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Definition of building clarified in landmark listing dispute

Supreme Court gives guidance as to definition of building in landmark listing dispute.

The curious and long-running case of the urns that Stratford-on-Avon District Council had classified as a ‘listed building’ has been brought to an end by the Supreme Court.

In Dill v Secretary of State for Housing and Local Government it ruled that the items appearing on the statutory list was not conclusive as to their status as "listed buildings" - and that for something to fulfill the statutory definition of "listed building" there were two essential elements: it must be both a "building" and it must be included in the list.

Facts

The case centres around a pair of early 18th century lead urns that rested on limestone pedestals (“the items”) at the appellant, Dill's home, Idlicote House, in Shipston-on-Stour. In 2009, he sold them for £55,000 at auction.

Originally commissioned for Wrest Park in Bedfordshire where they remained until 1939, the urns were moved by Major Dill (Dill’s father) to the garden of Idlicote House and in 1986 they were added to the list of listed buildings under s.54 of the Town and Country Planning Act 1971, subsequently being included in the register of local land charges. Idlicote House, along with the urns in situ, was acquired by Dill in 1993, who was unaware of the items’ presence on the list. Dill sold the items in 2009.

On 29 April 2015 Stratford-on-Avon District Council (the second respondents) informed Dill that listed building consent had been required for the items to be removed. Dill made a retrospective application for consent, which was refused on 11 February 2016.

On 26 April 2016 the council issued a listed building enforcement notice requiring the reinstatement of the urns at Idlicote House. Dill appealed against the refusal of listed building consent and the issuing of the enforcement notice to the Secretary of State for Housing, Communities and Local Government (the first respondent). The grounds of appeal included the argument that the items were not “buildings” for the purposes of the Listed Buildings Act.

In 2017, Dill’s appeals were dismissed by a planning inspector, on the basis that ‘the status of the items as “buildings” was established by the listing and he could not reconsider the issue’.

Dill’s appeal was rejected by the High Court as well as the Court of Appeal, on the basis that the listing was conclusive of the items being “buildings”.

In 2020, the Supreme Court disagreed and found in Dill’s favour, among other things concluding that the urns should never have been listed in the first place.

What is the statutory definition of listed building?

Lord Carnwath held that in order for something to fulfill the statutory definition of "listed building" there were two essential elements: it must be both a "building" and it must be included in the list: “If it is not in truth a building at all, there is nothing to say that mere inclusion in the list will make it so".

Lord Carnwath further held that the three-fold Skerritts test should be applied to deciding whether garden ornaments and other objects are "buildings" in their own right, assessing the "size, permanence and degree of physical attachment" to the land.

He also concluded that it is "important to keep in mind the purpose of listed building control, which is to identify and protect buildings of special architectural or historic interest. It is not enough that an object may be of special artistic or historic interest in itself; the special interest must be linked to its status as a building”.

Wider Impact

The decision may impact other applications for removing items from the statutory list.

Simon Stanion, planning partner at Shakespeare Martineau who acted for Dill, said: "This is an important decision not only in terms of the matters that may be raised by way of listed building enforcement appeal, but also in terms of the guidance handed down by the court regarding assessing whether individually listed items, such as the urns in this case are in fact 'buildings'."

Posted on 4 June, 2020 by Ortolan

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