The Supreme Court’s judgment in Dill v Secretary of State for Housing, Communities and Local Government and another [2020] UKSC20 confirms the correct approach to interpreting the extent of listed buildings when considering enforcement.
The Inspector hearing an appeal against listing building enforcement notice for the removal of two urns noted on the listed building register concluded that he could not go “behind the list” in the way the appellant proposed (to find that the urns were not ‘buildings’). The Supreme Court rejected that approach (overturning the High Court and Court of Appeal).
Inclusion in the list does not necessarily mean that a listed object is a ‘building’. The judgment deals with the distinction between:
- buildings in this sense, and
- “objects or structures” which benefit from the ‘extended definition’ of listed buildings created in 1968 (by virtue of being fixed to a building or having been within its curtilage since before 1 July 1948).
Building test confirmed
For objects and structures not fixed to a building but placed within its curtilage since 1948, it is necessary to consider whether they constitute:
- a curtilage “object or structure” (and so part of the ‘building’ within the extended definition). The judgment confirms that a statue or other ornamental object can only be treated as such if it is physically attached to the land or directly related to the design of the relevant listed building and its setting, or
- a ‘building’.
The judgment confirms that in each case it is a question of fact based on whether the item in question would otherwise be correctly identified as a building, applying the following (Skerritts of Nottingham v SSETR (No.2) [2000]) criteria:
- Size
- Permanence
- Degree of physical attachment to the land.
The Court stated that there were arguments for and against the objects (in this case urns) being a building:
| Arguments for being a building | Arguments against being a building |
| Elements had been assembled together – “structure” | Objects not particularly large |
| Required a small crane to move and assemble – “erection” | Objects are physically separate |
| Intended to occupy a near permanent position – “permanence” | The objects might not have been considered buildings if they were place on the ground instead of plinths |
| Relative ease of installation and removal |
What’s the impact of the decision?
The status of a listed building can be questioned on appeals against listed building enforcement notices and what “building” means for listing purposes. An inspector can now re-determine the validity of the listing and challenge whether the item in question is really a building. As a result, more consideration will be given to the extent of a listed building and what is included in the meaning of the building. That being said, the Judge suggested that consideration be given to whether pursuing enforcement was fair on Mr Dill or expedient or in the public interest, hinting that the approach proceedings were heavy handed given the circumstances.
With thanks to Amy Carter for assistance with this blog.
