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Supreme Court hands down key ruling on listed buildings

Planning inspectors should reconsider whether two lead urns that were placed on top of limestone piers at a historic house were ‘buildings’ or not, the Supreme Court has ruled.

The case of Dill v Secretary of State for Housing, Communities and Local Government and another [2020] UKSC 20 was brought by Marcus Dill, owner of Idlicote House, who had failed in earlier actions in the High Court and Court of Appeal against Stratford-on-Avon District Council’s enforcement.

The case concerned a pair of early 18th century lead urns originally commissioned for a historic garden at Wrest Park in Bedfordshire.

Mr Dill’s father in 1973 moved them to the garden of Idlicote House and in June 1986 they were added to the list of listed buildings, though no record exists of notice of the listing having been served.

The urns were sold at auction in 2009 by Mr Dill who was unaware of their listed status.

Stratford-on-Avon discovered this in 2015 and told him listed building consent had been required for their removal.

It refused his retrospective application for consent in February 2016, and issued a listed building enforcement notice requiring the urns' reinstatement.

Mr Dill appealed to the Secretary of State for Housing, Communities and Local Government on the ground that the urns were not buildings for the purposes of the Listed Buildings Act.

A planning inspector dismissed this and Mr Dill’s two unsuccessful court actions followed.

Giving the Supreme Court's unanimous ruling, Lord Carnwath said: “It is an essential element that the thing in issue be a ‘building’. If it is not in truth a ‘building’ at all, there is nothing to say that the mere inclusion in the list will make it otherwise.”

He said there was a need for general guidance on the legal principles to determine whether something constitutes a ‘building’.

Lord Carnwath said: “This case has revealed a disturbing lack of clarity about the criteria which have been adopted by the relevant authorities, not only in this instance but more generally, in determining whether free-standing items such as these are regarded as qualifying for listing protection, whether as ‘curtilage structures’, or as separate ‘buildings’ as in this case.

“Even now, in spite of the issue having been raised by Mr Dill in 2015, and after a planning appeal and three court hearings, he has had no official explanation of the criteria by which it was determined that these items qualified as ‘buildings’.”

The two urns had originally formed part of Wrest Park and had arrived at Idlicote House centuries later and “also, being freely movable, there is no suggestion that they were related in any relevant way to the design of that particular listed building and its setting. The applicable real property tests were not satisfied.

“If they had been resting on the ground, rather than a plinth, I doubt if it would have occurred to anyone that they might qualify as buildings.”

Although Lord Carnwath said an inspector should reconsider the matter, he cautioned the council as to whether it was sensible to continue the case.

“Since this problem was first drawn to [Mr Dill’s] attention by the local authority in April 2015 he has been attempting to obtain a clear ruling on that issue,” the judge said.

“On the view I have taken, that opportunity has been wrongly denied to him for five years.

“Even if his appeal were ultimately to fail, the practicability of restoring the vases to their previous location in the grounds of Idlicote House is uncertain.

“Accordingly, this court’s formal order for remittal should not prevent the respondents from giving serious consideration to whether in all the circumstances it is fair to Mr Dill or expedient in the public interest to pursue this particular enforcement process any further.”

Mark Smulian

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