Following on from our earlier blog on listed properties, we are considering what is included when the Historic England listing for a property includes the curtilage of the property.
Due to the confusing nature of curtilage listings, in February 2018 Historic England published their guidance in ‘Listed Buildings and Curtilage, Advice Note 10’ to help understand this issue more clearly.
What is “curtilage”?
The Cambridge Dictionary defines curtilage as:
“the land surrounding a building that belongs to the owner of the building and for which he or she has responsibility”
As far as listed properties are concerned, Section 1(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (hereafter referred to as the Act) states that:
“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 [listed] building”
The difficulty comes in assessing whether a building or structure is in the curtilage of a listed building, especially in the case of sprawling country estates or farmsteads.
Section 55(2) of the Town and Country Planning Act 1990 defines land or building as within the curtilage should they be used “incidental to the enjoyment of the dwelling-house”. In the 1982 case of Debenhams plc. v Westminster CC this was interpreted as the building being ‘ancillary’ to the use of the main building.
What is the importance of curtilage listing?
When purchasing a listed property it is important to understand the extent of the curtilage as certain works to structures within it will require Listed Building Consent. Failure to obtain the necessary consent for works can result in owners facing enforcement action and criminal prosecution.
In Historic England’s advice note, they state that:
“not all buildings will have a curtilage. With those that do there will be cases where the extent of the curtilage will be clear (such as a garden boundary) but in others it may not be as clear each case will always be a question of fact and degree.”
As such, in determining the extent of the curtilage of a listed property, it will be necessary to refer to the examples provided by Historic England (page 4 to 15 of the advice note) and existing case law.
The Calderdale Tests
It is generally considered that the most important case on this subject is Attorney General ex rel Sutcliffe v Calderdale MBC from 1982, which involved the question of whether a row of terraced cottages associated with a listed mill could be considered to be within its curtilage. Lord Justice Stephenson established three tests to determine curtilage listing:
- Physical layout;
- Ownership, historic and current; and
- Use or function, historic and current.
By applying this test, it was adjudged that the terrace formed part of the mill’s curtilage as:
the terrace was connected to the mill by a corridor at one end and formed an enclosure with it;
historically and at the time of listing the mill and terrace had been in the same ownership; and
the terrace had been built to serve the mill
Crucially, Lord Justice Stephenson confirmed that curtilage boundaries should be determined on a case following the wording of the Act and the Calderdale tests. These tests are still used to define curtilage listing and are included in the Historic England Advice Note 10 on the subject.
These tests were applied in the 1999 case of Skerritts of Nottingham v Secretary of State for the Environment, Transport and the Regions, in which it was decided that:
“whether land was in the curtilage of a building was a matter of fact and degree. The curtilage need not be small, nor was the idea of smallness inherent in the term. The curtilage of a principal manor house, for example, was likely to include stables and other outbuildings”.
It is therefore important to consider the landscape character of the land in determining whether its use is incidental to the principal building, for example, accommodating domestic functions associated with a country house.
Obviously, not all listed properties are domestic and the most common examples where the issue of what is included in the curtilage, is in respect of historic farmsteads.
The 2008 case of Egerton v Taunton Deane (the ‘Jews Farm’ ruling) differentiated between the residential use of the farmhouse and the agricultural use of the farm buildings at the time of listing which, in Mr Justice Sullivan’s view, demonstrated that they were functionally separate, and one could not be considered ancillary to the other. In this case geographic layout was also a key factor in deciding the extent of the curtilage, as the boundary wall that separated the farm buildings from the farmhouse was considered to clearly define the domestic curtilage of the farmhouse.
The Jews Farm decision was supported in the 2014 Elms Farm appeal case, in which the Inspector concluded, after applying the Calderdale tests, that despite a barn being in the same ownership, physically close and historically associated to a listed farmhouse, it was not curtilage listed as it was in agricultural use while the farmhouse was residential. By this logic, it could be argued that listed farmhouses should always exclude detached farm buildings as their uses will always be separately residential and agricultural, giving rise to the necessity for farm buildings of historic interest to be listed in their own right.
In contrast, Historic England’s assessment framework on historic farmsteads notes that the historic form of farmsteads (their layout and interrelation of buildings) is an important component of their significance. The Jews Farm decision also appears to be at odds with the intention of curtilage protection in Calderdale, which was to bring protection to structures:
“which would not naturally or certainly be regarded as part of a building or features of it, which nevertheless are so closely related to it that they enhance it aesthetically and their removal would adversely affected.”
This raises the question as to whether a more character-based assessment of curtilage listing would be more appropriate in relation to historic farmsteads and country estates.
In his book Listed Buildings, Conservation Areas and Monuments, planning barrister Charles Mynor concludes that when it comes to determining whether permission is required for alterations to structures within the curtilage of a listed property that are not listed in their own right, one must consider their contribution to the special interest of the principal building, i.e. that unless works to a curtilage listed building would affect the special interest of the principal listed building then they should not need Listed Building Consent.
Since the Enterprise and Regulatory Reform Act was published in 2013, Historic England has had the power to explicitly identify which curtilage structures do not contribute to special interest and are therefore excluded from the listing of the principle building. When considering carrying out work to structures that falls within the curtilage of listed buildings, it is therefore advisable to seek confirmation from Historic England that the structures in question are excluded from the listing.
For advice on legal obligations and liabilities related to listed property and curtilage, contact Farleys’ residential property team today on 0845 287 0939 or contact us by email.