that matter to another inspector to decide as an exercise of planning judgement at a reconvened appeal.

The decision widens the scope of what may be argued by appellants in listed building enforcement cases. This is welcome, as the approach adopted by the High Court and Court of Appeal would have left judicial review as the only way to challenge a questionable listing. As for the property owner, his solicitor reports that Stratford-on-Avon District Council has recently withdrawn the enforcement notice, so it seems that his ordeal may now be over.

Dill v Secretary of State for Housing, Communities and Local Government and Stratford-on-Avon District Council

Date: 20 May 2020

Ref: [2020] UKSC 20

Ian Graves is a legal director at DLA Piper

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