In 2009, Marcus Dill sold at auction two decorative urns that had until then stood on either side of the driveway leading up to his family鈥檚 grade II-listed manor, Idlicote House in Warwickshire, UK. At the time, he had no way of knowing that this seemingly innocuous transaction would kick off a five-year legal battle with the UK government that is only now drawing to a close after a landmark Supreme Court judgement.
The urns had been in Dill鈥檚 family since the early 1900s, and had their origins at the Wrest Park country estate in Bedfordshire. The items travelled with the family to several different properties before coming to rest at Idlicote House in 1973. When the urns were sold in 2009 to help support the maintenance of the estate at Idlicote, Dill was unaware that the urns had been listed in their own right in 1986 as having special architectural or historical value, under section 54 of the Town and Country Planning Act 1971.
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鈥淸The urns] were among items that were mostly spot-listed in a trawl around the country by the Department in the 70s, and a lot of items of this nature were listed as having historical or architectural importance,鈥� says Simon Stanion, planning partner at Shakespeare Martineau, the legal firm representing Dill.
The legal saga of the Idlicote urns
Five years later in 2014, when Stratford-on-Avon council became aware of the sale, Dill started receiving correspondence about possible enforcement action relating to the unauthorised sale of the urns. He attempted to secure retroactive listed building consent for the transaction, but this was denied, and in 2016, an enforcement notice was issued demanding that the urns be reinstated to Idlicote House.
This wasn鈥檛 a feasible option for Dill, as the urns had been taken from the UK after the sale, and they most likely remain in an unknown location somewhere on the Isle of Man. As such, Dill was left with the looming prospect of ruinous fines or even a criminal charge and prison sentence.
鈥淭he choice I faced in 2015 was to appeal against the enforcement notice or risk criminal prosecution,鈥� said Dill in a statement this year. 鈥淚 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.鈥�
Dill鈥檚 appeal was denied by a planning inspector in January 2017, who took the view that the urns鈥� status as 鈥榖uildings鈥� was self-evident by its listing, and therefore the case could not be reconsidered. This decision was backed up by subsequent challenges at the UK High Court and Court of Appeal.
鈥淭he High Court and the Court of Appeal both played a very straight bat on this,鈥� says Stanion. 鈥淭hey accepted the point the inspector had made, which was, 鈥楾hey鈥檙e on the list, stupid!鈥欌��
How do urns qualify as listed buildings?
Of course, the main thrust of Dill鈥檚 argument was born of simple common sense 鈥� how could a pair of urns, along with their piers and finials, be considered 鈥榖uildings鈥� to the extent they are included on the UK鈥檚 list of protected structures?
鈥淚 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,鈥� said Dill. 鈥淭hey 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 recognised their true provenance.鈥�
Part of Dill鈥檚 objection, once the case reached the Supreme Court, was that he鈥檇 had no opportunity to actually contest the urns鈥� status as 鈥榖uildings鈥� based on the case鈥檚 merits 鈥� through several round of appeals and challenges, he was simply told that the items鈥� inclusion on the list was what made them buildings.
鈥淚t鈥檚 not 鈥榯hey鈥檙e on the list, stupid鈥� 鈥� they鈥檙e not buildings and they鈥檝e got to be buildings on the list,鈥� says Stanion. 鈥淏ut Mr Dill, for five years, was denied the opportunity to actually make that point.鈥�
The finer details of listed building law have caused confusion for many years now. The UK Building Act 1984 has an extremely broad statutory definition of a building, which is described, 鈥渦nless the context otherwise requires鈥�, as any 鈥渟tructure or erection of whatever kind of nature (whether permanent or temporary)鈥�. This provides massive leeway for the kinds of listed building enforcement actions that Dill has experienced, without much recourse for contesting the logic of a listing.
鈥淭here was this assumption that if it was on the list, there was precious little you could about it and if you didn鈥檛 challenge the listing within weeks of that decision being made, you鈥檝e probably lost your right to challenge it,鈥� says Stanion.
Other point of contention around listed buildings include the legal grey areas surrounding curtilage structures, which exist on the enclosed land around a building and which, in the case of listed buildings, may or may not be listed themselves. Wading through curtilage listing guidance is 鈥渁 notoriously confusing issue in the planning and heritage world鈥�, according to a by planning and development consultancy Lichfields.
Supreme Court judgement urges a re-think
Having heard Dill鈥檚 case, on 20 May UK Supreme Court judge Lord Carnwath issued a judgement. The court found that whether or not a listed item is actually a building is a relevant consideration in listed building enforcement appeal, and the inspector in Dill鈥檚 case was wrong not to have done so.
