Supreme Court: Enforcement Appeal Inspector should have considered whether decorative urns were “buildings”

Supreme Court: Enforcement Appeal Inspector should have considered whether decorative urns were “buildings”

• Shakespeare Martineau secures landmark Supreme Court decision, flipping the direction of a five-year planning battle between a member of the public and Stratford-upon-Avon council
• The dispute centres around the listing of free-standing items and how it should be determined that they are “buildings”
• The ruling states that an Enforcement Appeal Inspector should have considered whether decorative 18^th century listed urns unknowingly sold by Mr. Marcus Dill were “buildings”
• The Supreme Court gives guidance on the criteria for identifying something as a “building”
• Backing by the Supreme Court throws doubt over whether the case against Mr. Dill will be progressed by the council, or whether the enforcement notice against him is dropped
• A successful appeal for Mr. Dill could lead to major changes to UK planning laws and a rethink about how listed items are categorised in the future

The current ruling

On 20 May 2020, the Supreme Court allowed an appeal by Mr. Marcus Dill against a decision of the Court of Appeal that a Listed Building Enforcement Appeal Inspector could not consider Mr. Dill’s submission that two 18^th century listed urns, sold at auction by Mr. Dill, were not “buildings” and therefore should not have been listed.

Two issues were before the Supreme Court:

• One procedural - Whether an inspector determining an appeal under the Town and Country Planning (Listed Buildings and Conservation Areas) Act 1990 can consider whether or not something on the statutory list is a “building”
• One substantive - What criteria are relevant in determining whether an item appearing in its own right in the statutory list is a “building”

In finding that the inspector in Mr. Dill’s case was wrong not to have considered whether the listed urns were “buildings”, the Supreme Court quashed the decision to dismiss Mr. Dill’s appeal against the listed building enforcement notice and remit that appeal to the Secretary of State for redetermination.

Simon Stanion, planning partner at law firm, Shakespeare Martineau, who acted on behalf of Mr. Dill, said: “This decision of the Supreme Court is a complete vindication of the position taken by Mr. Dill from the very outset of this matter.

“In 2009, he sold these items in good faith only to discover in 2015 that they had, without the knowledge of the family, in fact been listed 23 years earlier. Despite being unable to confirm that formal notice of their listing had been given to the family as required by the legislation, the local planning authority issued an enforcement notice requiring them to be restored to Idlicote House.

“To add insult to injury, it was not possible for Mr. Dill in any event to comply with the enforcement notice because the items were no longer within the jurisdiction. Faced with the unpalatable prospect of being prosecuted for non-compliance with the enforcement notice, Mr. Dill decided to appeal, as this was in effect the first opportunity he had to challenge the listing of the urns – that opportunity having been denied to him when the listing took place due to the lack of notification.  So began a long and stressful journey involving not only the dismissal of his original appeal, but unsuccessful challenges to that decision in both the High Court and Court of Appeal.

“I am incredibly pleased for him that he has finally received the result his tenacious belief in justice has deserved over the last few years. This is an important decision not only in terms of the matters that may be raised by way of listed building enforcement appeal, but also in terms of the guidance handed down by the Court regarding assessing whether individually listed items, such as the urns in this case are in fact “buildings”.”

Marcus Dill said: “I am delighted that the Supreme Court has upheld my appeal against SSHCLG and Stratford District Council and am pleased to have received a judgment that restores my faith in the British judicial system. The choice I faced in 2015 was to appeal against the enforcement notice or risk criminal prosecution. I chose to appeal because common sense suggested that the piers and finials were not buildings, that errors had been made in their listings, and that I held more relevant information than the Secretary of State and Historic England. I could not have known the toll that decision would take on myself, my family and my business but the prospect of a criminal record, a fine and possible incarceration was unthinkable. I am extremely grateful for such a clear judgment at the final stage of this marathon battle and the support of my legal team and Rupert Werff at Summers Place Auctions, who handled the original sale and helped me negotiate and understand this difficult issue.”

Background to the case

The case centred around the sale by Mr. Dill at auction in 2009 of a pair of early 18^th century lead urns in order to raise money for the maintenance of Idlicote House, where the urns had rested either side of a driveway leading up to the house.

The items had been in Mr. Dill’s family since the early 1900s, originally at Wrest Park in Bedfordshire, and had moved with the family from residence to residence, finally ending up at Idlicote House in 1973.

Completely unbeknown to the family, including Mr. Dill, the items had been listed in their own right in June 1986 under section 54 of the Town and Country Planning Act 1971. Despite enquiries, the listing decision and paperwork on which it was based have never been found. Although Mr. Dill sold the items in ignorance of their listing in 2009, it was not until 2014, when the Council became aware of the sale, that they began correspondence with Mr. Dill in relation to possible enforcement.

In April 2015, the council informed Mr. Dill that listed building consent had been required for the removal of the urns and threatened formal action. Mr. Dill then made a retrospective application for listed building consent, but this was refused by the council in February 2016.

Following this rejection, a listed building enforcement notice requiring the reinstatement of the items at Idlicote House was issued in April 2016. Given Mr. Dill’s understanding that the urns had since been removed from the United Kingdom, and thathe did not have access to any information regarding the purchaser, reinstating the items was not a feasible solution. As a result, he appealed to the Secretary of State against the refusal of listed building consent and the enforcement notice on several grounds, including the items not being “buildings” and therefore not capable of being listed in their own right. What followed was three and a half years – and counting - of litigation for Mr. Dill.

