Listed buildings are offered special protection for national, historic and architectural reasons. This can make any development which might affect them worthy of careful consideration. Two recent cases illustrate the difficulties involved.
When is a listed building not a listed building? When it's not a building in the first place!
So said the Supreme court in Dill v Secretary of State for Housing, Communities and Local Government on the 20th May 2020 much to the relief of Mr Dill!
Mr Dill had sold a pair of 18th century lead urns by a famous Flemish sculptor (John van Nost) from the garden of the home he'd inherited, to a private investor in 2009 for £55k. The local planning authority got wind in 2014 and took enforcement action requiring their reinstatement. Oops – double oops because the urns may now be abroad somewhere unknown.
It took Mr Dill from then till now, with appeals through planning and then the courts to eventually get a ruling that just because something had been listed as a listed building did not make it a building which could be listed; and that the property law concepts about size, permanence and degree of annexation (from the Skerritts of Nottingham case) were relevant criteria in considering what a building is in a historic and architectural listing sense. So unlike Henry Moore's statue of a reclining woman on a substantial plinth; and the Victorian 'life size' Dinosaurs at Crystal Palace, the 'small urns' on 2.74 metre moveable and sectioned plinths were not buildings that could be 'listed buildings'.
As an aside, nor were they on the facts of the case curtilage structures, being neither physically attached to the land nor directly related to the design of a listed building and its setting.
Is the statutory duty to have special regard to a listed building or its setting the trump card in assessing planning decisions? Not when there is no harm in the first place.
So said the Inner house of the Court of Session in June 2020 in a challenge to Argyll and Bute Council's grant of permission for a house to be built above the ridgeline but not the skyline, 1.5 kilometres south of an 18th century B listed home.
It is a matter of planning judgement what the setting is and how to assess it, in all the facts and circumstances including whether the proposals will harm the significance of the listing (see also the Catesby Estates case in 2019). So the fact that the planning decision maker's site visits did not include checking the panorama from the listed building itself was a matter of judgement for the decision maker in terms of assessing visual impact on the setting in this case.
These cases provide useful guidance and serve as a warning that advice should be sought about what listing means in any particular case.