鈥淚 think Lord Carnwath recognised the importance of providing some guidance as to how these questions should be dealt with,鈥� Stanion says. 鈥淗ow do you decide what is or isn鈥檛 a building, in the context of listed building law?鈥�
Making a decision on the merits of defining a 鈥榖uilding鈥� wasn鈥檛 in the court鈥檚 remit, but Lord Carwath鈥檚 judgement did note 鈥渁 disturbing lack of clarity about the criteria that has 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 鈥榗urtilage structures鈥� or as separate 鈥榖uildings鈥�.鈥�
The judgement also referred back to case law, most prominently Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions, a Court of Appeal case in 2000 that revolved around whether a large marquee erected every year by a hotel could be considered a 鈥榖uilding鈥�. The case gave rise to the so-called 鈥楽kerritts tests鈥� for defining a building, which broadly consist of a structures size, permanence and degree of physical annexation to the ground. While Lord Carnwath鈥檚 judgement didn鈥檛 actively suggest this three-point test should be adopted, the court did note that 鈥渋t is difficult to see any reason in principle why the same test should not apply鈥�.
鈥�Skerritts is a good illustration of the practical application of the relevant tests, and in particular the importance of the method of erection (鈥榓 sizable and protracted event鈥t is assembled on site, not delivered ready-made鈥�),鈥� the judgement found. 鈥淚n addition to the fact that installation occurred by erection, the degree of permanence of the location of the item on the site was significant.鈥�
Implications of the case for UK listed building law
The Supreme Court鈥檚 judgement slammed the brakes on the local planning authorities鈥� enforcement action against Dill, with Lord Carnwath questioning whether pursuing further action against the appellant would be 鈥渇air to Mr Dill or expedient in the public interest鈥�.
In June, the council withdrew its enforcement notice against Dill, removing the need for the appeal and drawing a line under what Stanion describes as Dill鈥檚 鈥渇ive-year struggle鈥�.
鈥淔air play to the council, they鈥檝e done the right thing; they鈥檝e withdrawn the notice and reflected on the judgement,鈥� says Stanion. 鈥淭hey don鈥檛 see the point any more than we do in arguing the toss over that at another appeal, and therefore Mr Dill no longer has to comply with an enforcement that required him to recover and restore to Idlicote House two urns when he has no idea where they are in the first place, and which have no historical or architectural connection with it.鈥�
The judgement could have significant implications for the process of listed building protection and enforcement in the future. Most obviously, those who are in a similar position to Dill in the future will be able to refer back to this judgement to ensure they鈥檙e free to argue a listed item鈥檚 status as a 鈥榖uilding鈥�.
鈥淚 would envisage there will be people who read this judgement and [wonder if it applies to them],鈥� Stanion says. 鈥淎 lot of these estates are having to sell off some of these items to survive 鈥� that鈥檚 what Mr Dill had to do. It could prompt a number of people who might be in a similar position to Mr Dill to go back to the Department and say, 鈥楬ang on a minute, I want this de-listed 鈥� it鈥檚 not a building.鈥� And the Department may have to apply its mind now, and revisit the whole question of the listing in the first place, on the basis that it can鈥檛 be listed if it isn鈥檛 a building.鈥�
More broadly, Stanion says the ruling may prompt the government to revisit and potentially reform its guidance on defining items that can qualify for listing in the eyes of the law. Previously listed items could be de-listed, and Dill may be the first in line to request the urns be removed from the list, given that they are now separated from the site where the original enforcement notice was issued, and outside of the UK鈥檚 jurisdiction entirely. In any case, Dill鈥檚 protracted experience through the courts may at least serve to provide a new avenue for appeal or defence for those caught in similar circumstances, and possibly an injection of contextual common sense into the way these cases are processed and the listing of items in the first place.
鈥淚t was incredible fortitude from Marcus Dill himself that he kept going; it was a serious financial consideration for him to have to do that,鈥� Stanion concludes. 鈥淏ut we all genuinely believed we were right about it, and we鈥檝e had support from people in the profession who have said well done, that this was the right result, that the Supreme Court have exercised common sense at last, where the courts had previously just applied a tunnel-vision, focused legalistic approach. The Supreme Court said hang on a minute 鈥� if it doesn鈥檛 feel right, it probably isn鈥檛 right. So from that point of view it鈥檚 a very satisfying judgement.鈥�
