Can a lead urn be a “building”? And if so, can it be listed? Which sound like fairly daft questions but, strange though it may seem, they were the nub of the issue in Dill v Secretary of State for Housing, Communities and Local Government & Anor [2020] UKSC 20.

The historic garden at Wrest Park in Bedfordshire had contained a pair of early 18th-century lead urns on limestone pedestals which had been moved several times since 1939. In 1973, Major Dill (the appellant’s father) moved them to the garden of Idlicote House and in 1986 they were added to the list of listed buildings under s.54 of the Town and Country Planning Act 1971. In 1993, Mr Dill acquired the house and the urns and, unaware of the urns’ presence on the list, sold them at auction in 2009.

In 2015, Stratford-on-Avon District Council discovered that the urns had been sold and told him that he should have sought listed building consent to remove them. When he applied for retrospective consent in February 2016 it was refused, and the Council issued a listed building enforcement notice requiring their reinstatement.

Mr Dill appealed to the Secretary of State for Housing, Communities and Local Government on the ground that the urns were not “buildings” for the purposes of the Planning (Listed Buildings and Conservation Areas) Act 1990, but a planning inspector dismissed that appeal, and his subsequent appeals to the courts were unsuccessful.

Giving the unanimous judgment of the Supreme Court, Lord Carnwath said that

“A listed building means ‘a building which is … included in [the] list …’. Thus there are 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” [24].

Further, the case

“revealed 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. Even now, in spite of the issue having been raised by Mr Dill in 2015, and after a planning appeal and three court hearings, he has had no official explanation of the criteria by which it was determined that these items qualified as ‘buildings’” [28].

Moreover,

“If they had been resting on the ground, rather than a plinth, I doubt if it would have occurred to anyone that they might qualify as buildings’ [58].

The case revealed a lack of clarity about the criteria applicable on determining whether a free-standing item should be regarded as qualifying for listing protection. Reference was made to the judgment of the Court of Appeal in Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and Regions (No 2) [2000] JPL 1025, which laid down a threefold test about whether such an item constituted a building, involving “considering size, permanence and the degree of physical attachment” [46].

The Court remitted the enforcement appeal to the Secretary of State for redetermination [26]; however,

“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” [60].

Comment

If by now you are asking yourself So what has this to do with religion?, that was precisely my own reaction when I first looked at the UKSC’s case summary. From the point of view of the Church of England and the Church in Wales, the issue of moveables such as lead urns is in any case subject to the faculty jurisdiction – and is covered whether the church building is listed or not. For the other denominations currently exempted from listed building controls, however, the judgment in Dill might have greater relevance.

A Roman Catholic colleague e-mailed me to say that he had been involved in a similar case dealt with by the Church’s Historic Churches Committee which had involved the removal and sale of a statue from a church. The statue had come into the church’s possession in about 1920 and had been placed in various locations over the years, and the applicant church wished to sell it in order to stabilise the very difficult financial position of its building as a whole.

The sale was controversial, and the applicant hoped that a positive decision from the HCC would help to support the sale. In the event, the sale did not go ahead, but my correspondent suggests that the HCC should not have considered the matter in the first place, on the grounds that it did not relate to a listed building. He suggests that Dill is a useful reminder to exempt denominations to ensure that their decisions relate solely to the architectural merit of listed buildings and not to other matters that may be important and controversial – but which do not form part of their remit.