It is not uncommon for owners of historic properties, notoriously expensive to maintain, to sell items from the estate to raise funds.  The impact of Covid related restrictions over the last year on buildings normally open to the public will only exacerbate the pressure.  However, prior to any sale, owners must take care to ensure items can be freely sold.

The issue came to the fore last year when a case, Dill v Secretary of State for Housing, Communities and Local Government and another [2020] UKSC concerned the sale of urns from a property and subsequent enforcement action by the local authority. 

In this case, the unfortunate Mr Dill sold two early eighteenth-century urns from the grounds of Idlicote House at auction in 2009.   Idlicote House was designated a Grade II listed building in 1966.  The urns were listed in their own right over twenty years later, without consultation with the owner and with an unexplained delay in noting the listing on the local land charges register.

The local authority became aware of the removal of the urns in 2015.  Mr Dill’s application for retrospective listed building consent was refused and the local authority issued a listed building enforcement notice requiring reinstatement. Mr Dill appealed on several grounds, including the fact that the urns were not buildings and, therefore, could not be classified as listed buildings.

At the appeal the Planning Inspector felt he could not “go behind” the list and consider the validity of the urns’ designation as listed buildings.  That decision was upheld in the High Court and Court of Appeal.  The case reached the Supreme Court where it was held, conversely, that inclusion on the statutory list did not preclude the Planning Inspector from deciding whether the urns were buildings.  The court found it would not be fair to prevent consideration of such an issue when a breach of listed building control is a criminal offence.  The enforcement notice appeal is to be redetermined by the Planning Inspectorate.  As to whether the urns are buildings or not, the court left the Planning Inspector appointed to deal with the redetermination of the appeal to decide, but confirmed the approach to be taken in making the decision.  

The case confirms that Planning Inspectors can “go behind” a listing, paving the way for future arguments that a designated listed building is not a building and consequently not a listed building.  On a practical level for the owners of historic buildings, the plight of Mr Dill highlights the need for great care in confirming the status of items prior to removal.