The IAL has been closely following the case of Mr Dill and the two lead urns in its passage through the courts over the past two years. Mr Dill sold the urns in 2009 without knowing that they were individually listed and therefore their removal required listed building consent. Having lost at the High Court and Court of Appeal, Mr Dill put his case to the Supreme Court on 10 March 2020. On 20 May, a unanimous verdict was handed down allowing the appeal, Lord Carnwath giving the Court’s judgment.
On learning that the urns had been removed in 2015, the local planning authority requested that Mr Dill apply for retrospective listed building consent. This was denied and an enforcement notice duly issued, demanding the return of the urns. Mr Dill subsequently appealed this, arguing that the urns could not be classed as ‘buildings’ and therefore were not subject to listed building consent. The inspector appointed by the Secretary of State to review this appeal determined that the status of the items as buildings could not be reviewed on appeal. Mr Dill challenged this decision before the courts, however both the High Court and Court of Appeal dismissed the appeal.
The submissions to the Supreme Court consisted of two questions:
- Is designation as a listed building conclusive?
- Were the urns buildings and what criteria are relevant in determining this?
The judgment followed the case of Boddington v. British Transport Police  2 AC 143, in stating that the rule of law allows individuals affected by legal measures to have a fair opportunity to challenge these measures. Therefore, one is allowed to raise the question of whether an item is a building following the issuing of a listed building enforcement notice or prosecution for undertaking unlawful works to a listed building. As such, the inspector could have decided on the appeal of the enforcement notice whether the urns were buildings for the purposes of the Planning (Listed Buildings and Conservation Areas) Act 1990.
To establish whether the urns were buildings, and more broadly to explore the question of what is a building under the Act, a close look at the section defining a building was required.
Section 1(5) states:
In this Act “listed building” means a building which is for the time being included in a list compiled or approved by the Secretary of State under this section; and for the purposes of this Act—
(a) any object or structure fixed to the building;
(b) any object or structure within the curtilage of the building which, although not fixed to the building, forms part of the land and has done so since before 1st July 1948
shall…be treated as part of the building.
For the definition under (a) and (b) above (referred to by the Court as the ‘extended’ definition), Lord Carnwath held that a two-part test applied, considering the method and degree of annexation followed by the object and purpose of annexation. This is the well-known property law test used to determine chattels from fixtures.
However, the urns had been listed in their own right, so it was necessary also to determine what is meant by a ‘building’ in accordance with the first part of the section (i.e.that a ‘listed building’ means “a building which is for the time being included in a list…”). It was held that this is decided by looking at the three-fold test developed from planning case law, known as the Skerritts test (Skerritts of Nottingham Ltd v. Secretary of State for the Environment, Transport and the Regions (No 2)  JPL 1025). This test looks at the size, permanence and degree of physical attachment.
The purpose of listing buildings is to identify and protect buildings of special historic and architectural interest, however as Lord Carnwath explained “the special interest must be linked to its status as a building” (paragraph 54). Prime examples of these are the individual listings of gateposts, lamps and other objects comprising street furniture.
While the appeal was allowed, the Supreme Court did not give an opinion on whether or not the urns should be considered buildings for the purposes of this case. The appeal of the enforcement planning notice was sent back for reconsideration by the Secretary of State. Nonetheless, Lord Carnwath stated obiter that the local planning authority’s pursuance of the enforcement notice may be ill advised given the five years Mr Dill has been asking for an explanation as to how the local planning authority came to the conclusion that the urns were buildings. Additionally, there is also the practical consideration of bringing the urns back 11 years after they had been sold to a private individual and given that they may be located abroad.
What are the implications of the Supreme Court’s decision for the art market and the protection of cultural heritage? The case highlights the importance for auction houses and dealers to check listings earlier rather than later in the sale process as part of their due diligence to avoid the problems encountered by Mr Dill, if there is any possibility that an object proposed for sale could be listed. Not only might a listing have an impact on the ability to sell per se, it could also determine a seller’s ability to export the relevant work (since the listing would be taken into account in any assessment of the work in an application for an export licence). At the time the urns were sold in 2009, one had to check the records of the Land Registry or contact the Local Planning Authority to establish whether an item may be listed. However, it is now possible to view all listings through Historic England’s website. Additionally, an informal consultation with the local planning authority is advisable before embarking on the sale of any objects from a listed property.
If a listing is revealed, all is not necessarily lost. A number of options might be available to an unsuspecting seller, including applying to Historic England to de-list the work or applying for listed building consent to remove it (then potentially appealing any refusal). A failure to address the issue, though, could have serious consequences. Perhaps most notably, an individual dishonestly selling a ‘tainted’ cultural object (which could include a listed ‘building’ removed without consent) could find himself charged with an offence under the Dealing in Cultural Objects (Offences) Act 2003. Another disagreeable consequence could be the imposition of a fine under section 9 Planning (Listed Buildings and Conservation Areas) Act 1990. It is hoped that the issues addressed in this case, and the greater clarity afforded to the definition of a ‘building’ for listing purposes will focus the minds of those in the art market, and more broadly, on the steps to be taken in circumstances like those faced by Mr Dill when he contemplated the sale of his urns over ten years ago.