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When is an urn an urn and could it really become a listed building?

When is an urn and urn and could it really become a listed building?

Image: Protecting our lenders against the unknown

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 Mr 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 arrived at Idlicot House (owned at the time by Mr Dill’s father) in 1973 and were added to the list of listed buildings 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. 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 appeal was 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, Titlesolv.

Such breaches do not expire and they may appear long after an acquisition has been made, 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.

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.”

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