09 June 2020

Heritage assets are protected within a framework of legislation, shaped over the years by case law. This process continues, as the recent case of Dill v Secretary of State for Housing, Communities and Local Government and another[i] has clarified the approach which should be taken in determining whether something is a ‘building’ for the purposes of the Listed Buildings Act (1990). It has also opened the door to a new option for defending listed building enforcement proceedings where a listed item is not a building.

Building works generally cannot be undertaken without planning permission. For buildings protected under the heritage framework it is also necessary to secure listed building consent where works may affect the character of a building as one of special architectural or historic interest. Failure to obtain this permission prior to altering a listed building can lead to enforcement action, or criminal prosecution, being pursued by the local planning authority.

In this case, the ‘building' was a pair of 18th century lead urns, both sitting atop their own pedestal, that were specifically named in the listing and so were protected as listed buildings. The question was whether Mr Dill was able to argue they were not in fact ‘buildings’ in the first place as part of an appeal against Stratford-Upon-Avon District Council’s enforcement proceedings.

The facts in Dill

Mr Dill is the owner of a property which had been his father’s before him. In the grounds of the property stood a pair of limestone pedestals with finials on the top by Belgian sculptor John van Ost. These garden items were listed in 1986 when Mr Dill’s father owned the property and remained in the grounds when Mr Dill took ownership in 1993. The urns were listed in their own right, rather than being protected by virtue of the extension of protection to objects or structures in the curtilage of a listed building, which is afforded by s.1(5) of the Listed Buildings Act 1990.

In 2009 the items were sold at auction after which, in 2016, Mr Dill became the subject of enforcement proceedings. Mr Dill had not obtained listed building consent prior to removing and selling the items (his retrospective application was refused), and was not able to reinstate them in the gardens as they could not be traced, so the local planning authority determined that he was in breach of the Listed Buildings Act[ii].

The grounds of appeal pursued

Mr Dill appealed against the enforcement proceedings and the refusal of listed building consent and, despite the Planning Inspector, High Court and Court of Appeal finding against him, took his claim all the way to the Supreme Court. The issues in dispute were two-fold:

  1. Whether an inspector, when considering an appeal against listed buildings enforcement, can consider whether or not something is a ‘building’ for the purposes of its heritage protection; and
  2. What case law criteria are relevant when determining whether something is a ‘building’ for the same purpose.

In particular, on the latter issue, the question was whether the tests laid out in property law or the test in Skerritts[iii] (see below) would apply.

The Supreme Court decided in favour of Mr Dill’s arguments on both issues, ruling that inspectors should be able to consider whether or not something is a building and the Skerritts test should apply to determine if something is a ‘building’.

Inspectors can determine if a listed object is a building

The Supreme Court in coming to the conclusion that inspectors should be able to consider whether something is a ‘building’, looked at the consequences of not allowing Mr Dill to advance his arguments. Given that criminal liability was at stake, the judges felt it was important that Mr Dill should be able to pursue every angle of defence and it would be against his human rights to be denied this.

The judges in the High Court and Court of Appeal proceedings ruled that an item can be considered a ‘building’ by virtue of being listed and that it was not possible to look behind the listing when faced with enforcement proceedings. The fact that the subject matter was in the listing was determinative of its status. The Supreme Court disagreed. It saw no conclusive evidence that this had to be the case.

The definition provided in the Listed Buildings Act is that a ‘listed building means a building which is… included in the list’. The Supreme Court saw this as two essential elements which must be met for there to be statutory protection: it must be a building, and must be on the list. Mr Dill had fallen foul of a provision in the Listed Buildings Act which prevents demolition of a listed building. The Supreme Court ruled that he should be allowed to raise the defence that the items were not in fact ‘buildings’ at all and could therefore not be listed buildings that had been ‘demolished’ (in this case removed and then disposed of).

Further, whether something is a building or not has been considered in many planning appeals and the Supreme Court did not find anything to suggest this should be different in the heritage context. They also did not see a specific exclusion for appeals on whether or not something is ‘building’.

