Dill v Secretary of State for Housing, Communities and Local Government
[2020] UKSC 20
Independent editorial summary — not the official judgment. Read the full judgment via the source link.
Ratio Decidendi
Inclusion of an item in the statutory list is not conclusive of its status as a 'building': a listed building must be both a building and included in the list, so on a listed building enforcement appeal under section 39 of the Planning (Listed Buildings and Conservation Areas) Act 1990 - as in criminal proceedings under section 9 - the owner may contend that the listed item is not a building at all. Whether a free-standing item qualifies as a building in its own right is assessed by the threefold Skerritts criteria of size, permanence and degree of physical attachment, which apply in the listed building context just as in planning; real-property fixture concepts govern only the extended 'curtilage structure' definition.
Facts
A pair of early 18th-century lead urns attributed to the Flemish sculptor John van Nost, each resting unattached on a limestone pier, had been moved by the Dill family from Wrest Park through successive family homes before Major Dill placed them in the garden of Idlicote House in 1973; in June 1986 the items were added to the statutory list in their own right. Mr Marcus Dill, who acquired the house and items in 1993 unaware of the listing, removed them and sold them at auction in 2009 for £55,000. The council refused his retrospective application for listed building consent and issued a listed building enforcement notice requiring their reinstatement; the inspector dismissed his appeals on the footing that the listing conclusively established the items' status as buildings, and the High Court and Court of Appeal upheld that view.
Judgment Summary
The Supreme Court unanimously allowed Mr Dill's appeal. Lord Carnwath, with whom the whole court agreed, held that 'listed building' has two essential elements - the item must be both a building and included in the list - so mere inclusion cannot make something a building, and nothing displaced the ordinary presumption, reinforced by the criminal character of listed building contraventions, that the owner may raise the point on an enforcement appeal under section 39. On the second issue, the court held that the threefold Skerritts test of size, permanence and degree of physical attachment applies to whether an item is a building in the listed building context, real-property fixture concepts being relevant only to the extended curtilage-structure definition. The enforcement appeal was remitted for redetermination, the court observing that applying those tests to the urns involved factual evaluation best dealt with by a planning inspector, criticising the lack of clarity in the official listing guidance, and urging the respondents to consider whether pursuing enforcement against Mr Dill was fair or expedient.
Key Quotes
"Thus there are 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, para 24(verbatim, verified against the judgment)
"Skerritts provides clear authority at Court of Appeal level for the three-fold test, albeit imprecise, of size, permanence and degree of physical attachment. No preferable alternative has been suggested in this court. Given that the same definition of “building” is adopted in the Listed Building Act, it is difficult to see any reason in principle why the same test should not apply."
— Lord Carnwath, para 52(verbatim, verified against the judgment)
Subsequent Treatment
The leading modern authority that listing is not conclusive of 'building' status and that the Skerritts threefold test (size, permanence, degree of physical attachment) governs what counts as a building in the listed building context; Lord Carnwath also called for revision of the official listing-selection guidance whose lack of clarity the judgment criticised.
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