The appeals were considered by a planning inspector appointed by the Secretary of State, who dismissed them in January 2017, deciding that because the status of the items as “buildings” was established by them being on the statutory list he could not reconsider them. Therefore, arguments raised on behalf of Mr. Dill regarding the size, permanence, and purpose and degree of annexation of the urns became irrelevant. This decision was then upheld by both the High Court in 2017 and the Court of Appeal in 2018.

Today’s ruling by the Supreme Court, however, supports Mr. Dill’s contention that he had the right to have the status of the items as “buildings” considered in the appeals.

Simon Stanion said: “This has been a long and complex fight, and whilst we always had confidence in our case, the decisions in the High Court and Court of Appeal obviously raised the prospect – not least in Mr Dill’s mind - that this wouldn’t have a happy ending”.

“At the end of the day, however, all that matters is that Mr. Dill’s counsel, Richard Harwood Q.C. assisted in the Supreme Court by Catherine Dobson, was able to persuade the Supreme Court to accept the force of the arguments he had made on behalf of Mr. Dill from the very outset of this matter.”

Marcus Dill said: “I was sure of the facts of this matter: the urns had passed down three generations and had moved with the family from place to place in the 1950s, 1960s and 1970s. They had no relation to the listed houses where they had been situated, least of all Idlicote House where they ended up, and nothing in the listing description recognized their true provenance. I had acted in good faith when I sold the urns and I had no reason to believe they were listed or that they were ‘buildings’ in law.”

Why is this important?

Firstly, on the facts of this particular case, Mr. Dill felt he was being denied by the inspector of the one opportunity he had to challenge the basis for the listing of these items. The Supreme Court agreed that this was indeed the case – per Lord Carnwath “Since this problem was first drawn to his attention by the local authority in April 2015 he has been attempting to obtain a clear ruling on that issue.  On the view I have taken, that opportunity has been wrongly denied to him for five years” (Judgement [60]).

Contrary to what the Inspector and the courts below decided, the appearance of these items on the statutory list was not conclusive as to their status as “listed buildings”. Lord Carnwath held that in order for something to fulfill the statutory definition of “listed building” there were 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” (Judgement [24]).

Secondly, it is of note that the Court felt the need for more general guidance as to the legal principles in play because of what Lord Carnwath described as “a disturbing lack of clarity about the criteria which have been adopted by the relevant authorities, not only in this instance but more generally, in determining whether free-standing items such as these are regarded as qualifying for listing protection, whether as “curtilage structures”, or as separate “buildings” as in this case” (Judgement [28]).

In this regard Lord Carnwath also said (at [54]) “It is not enough that an object may be of special artistic or historic interest in itself; the special interest must be linked to its status as a building. That is implicit in the reference to “architectural” interest. But it is relevant in my view also to the concept of historic interest. The historic interest must be found not merely in the object as such, but in its “erection” in a particular place.”

Simon Stanion commented: “The urns involved were not permanent fixtures, neither did they have any architectural or historical association with Idlicote House. As such, it’s little wonder that it did not enter Mr. Dill’s mind that they could be candidates for listing, or that he would not be able to sell them without consequence.”

Marcus Dill said: “It became clear after the Appeal Court hearing that there was a lack of clarity about what constitutes a ‘listed building’ in law. It also became clear that the lower courts were not prepared to deal with this issue conclusively and the ‘disturbing lack of criteria’ mentioned by Lord Carnwath still remains beyond this judgment. If the Secretary of State has the power to anchor a citizen’s chattels to the land by classifying them as ‘listed buildings’ without the owner’s knowledge or due regard to provenance, that individual must have recourse to challenge the state’s definition of a ‘listed building’.”

Who is the decision relevant for?

The facts in this case are unusual, but not necessarily unique. There may be other instances in which items such as the urns in this case have been listed without the knowledge of the owners and the time for challenging the listing decision by way of judicial review has long since passed. The Supreme Court was not convinced, however, that judicial review was in fact the appropriate forum in which to challenge a decision, as here, that involved issues of fact and matters of judgement about what may or may not constitute a “building”.

This decision may therefore have wider implications than just deciding enforcement appeals, for example in relation to applications for removing items from the statutory list.

Simon Stanion said: “It is important to remember that Mr. Dill was facing possible criminal sanctions for disposing of these items, and it is clear that this fact was not lost on the Court in deciding the issues in the case.”

What does it mean going forward?

There is, of course still the prospect of Mr. Dill having to face a re-determination of his enforcement appeal. In these circumstances the appeal inspector would be legally obliged to consider Mr. Dill’s submission that if these items are not “buildings” there is no contravention against which to enforce, and in deciding whether they are buildings, to have regard to the criteria approved by the Supreme Court.

However, there is more than a hint in the final paragraph of Lord Carnwath’s judgement that the local planning authority should consider whether it should force the Secretary of State to redetermine the appeal at all:

“Even if his appeal were ultimately to fail, the practicability of restoring the vases to their previous location in the grounds of Idlicote House is uncertain. Accordingly, this court’s formal order for remittal should not prevent the respondents from giving serious consideration to whether in all the circumstances it is fair to Mr. Dill or expedient in the public interest to pursue this particular enforcement process any further” (Judgement [60]).

Simon Stanion said: “Mr. Dill will, I am sure, take particular comfort from the fact that the Supreme Court has acknowledged the impact that this sad and sorry tale has had on him over the last five years. It must not be forgotten that, had this case been decided against him, he would not only have faced an enormous legal bill, but the threat of prosecution for non-compliance with the enforcement notice, a threat that has been hanging over him for 5 years. There is at least a hint here of the Court considering he may have already been through enough.

“Although we have not yet reached the final chapter of this story, we very much hope that Mr. Dill will soon be able to draw a line under the whole affair.”

Contact us
For further information please contact Simon Stanion or another member of the planning team.

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