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Guidance from Historic England has indicated that objects like garden vases, basins, seats and statutes can be protected as a listed building whether alone as a freestanding structure or as a structure within the curtilage of a listed building.
However, the recent Supreme Court decision in Dill v Secretary of State for Housing, Communities and Local Government and another
 UKSC 20 has clarified, in contradiction to Historic England’s guidance, the legal test for when objects and structures are a ‘building’ entitling protection on the register of listed buildings.
Section 1(1) the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Listed Buildings Act”) requires the Secretary of State to compile lists of buildings of special architectural or historic interest. In relation to objects and structures, section 1(5) provides:
“In this Act ‘listed building’ means a building which is for the time being included in a list compiled or approved by the Secretary of State under this section; and for the purposes of this Act -
a) any object or structure fixed to the building;
b) any object or structure within the curtilage of the building which, although not fixed to the building, forms part of the land and has done so since before 1 July 1948, shall … be treated as part of the building.”
Section 7 provides that no person shall execute or cause to be executed any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest, unless the works are authorised by listed building consent under section 8. By section 9(1), if a person contravenes section 7, he shall be guilty of an offence. Section 10 makes provision for the making of applications for such consent. Section 16(1) provides that the local planning authority or the Secretary of State may grant or refuse an application for listed building consent and, if they grant consent, may do so subject to conditions.
Facts of the Case
The Dill case
concerned the correct treatment of a pair of early 18th century lead urns each resting on limestone piers of a slightly later date (“the items”). The piers were not attached to the ground and the urns were not attached to the piers. The owner of the items would take them with him when he moved houses. In 1973 the owner moved to the Grade II listed building known as Idlicote House in Warwickshire where the items were placed on either side of a path in the gardens which had served as the front drive to the house. In June 1986 the items where added to the register of listed buildings as standalone listed structures (ie. s1(1)(a) above).
In 2009 the current owner of the items and Idlicote House removed the items and sold them at auction. After retrospective listed building consent was refused, the council subsequently served a listed building enforcement notice. The owner lost on appeal with the inspector deciding that the register listed buildings was conclusive evidence of the lawful listing of the items and he could not therefore consider whether they were a ‘building’ protected under the Listed Buildings Act.
The owner judicially reviewed the inspector’s decision and, having failed in the High Court and the Court of Appeal, appealed to the Supreme Court who considered the following two issues:
Issue 1 - The legal test for an item to be a ‘building’ protected by the register of listed buildings
- what criteria are relevant in determining whether an item is a ‘building’ such as to lawfully appear in the register of listed buildings; and
- whether an inspector considering an appeal of a listed building enforcement notice can consider whether or not something on that register is a “building”.
The Supreme Court noted the two categories for which an item may be listed on the register under section 1(1)(a)&(b) of the Listed Buildings Act and explained in their decision the relevant legal tests for each as follows:
- Standalone listed items (section 1(1)(a)):- Requires assessment on the balance of probabilities of three criteria: (1) size; (2) permanence ; and (3) degree of physical attachment.
- The Supreme Court illustratively concluded in contrary reference to an example of a listing in Historic England’s Guidance that ‘it is hard to see how it could be appropriate to include without discrimination items such as “vases, basins … seats, ... and statuary”, without any indication of how they might be brought within any part of the definition, whether as separate buildings or as curtilage structures under the extended definition. In particular, most ordinary forms of garden vases or seats would be unlikely to have become part of the land in real property terms, nor would they naturally be regarded as “buildings” under any of the tests considered above’.
- Items within the curtilage of a listed building (section 1(1)(b)):- Requires assessment on the balance of probabilities of two criteria: (1) the method and degree of annexation; (2) the object and purpose of the annexation.
The Supreme Court illustratively concluded that a statue or other ornamental object, which is neither physically attached to the land, nor directly related to the design of the relevant listed building and its setting, cannot be treated as a curtilage structure and so part of the building within the extended definition.
Each of the above legal tests are a matter of planning judgement of the decision making. In the Dill case
the appeal decision was quashed and referred back to the Secretary of State for re-determination.
Issue 2 – Can a ground of appeal challenge whether listed items are ‘buildings’?
The Supreme Court found that an owner can raise as a ground of appeal for determination whether the items in question are a ‘building’ and thus protected under the Listed Buildings Act.
The Court noted that a listed building means “a building which is … included in [the] list …” and concluded there are two essential elements: it must be both a “building” and it must be “included in [the] list …”. Accordingly, if the item is not in truth a building at all then there is nothing to say that mere inclusion in the list will make it so (ie. the list is not conclusive). The Court stated that there is no reason to displace the ordinary presumption that the accused may raise any relevant defence and therefore nothing prevents a ground that the item on the list is not a “building” and so not within the definition.
This clear decision of the Supreme Court both re-defines and clarifies what ‘buildings’ are protected under the Listed Buildings Act. The divergence from current Historic England guidance will likely see more challenges to whether currently listed items are protected as well as applications for their removal from the listed buildings register on such basis.
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