In Dill v Secretary of State for Communities and Local Government & Another [2017] EWHC 2378 (Admin), the High Court has confirmed that it is not possible on appeal against listed building enforcement to challenge the merits or lawfulness of a historic decision to list heritage assets. The judgment also confirms the breadth of what may be a ‘listed building’.
The claimant inherited a Grade II listed house in the early 1990s, which included within its curtilage two early eighteenth century lead urns (and their limestone pedestals). The house had been listed in 1966 but the urns and pedestals were listed later (in 1986). The owner sold (and exported) the items in 2009, unaware of their status. The authority refused a retrospective application for listed building consent to remove the urns and piers and issued a listed building enforcement notice for their reinstatement. In refusing the resulting appeals, the inspector concluded that he could not question the merits of the 1986 listing decision and the urns and piers were “buildings” under the Act.
The High Court held that the inspector could not quash a listing entry as unlawful (Boddington v British Transport Police [1999] 2 A.C. 143 and Wandsworth LBC v Winder (No.1) [1985] A.C. 461 considered). He was, however, entitled to consider whether the urns and piers were incapable of reasonably being considered to be a building at all. Under the Planning (Listed Buildings and Conservation Areas) Act 1990, they could be listed buildings by virtue of being on the statutory list, being within the curtilage of the listed house or being fixed to it. On the facts, they were on the list and so satisfied the definition.
The case is a reminder of how far the reach of listed building control may extend and how important it is to exhaustively check the scope and status of the heritage assets that may be affected by property dealings.
Roy Pinnock is a partner in the planning and public law team at Dentons
