IS IT ON THE LIST?

28 / 03 / 2019

The Planning (Listed Buildings and Conservation Areas) Act 1990 plays a crucial role in protecting the country’s heritage, but it can be a hindrance to landowners by restricting development and potentially exposing them, sometimes unknowingly and without fault, to the risk of enforcement action being taken many years after a breach has occurred.

The legislation precludes works to a listed building being undertaken without authorisation if they would affect its character as a building of special architectural or historic interest. Unauthorised works may result in criminal proceedings and (unlike planning legislation) there is no immunity from listed building enforcement action through passage of time.

The oddities and hidden dangers of the system were exemplified in the recent Court of Appeal case of Dill v Secretary of State [2018] EWCA Civ 2619.

As well as providing a very useful potted summary of the evolution of listed building legislation and the current legal framework, the case clarifies the scope of what is meant by a “listed building”, who determines whether something is a listed building, and the options for challenging a listing. It is also a reminder of the strict liability for contravention of listed building laws.

There are three distinct routes by which something may qualify as a listed building under the legislation, namely by being:

  • listed as a building in the statutory list compiled by the Secretary of State; or
  • an object or structure fixed to the building; or
  • an object or structure that lies within the curtilage of a listed building and which has done so since before 1 July 1948.

The case centred on the first of these routes and had an unusual factual background, relating to two early 18th Century lead urns and their limestone piers created by Flemish sculptor John van Nost. The piers and urns were moved in 1973 to Idlicote House, a Grade II listed building on the edge of the Cotswolds, but had no historical connection to the house, having been moved from one property to another over the years. The piers and urns were then added to the statutory list in 1986 as listed buildings in their own right. When Mr Dill inherited Idlicote House in 1993 he was not aware that the items were separately listed, and he later sold them at auction to an unknown purchaser for £55,000. They were apparently exported, never to be seen again.

The removal of the piers and urns was discovered by the local planning authority five years later. Mr Dill applied for retrospective listed building consent to remove the items, which was refused, and the LPA took enforcement action against him requiring them to be returned; presenting a difficulty as Mr Dill no longer knew of their whereabouts. Mr Dill appealed those decisions, which ultimately came before the Court of Appeal.

It will seem odd to many that objects and structures can be classed as listed buildings even if they bear no resemblance to a building. Mr Dill was one such person and argued that the items were not “buildings”, so that no listed building consent was required to remove them and enforcement action could not therefore be taken.

The Court of Appeal disagreed and ruled that being included on the statutory list as a listed building is determinative of the status of a structure or object as a listed building. It is not open to a planning inspector or judge to ‘go behind the listing’ and consider whether or not something on the list is a building.

The case then considered the options for challenging the validity of a listing and the correct time for doing so.

An appeal against refusal of listed building consent can be made on a merits-based ground that the listed building is not of a special architectural or historic interest, and can result in the building being de-listed. However, the Dill case clarified that the actual validity of a listing cannot be challenged in that way as a planning inspector does not have the power to consider the validity of the listing in the first place and quash the listing. Affected owners can only object to the validity of a listing by challenging a decision at the time of the listing. Otherwise, a building can only be de-listed if the listing was made in error, which wasn’t applicable in the Dill case.

The case serves as a reminder of the complexities and risks of buying a listed building. The extent of any listing, including any separate objects or structures that may be of special architectural or historical interest, needs to be thoroughly checked (Historic England’s web site being a good first port of call).

Being unaware of a building’s listing is no defence and owners can face enforcement action at any time after a breach has occurred. This could extend to breaches committed by previous owners, so enquiries should always be made to confirm that no unauthorised works have taken place in the past.