When is a building not a building? 

When a property is listed, great care can sometimes be needed in relation to items that might never be called a ‘building’ in common parlance.

When is a ‘building’ not a building? This was the question considered recently by the Supreme Court in Dill v Secretary of State for Housing, Communities and Local Government. The dispute centred round two limestone piers with 18th century lead urns on top attributed to the Flemish sculptor John van Nost, which had been removed and sold at auction by Mr Dill in 2009.

When the ancestral family home was sold in 1939, the piers and urns moved with the family through three further properties before being installed at Idlicote House, a listed building, in 1973. In 1986 the piers and urns were made ‘listed buildings’ in their own right. In 2014 the Planning Authority initiated enforcement action as it is a criminal offence to carry out works to a listed building without listed building consent. 

In the Supreme Court Lord Carnwath held that whether something was a ‘building’ depended on a three-fold test of size, permanence and degree of physical attachment. Further, ‘the purpose of listed building control … is to identify and protect buildings of special architectural or historic interest… The special interest must be linked to [the object’s] status as a building. The historic interest must be found not merely in the object as such, but in its ‘erection in a particular place.’ 

The Supreme Court refused to say whether the pier and urns together were ‘buildings’ or not. The urns however could not be buildings if considered on their own. The matter was referred back to the Planning Inspectorate to consider Lord Carnwath’s judgment and decide the question. Since the urns had led a travelled life, it may be hard to say their historical or architectural interest is related to their ‘erection at a particular place’, even if the Planning Inspectorate decides they are ‘buildings’. Mr Dill must be hopeful he will escape prosecution.

Before this case it had been thought that a listed building designation was conclusive. While removing listed items without consent is not recommended, Dill enables landowners to argue, long after the original listing, that items listed in their own right should not have been listed as ‘buildings’ in the first place. But that is first aid after the event: it is never wise to take action (selling, gifting etc) in relation to any objects that may be listed without detailed research and legal advice.