Dill v Secretary of State for Housing, Communities and Local Government and another [2020] UKSC 20

Mr Dill sold a pair of 18th century lead urns on limestone piers from his garden, unaware they were listed. The Supreme Court held he could challenge whether they were 'buildings' at all in enforcement proceedings, and that the Skerritts tests apply.

Facts

The case concerned a pair of early 18th century lead urns attributed to the Flemish sculptor John van Nost, each resting on a limestone pedestal (collectively ‘the items’). Originally at Wrest Park, the items passed through several properties of the Dill family before being placed in the garden of Idlicote House in 1973, flanking a path. They were free-standing: the piers were not attached to the ground and the urns were not attached to the piers.

Idlicote House was listed Grade II in 1966, and in June 1986 the items were separately added to the statutory list under section 54 of the Town and Country Planning Act 1971. In 2009, Mr Marcus Dill, unaware of the listing, removed and sold the items at auction for £55,000. English Heritage had been notified but did not respond.

In 2014, the local planning authority discovered the removal. Mr Dill’s retrospective application for listed building consent was refused, and a listed building enforcement notice was issued requiring reinstatement. On appeal, the planning inspector held that the items’ status as ‘buildings’ was established by the listing and could not be reconsidered, and that the so-called Skerritts tests were irrelevant. Singh J and the Court of Appeal upheld that approach.

Issues

Two issues were agreed before the Supreme Court:

• Whether an inspector considering an appeal under section 20 or section 39 of the Planning (Listed Buildings and Conservation Areas) Act 1990 can consider whether something on the statutory list is a ‘building’.
• What criteria are relevant to determining whether an item appearing on the statutory list in its own right is a ‘building’: property law concepts of annexation, or the Skerritts tests of size, permanence and degree of annexation.

Arguments

Mr Dill (appellant) argued that inclusion on the list could not be determinative where the underlying question was whether the item was in truth a ‘building’ at all; the planning appeal must permit that challenge, and the Skerritts criteria should govern.

The Secretary of State (respondent) accepted the general presumption in favour of a fair opportunity to challenge legal measures (citing Boddington v British Transport Police) but submitted that within this particular statutory scheme the identification of an item as a ‘building’ was not a matter for the statutory appeal route, judicial review providing the appropriate challenge. Certainty as to listing was emphasised, citing Lord Hope in City of Edinburgh Council v Secretary of State for Scotland.

Judgment

First issue: scope of appeal

Lord Carnwath (with whom Lord Wilson, Lady Arden, Lord Kitchin and Lord Sales agreed) allowed the appeal on the first issue. The statutory definition in section 1(5) requires two elements: the item must be a ‘building’ and it must be included in the list. Mere inclusion cannot make something a building if it is not one. Contravention of section 7 is a criminal offence under section 9(1), and there is no equivalent to the exclusivity provision in section 64 that would prevent an accused arguing the item is not a building. By parity of reasoning, the same point can be raised on an enforcement appeal under section 39(1)(c) (that the matters do not constitute a contravention).

Lord Carnwath drew on R v Wicks [1998] AC 92, noting Lord Hoffmann’s observation that statutory grounds of appeal include ‘every aspect of the merits’. Questions whether a structure is a ‘building’ often involve factual evaluation better suited to a planning inspector than to judicial review. On a successful appeal, the Secretary of State has power under section 41(6)(c) to remove the item from the list, which in practice would protect the owner against further proceedings.

Second issue: criteria for ‘building’

The court held that the Skerritts criteria (size, permanence and degree of physical attachment), derived from Skerritts of Nottingham Ltd v Secretary of State (No 2) [2000] JPL 1025, Barvis Ltd v Secretary of State for the Environment (1971) 22 P & CR 710, and Cardiff Rating Authority v Guest Keen Baldwin’s Iron and Steel Co Ltd [1949] 1 KB 385, apply equally in the listed building context, since the same definition of ‘building’ in section 336 of the Town and Country Planning Act 1990 applies.

Lord Carnwath distinguished this from the ‘extended definition’ in section 1(5)(a) and (b), which brings in real property concepts (fixtures and forming part of the land) in relation to curtilage structures. He drew on Corthorn Land and Timber Co Ltd v Minister of Housing and Local Government, Debenhams plc v Westminster City Council [1987] AC 396, and Berkley v Poulett [1977] 1 EGLR 86, and the more recent Tower Hamlets London Borough Council v Bromley London Borough Council [2015] EWHC 1954 (Ch). He observed that a free-standing statue not physically attached nor part of an integral design with the listed building could not be a curtilage structure.

He expressed concern at the lack of clarity in Historic England’s and the Department’s guidance, noting that the second sentence of paragraph 6 of the Principles of Selection for Listed Buildings (2018) conflated the separate questions of curtilage status and independent building status.

Applying the principles provisionally, Lord Carnwath observed the items were unlikely to qualify as curtilage structures (placed after July 1948, freely movable, not related to the design of Idlicote House). As to Skerritts, arguments went both ways: although assembled on site and intended to be permanent, the items were not particularly large, were easily installed and removed, and the urns themselves rested loose on the piers. These were matters for the inspector on remittal.

Implications

The decision confirms that in a listed building enforcement appeal, the owner can argue that the listed item is not in fact a ‘building’ within section 1(5), and the inspector must determine that question. The court rejected the view that mere inclusion on the list is conclusive as to the item’s status as a building.

The Skerritts three-fold test (size, permanence and degree of physical attachment) is endorsed as the governing test for whether an item is a ‘building’ in its own right for listing purposes. Real property fixtures concepts are relevant only to the extended definition (curtilage structures and objects fixed to a building), not to the primary question of what constitutes a building.

The decision draws an important distinction between listing an item as part of a building (under the extended definition, requiring real property annexation) and listing an item as a building in its own right (requiring satisfaction of the Skerritts criteria). The court criticised existing guidance from Historic England and the Department for Digital, Culture, Media and Sport for blurring this distinction, and urged revision.

The judgment also emphasises that listed building control protects buildings of special architectural or historic interest, and the historic interest must be linked to the object’s status as a building erected in a particular place, not merely its intrinsic artistic or historic significance.

Practically, the decision matters to owners of historic artefacts, garden ornaments, statuary, and works of art which have been separately listed, who may now be able to challenge that listing through the planning appeal route. Lord Carnwath suggested the respondents give serious consideration to whether continued enforcement against Mr Dill remained fair or expedient in the public interest.

Verdict: Appeal allowed. The Supreme Court held that an inspector can and must consider whether an item on the statutory list is a ‘building’, and that the Skerritts criteria (size, permanence and degree of physical attachment) apply to that determination. The matter was remitted to the Secretary of State for redetermination.

Source: Dill v Secretary of State for Housing, Communities and Local Government and another [2020] UKSC 20