In England, listed building control is complex. A failure to comply with listed building control is not time limited, which means risk of contravention can be inherited by a new owner. Complex listed building control rules also apply in Wales, Scotland and Northern Ireland.
In this case Dill v Secretary of State for Housing, Communities and Local Government, the good and marketable status of a property located in England could be severely affected.
When Marcus Dill, the owner of a Grade II listed building, sold two 18th century lead urns that stood on his property’s driveway, he could hardly have imagined it would lead to the local planning authority taking enforcement action to compel him to return the urns to his property, let alone a series of legal appeals, including to the Supreme Court.
The urns, which were attributed to John van Nost, a Flemish sculptor, arrived at Idlicot House near Stratford-upon-Avon (owned at the time by Mr Dill’s father) in 1973. They were added to the list of listed buildings in 1987 – under section 54 of the Town and Country Planning Act 1971. Though there was no record of the listing being served to Mr Dill, it was subsequently included in the register of local land charges.
However, when Mr Dill acquired the house (and the urns) in 1993, he was unaware that the urns were listed and he sold them at auction in 2009 for £55,000 to an anonymous buyer. When the district council informed him in 2015 that he required listed building consent to remove the urns from his property, his application for retrospective consent was refused and Mr Dill was issued with a listed building enforcement notice to reinstate the urns.
Mr Dill appealed to the Secretary of State on the grounds that the urns were not ‘buildings’ for the purposes of listed buildings legislation. However, in 2017 the appeals were dismissed by a planning inspector who took the view that the status of the items as ‘buildings’ was established by the listing. Mr Dill’s further appeals were rejected by the High Court and the Court of Appeal who deemed that the listing was conclusive of the items being ‘buildings’.
When Mr Dill took his appeal to the Supreme Court, the judges unanimously allowed a procedural part of his appeal. However, Mr Dill’s request for determination of the substantive question of whether, in the case of his property, the urns actually qualified as a building has been referred by the Supreme Court back to the planning inspector for redetermination.
In his summation, Lord Carnwath highlighted the ‘disturbing lack of clarity’ about the criteria used to determine whether free-standing items (such as the urns) qualify for listing protection – as ‘curtilage structures’ or as separate ‘buildings’. The implications for Mr Dill in this prolonged matter include the risk that he is responsible for the cost of (somehow) retrieving the urns as well as potential loss of value of his property if he could not recover the urns.
“With around 500,000 listed buildings in England, Mr Dill is unlikely to be the first, or indeed the last, to face potential liability for a breach of listed building control,” states Paul Denholm, senior underwriter: planning at Titlesolv.
A breach of listed building control never expires and may only become apparent long after acquisition of a listed building, with potentially significant financial losses, not only in restoring what has been removed but in the potential for loss of a property’s market value.
Mr Dill will be hoping that on redetermination, the planning inspector decides that the urns are not part of the listed building and therefore there is no breach. Unless and until such an outcome has been reached, the value of the property is in question and is a risk to the potential buyer.
Denholm continues: “The case Dill v Secretary of State for Housing, Communities and Local Government illustrates some of the complexities of listed building control in England, with the judgement stating that the case has revealed a disturbing lack of clarity about the criteria which have been adopted by the relevant authorities.
“As title and legal indemnity insurers, we offer insurance against potential breaches or risks that can come with listed buildings at time of purchase of UK property.”
