The appeal in Dill v SoS for CLG and Stratford-on-Avon District Council (2018) EWCA Civ 2619 gave rise to issues relating to the scope of what is meant by “listed building” under the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Listed Buildings Act”); and, in the event of dispute, who determines whether something is a “listed building”. The issues arose in relation to two early 18th century limestone piers, each surmounted by a lead urn of the same era. In 1973, the items were moved to a Grade II listed building. In 1986, each of the items was separately Grade II listed. They were subsequently disposed of. The fact that they
had been removed came to the knowledge of the Second Defendant local planning authority. The Appellant made an application for retrospective listed building consent to remove the items. Both Historic England as statutory consultee and the Society for the Protection of Ancient Buildings made submissions on the application to the effect that the items were of special architectural and historic interest, and recommending enforcement action. The application for retrospective consent was refused. The Council issued a listed building enforcement notice requiring the reinstatement of the items at Idlicote House. The Appellant appealed to the SoS against the refusal of listed building consent and the enforcement notice on several grounds, including that the items were not “buildings” so that listed building consent was not required and no enforcement action could be taken in respect of them. The appeals were considered together by an Inspector appointed by the SoS, who refused them. The Inspector’s findings included that it was not open to him to go behind the fact that an item appears on the list as a listed building; and that, in considering whether the items were buildings for these purposes, concepts of property law were irrelevant.
The Appellant challenged those findings by way of an application to the High Court under Section 63 of the Listed Buildings Act so far as the listed buildings consent was concerned and by way of appeal to that Court under Section 65 of that Act in relation to the enforcement notice. The application and the appeal raised identical issues. Singh J (as he then was), refused both on all grounds.
Hickinbottom LJ, with whom McCombe and Coulson LJJ agreed, referred (paragraphs 10-15 inclusive) to the history of the legislative provisions now to be found in the Listed Buildings Act, to the current provision in Section 1 of that Act, to the interpretation provision (Section 91), Section 7, which “is at the heart of the scheme for protection of listed buildings”, and subsequent provisions. Hickinbottom LJ said:-
“33. In my view, the wording of the relevant provisions in the Listed Buildings Act make clear that it was the intention of the statute that, for the purposes of applications for listed building consent and enforcement (and appeals from the same), being on the list is determinative of the status of the subject matter as a listed building, the protection given by the Act deriving from that status.
34. That is clear from section 1(5) of the Listed Buildings Act … which defines “listed building” as “a building which is for the time being included in a list compiled or approved by the Secretary of State…” (emphasis added). It is particularly noteworthy that the power of the Secretary of State (and an inspector in his shoes) on an appeal to de-list does not allow for the quashing of a listing, only for forward-looking de-listing. But the intention of Parliament is also revealed by, for example, the fact that the grounds of appeal for a section 20 appeal set out in section 21(3) and for a section 38 appeal set out in section 39(1) … expressly enable an appellant to raise issues concerning the merits of listing, but not the validity of listing. … if Parliament had intended an appellant to be able to challenge the validity of the listing it could and would have made that clear.”
“36. In my view, the construction I favour is clear from the wording of the relevant current provisions; but it is supported by the provenance of those provisions. …
37. Reflecting the apparent purpose of the Listed Buildings Act and its predecessors – to provide a clear and straightforward scheme for the protection for buildings which the state considers worthy of protection on architectural or historic grounds, and which enables members of the public to inspect quickly and easily a published list of protected buildings and regulate their affairs accordingly – the courts have consistently acknowledged that the intention of the relevant provisions is that being on the list is determinative of the protected status for the purposes of the requirement for listed building consent and enforcement proceedings. …”
“42. . … Boddington and Winder concerned very different statutory schemes from this. Both of those schemes were of a general character directed at the world at large (Boddington) or a significant group of people notably council tenants in a particular area (Winder). The Listed Buildings Act involves the compilation and publication of a list which identifies specific properties and notifies the owner of each such property of the listing, and the status of a building as a listed (and, thus, protected) building is readily ascertainable at any time. It is therefore not of a general character, but directed and focused. It operates in an area in which, so far as the buildings which are the subject of protection are concerned, clarity and certainty have a high premium. The rule of law is well acknowledged by the fact that listing can be the subject of challenge by way of judicial review, and (importantly) any interested party can apply to have a building de-listed and a refusal of such an application itself may be the subject of a challenge by way of judicial review. Such a person therefore has a “fair opportunity to challenge these measures and to vindicate their rights in court proceedings”.
43.Therefore, in my view, Singh J’s view (in [52]-[56] of his judgment) that the authorities of Boddington and Winder are of no application in this case was correct. Indeed, it is noteworthy that, at page 160D-H of Boddington, Lord Irvine used R v Wicks [1998] 92 as an example of a case in which it was held that the validity of an administrative act that triggered consequences for the criminal law was not capable of being challenged in criminal proceedings (but only by way of judicial review or appeal). Wicks concerned a prosecution for a failure to comply with an enforcement notice for breach of planning control, in which it was held that the Town and Country Planning Acts comprised “an elaborate code” and that on a proper construction of the relevant provisions all that was required to be proved in the criminal proceedings was that the enforcement notice issued by the local planning authority was formally valid. Although, of course, the provisions relating to listed building enforcement notices and planning breach enforcement notices are not identical, it seems to me that Wicks is a case closer to the case before us than Boddington and Winder.”