The Supreme Court today handed down judgment in the case of Dill v Secretary of State for Housing, Communities and Local Government and another [2020] UKSC. The case concerned a pair of 18th century lead urns and limestone piers attributed to the Flemish sculptor John Van Nost. The urns and piers were originally located in the gardens of Wrest Park in Bedfordshire and remained there until 1949 when they were moved to Coles Park in Hertfordshire. In 1955 the Appellant’s father sold Coles Park and took the urns and piers with him to another property. Following a number of further moves,  in 1973 the urns and piers came to rest in thee gardens of Idlicote House, Warwickshire where they remained until 2009 when the Appellant, who had acquired them following his father’s death, sold them at auction. It is understood that they were then removed from the United Kingdom.

When the local planning authority became aware of their removal, it issued a listed building enforcement notice requiring them to be reinstated. It also refused a retrospective application for listed building consent by Mr. Dill. Mr. Dill appealed to the Secretary of State on grounds including that the urns and piers were not “buildings” and therefore had been erroneously classified as “listed buildings”. The inspector appointed by the Secretary of State dismissed the appeals and held that the status of the items as “buildings” was established by the list itself and that he could not go behind it. Mr. Dill challenged the inspector’s decisions in the High Court, which dismissed his claims on the ground that identification of item as a “listed building” on the statutory list was conclusive of its status as such and that therefore the only way to challenge the listing on the ground that what was listed was not a “building” was by way of judicial review or an application to the Secretary of State to amend the list. The Court of Appeal upheld the judgment of the High Court for essentially the same reasons.

The Supreme Court, however, allowed Mr. Dill’s appeal holding:

  • It is a principle that individuals affected by a legal measure should have a fair opportunity to challenge the measure and to vindicate their rights in court proceedings. In applying this principle, the context of the particular statutory scheme in question is relevant. In the parallel context of breach of planning control, the statutory grounds of appeal are so wide that they include every aspect of the merits of the decision to serve an enforcement notice. It is hard to see why it should be any different in the context of a listed building enforcement notice. Indeed, the question of whether something is a “building” may raise difficult issues of factual judgment which an inspector appointed under the statutory scheme is more appropriately placed to decide than the High Court on judicial review.
  • The fact that the piers and urns were identified on the statutory list as buildings was not necessarily determinative of their status as such. Hence, the question whether they were “buildings”, and hence “listed buildings”, was a matter which the Appellant was entitled to raise in the appeal against the listed building enforcement notice.
  • The enforcement appeal therefore was remitted to the Secretary of State for redetermination in light of the Court’s judgment.

Although the Court did not decide whether the urns and piers were actually buildings, it gave guidance on the legal principles in play. In particular, it accepted the submission of the Secretary of State and the District Council that the core definition of “building” in the Planning (Listed Buildings and Conservation Areas) Act 1990 (as opposed to the extended definition in s.1(5)) involves a move away from real property analogies and that the threefold test applied in Skerritts of Nottingham relating to size, permanence and degree of attachment was applicable.

The judgment has potentially significant implications for many items currently included on the statutory list whose designation as “buildings” may be controversial or debatable, particularly statuary and garden items. As a consequence of the judgment it will be open to owners to argue, seemingly in all relevant contexts (including criminal prosecutions), that an item on the list is not in fact a “listed building”. On the other hand, the judgment has confirmed that the tests that the courts have previously endorsed for the purpose of determining whether something is a building for the purposes of the main planning Acts also apply in the context of the listed building legislation.






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