The decision essentially opens up a new ground of appeal (or an extension of an existing one[iv]) for landowners, as part of proceedings related to listed buildings, allowing them to question the correctness of including the object/structure on the statutory list as a listed ‘building’. The decision-maker must now consider these arguments if raised. This may well offer some assistance to landowners. Nonetheless, not all practical points are settled. It is not yet clear what must happen as a result of a successful argument that the feature is not a listed building: does the listing get reviewed? Does a separate de-listing application have to be made? What happens where the object/structure is not a listed building but is within the curtilage of a listed building? Arguably it may still benefit from protection under the extended definition in s1(5), which brings into play a different set of tests and case law.

Tests relevant to whether something is a building

From the outset, the Supreme Court made clear that they were not going to rule on whether the items in this case were ‘buildings’ and that it was a matter of planning judgement for the appropriate authority to decide. What they did assess was what tests should be applied by those authorities when considering if something constitutes a ‘building’ for the purposes of heritage protection.

Case law on this subject can be found in both property law (the law of fixtures and fittings) and planning law (the Skerritts test). When deciding if something is a ‘building’ the Supreme Court found that the Skerritts test should apply. They saw the property law tests as relevant but their use would be limited to considering whether an item is a curtilage object, a point which will not be covered here.

As a starting point, the Supreme Court did not find fault in applying Skerritts, a planning case, in the heritage context. Skerritts considered the definition of building as stated in the Town and Country Planning Act 1990 (TCPA): that a building means a ‘structure or erection’[v]. That same definition is use in the Listed Buildings Act.

Skerritts looked at what considerations are relevant when assessing whether something is a building. Merely relying on something being an ‘erection’, as per the TCPA, was not clear enough. These considerations are:

  1. Size
  2. Degree of permanence
  3. Degree of physical attachment

In practice, the Supreme Court felt the method of erection or construction was also relevant when assessing the above[vi].

They correspondingly looked at the language of the Listed Buildings Act and inferred the intention of Parliament from this. By using words like ‘demolition’, for example in section 7 (which Mr Dill had breached), the Supreme Court concluded that this ‘clearly envisages some form of dismantling[vii] and that Parliament had in mind a more substantial structure, requiring more than mere removal.

What happens next, in the Dill case and wider?

The Supreme Court, although putting forward arguments on both sides as to whether Mr Dill’s items were buildings, did not make a judgment on it. As such, Mr Dill could still face prosecution if following a redetermination of his appeals the Inspector decided on the facts that the items are ‘buildings’. Although the Supreme Court went as far as urging the authorities to stop pursuing Mr Dill, this case may not yet be over.

Regardless of what comes next, it is important for the integrity of the statutory list to be maintained in order to continue protecting heritage assets. The Supreme Court highlighted the ‘disturbing’[viii] lack of guidance and the absence of case law, both of which might assist with future questions on whether something is a ‘building’.

Further clarification is needed for decision-makers and landowners on the implications of this decision, both in an effort to continue protecting heritage assets and give clear guidance to individuals who face the consequences of failing to do so.

Registration will soon be open for the next instalment of Burges Salmon’s Planning & Compulsory Purchase webinar series, Heritage – A Practical Approach to Law and Policy, in which Sarah Sutherland and Danny Whittle will discuss a range of issues and recent developments in heritage planning law. The webinar will be of interest to planning authorities, developers and landowners dealing with heritage assets. Please see our webinar homepage, for more details.

[i] [2020] UKSC 20

[ii] Section 7 of the Listed Buildings Act 1990

[iii] Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and Regions (No 2) [2000] JPL 1025

[iv] It could be viewed as an extension of the section 21(3) LBA 1990 ground of appeal against refusal of Listed Building Consent or a new twelfth ground of appeal against an enforcement notice under s.39(1)

[v] Section 336 of the Town and Country Planning Act 1990

[vi] Paragraph 52 of the judgement

[vii] Paragraph 53 of the judgement

[viii] Paragraph 28 of the judgement

Key contact

Patrick Robinson

Patrick Robinson Consultant

  • Energy and Utilities
  • Infrastructure
  • Planning and Compulsory Purchase

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