When is a Listed Building Not a Listed Building? When it’s an Urn

The five-year legal saga over the sale of two urns that were included on the UK’s protected buildings list has shed new light on the inconsistencies of listed building enforcement. Chris Lo hears from Shakespeare Martineau planning partner Simon Stanion, who represented the seller, about the case and its implications for the future

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’s 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’s 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.

“[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,” says Simon Stanion, planning partner at Shakespeare Martineau, the legal firm representing Dill.

Simon Stanion, head of planning at Shakespeare Martineau

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’t 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.

“ Common sense suggested that the piers and finials were not buildings and that errors had been made in their listings. 

“The choice I faced in 2015 was to appeal against the enforcement notice or risk criminal prosecution,” said Dill in a statement this year. “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.”

Dill’s appeal was denied by a planning inspector in January 2017, who took the view that the urns’ status as ‘buildings’ 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.

“The High Court and the Court of Appeal both played a very straight bat on this,” says Stanion. “They accepted the point the inspector had made, which was, ‘They’re on the list, stupid!’”

How do urns qualify as listed buildings?

Of course, the main thrust of Dill’s argument was born of simple common sense – how could a pair of urns, along with their piers and finials, be considered ‘buildings’ to the extent they are included on the UK’s list of protected structures?

“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,” said Dill. “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 recognised their true provenance.”

Part of Dill’s objection, once the case reached the Supreme Court, was that he’d had no opportunity to actually contest the urns’ status as ‘buildings’ based on the case’s merits – through several round of appeals and challenges, he was simply told that the items’ inclusion on the list was what made them buildings.

“ There was this assumption that if it was on the list, there was precious little you could about it. 

“It’s not ‘they’re on the list, stupid’ – they’re not buildings and they’ve got to be buildings on the list,” says Stanion. “But Mr Dill, for five years, was denied the opportunity to actually make that point.”

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, “unless the context otherwise requires”, as any “structure or erection of whatever kind of nature (whether permanent or temporary)”. 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.

“There was this assumption that if it was on the list, there was precious little you could about it and if you didn’t challenge the listing within weeks of that decision being made, you’ve probably lost your right to challenge it,” 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 “a notoriously confusing issue in the planning and heritage world”, according to a 2019 blog post by planning and development consultancy Lichfields.

Supreme Court judgement urges a re-think

Having heard Dill’s 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’s case was wrong not to have done so.

“I think Lord Carnwath recognised the importance of providing some guidance as to how these questions should be dealt with,” Stanion says. “How do you decide what is or isn’t a building, in the context of listed building law?”

Making a decision on the merits of defining a ‘building’ wasn’t in the court’s remit, but Lord Carwath’s judgement did note “a 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 ‘curtilage structures’ or as separate ‘buildings’.”

“ How do you decide what is or isn’t a building, in the context of listed building law? 

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 ‘building’. The case gave rise to the so-called ‘Skerritts tests’ for defining a building, which broadly consist of a structures size, permanence and degree of physical annexation to the ground. While Lord Carnwath’s judgement didn’t actively suggest this three-point test should be adopted, the court did note that “it is difficult to see any reason in principle why the same test should not apply”.

Skerritts is a good illustration of the practical application of the relevant tests, and in particular the importance of the method of erection (‘a sizable and protracted event…it is assembled on site, not delivered ready-made’),” the judgement found. “In addition to the fact that installation occurred by erection, the degree of permanence of the location of the item on the site was significant.”

Implications of the case for UK listed building law

The Supreme Court’s judgement slammed the brakes on the local planning authorities’ enforcement action against Dill, with Lord Carnwath questioning whether pursuing further action against the appellant would be “fair to Mr Dill or expedient in the public interest”.

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’s “five-year struggle”.

“Fair play to the council, they’ve done the right thing; they’ve withdrawn the notice and reflected on the judgement,” says Stanion. “They don’t 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.”

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’re free to argue a listed item’s status as a ‘building’.

“I would envisage there will be people who read this judgement and [wonder if it applies to them],” Stanion says. “A lot of these estates are having to sell off some of these items to survive – that’s 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, ‘Hang on a minute, I want this de-listed – it’s not a building.’ 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’t be listed if it isn’t a building.”

“ Fair play to the council, they’ve done the right thing; they’ve withdrawn the notice and reflected on the judgement. 

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’s jurisdiction entirely.

In any case, Dill’s 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.

“It was incredible fortitude from Marcus Dill himself that he kept going; it was a serious financial consideration for him to have to do that,” Stanion concludes.

“But we all genuinely believed we were right about it, and we’ve 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 – if it doesn’t feel right, it probably isn’t right. So from that point of view it’s a very satisfying judgement.”