Curtilage division needs CA &/or LB consent?

[Hedge]

Hi this is my first time on a forum so please bear with me if I make any errors.
I am in the process of purchasing a grade II listed building which is also in a conservation area.
The background to my problem is: The current property is actually being split and sold in 2 lots. The current property consists of a house, barns and a bungalow. There is a garden to the west and another to the east of the house and barns and the bungalow is in the garden to the east. The Listed curtilage includes the house, barns and west garden. Lot 2 is the bungalow and half the barns (listed). Lot 1 (which I am buying) is the house, half the barns and half the west garden all of which are listed. The listed barns are being split between lot 1 and 2. The division of the property will halve the west garden which is large and the remaining garden for each lot remains of a reasonable size.
The difficulty I currently have is that the solicitors are going round in circles and getting nowhere in completing the sale due to the question: Is any consent required in order to comply with conservation or Listed building requirements when selling the plot as two lots. Specifically my solicitor seams to be concerned about splitting the west garden as it is within the listed curtilage. The seller’s solicitor says it is not required. HELP

 

[skier-hughes]

Have either of them asked the conservation officer (CO) who covers the area in which the house is?
That would be my first port of call.

It could depend on what you wish to split it with, leylandi, 6' shiplap fencing, nice mixed variety hedging, walling to match the buildings........

 

[Hedge]

My solicitor has made a general enquiry to the local CO and got the response: ‘it is "highly likely" that consent would be required for the sub-division of a listed property.’
I am told by a number of sources locally that the CO is rubbish with the ‘The answer is No, now what was the question’ attitude although I do not have first hand experience and hope it not to be the case.
The garden has been split with a 4ft high fence with 2ft of trellis above that (the fence is not fixed to the building in any way) the idea is to have a border along the fence and put various plants along.

 

[Flyfisher]

From my wholly amateur perspective, I cannot see why the purely legal process of splitting one property title into three separate ones should require any consent from anyone, other than the original title owners, because it would have no material impact on the physical properties or their surroundings, i.e. their curtilage.

However, as soon as the new title owners wish to install new fences, new paths, new driveways etc etc, then that would have a physical impact on the listed property and its curtilage and would therefore be subject to LBC.

I realise that, in practice, these two issues would go hand-in-hand but perhaps that's the root of the confusion?

Anyway, from your post, it seems as though fences have already been erected within the curtilage of a listed property, in which case it might be prudent for your solicitor to seek assurances from the vendor that this (and any other alteration) has been granted LBC. As I understand things, it's the current owner of a listed property that's responsible for any enforcement notices that may be served by the CO, so if you buy you become responsible, regardless of whether you made the changes yourself.

 

[Gareth Hughes]

My solicitor has made a general enquiry to the local CO and got the response: ‘it is "highly likely" that consent would be required for the sub-division of a listed property.’
I am told by a number of sources locally that the CO is rubbish with the ‘The answer is No, now what was the question’ attitude although I do not have first hand experience and hope it not to be the case.
The garden has been split with a 4ft high fence with 2ft of trellis above that (the fence is not fixed to the building in any way) the idea is to have a border along the fence and put various plants along.

Any form of enclosure (such as the fence you mention) within the curtilage of a listed building requires planning permission (not [necessarily] Listed Building Consent), as the permitted development rights which would normally allow these (with an unlisted building) do not apply to LBs.
That said, there is nothing planning or LB law can do to prevent the sale of a site in more than one lot - though the individual lots thus created may not carry with them any permission to be used for any particular purpose (eg, as a separate dwelling)

 

[Lime]

I think that the vendor can sell listed buildings in any sort of subdivision they may wish if no physical split/separation has taken place other than when listed.
It is the purchasers that need to be careful because they may end up buying something that cannot be lived in, at least in the way they expected.
Buying without having all these details, such as fencing, access and permissions, is very risky.

 

[DaveBrigg]

Presumably there is no connecting doorway between the barns being split, which would need to be sealed?
Ours is a listed building where the vendor kept a chunk of the original garden, which he has fenced off, and planted a hedge between. There was no problem legally with the plot being sub-divided, but Gareth, am I to understand that the vendor should have asked for planning permission for his wooden fence and hedge?

 

[Gareth Hughes]

Presumably there is no connecting doorway between the barns being split, which would need to be sealed?
Ours is a listed building where the vendor kept a chunk of the original garden, which he has fenced off, and planted a hedge between. There was no problem legally with the plot being sub-divided, but Gareth, am I to understand that the vendor should have asked for planning permission for his wooden fence and hedge?

The hedge is a grey area as landscaping (unless it has been conditioned as part of a permission) usually isn't covered by planning rules, however the fence, if it is within the curtilage of the listed building, would need planning permision.

 

[DaveBrigg]

Thanks Gareth. That reopens the hazy debate about how far a curtilage extends, and gives food for thought should there be another application to build on the land. At the moment the fence is helping to keep his nettles out of our veg patch, so I'll keep quiet for now.

 

[Pford75]

I hadn't appreciated that Gareth - Is there a reference you can point us to?

The Norwich City Council website seems to indicate that there are restrictions on permitted development for Listed Buildings, but not that there is no permitted development.

In fact, the blurb mentions the specific requirement for LBC for most things normally covered under permitted development, but when it comes to 'gates, fences and walls' it doesn't mention the need for LBC

"A fence 1 metre high or less beside a highway - road, footpath or footpath cycleway - will not normally need planning permission. Other fences can be up to 2 metres high without needing planning permission."

I'm not disputing your expertise on this subject...just pointing out that the publically available info paints a confusing picture.

Does this mean that in theory, all solicitors should be checking for LBC for fences? Secondly, does this apply to stock fences used for the enclosure of livestock??

 

[Pford75]

http://www.norwich.gov.uk/webapps/atoz/service_page.asp?id=1211

Sorry...should have included this link to the Norwich CC guidance.

 

[Gareth Hughes]

I hadn't appreciated that Gareth - Is there a reference you can point us to?

The Norwich City Council website seems to indicate that there are restrictions on permitted development for Listed Buildings, but not that there is no permitted development.

In fact, the blurb mentions the specific requirement for LBC for most things normally covered under permitted development, but when it comes to 'gates, fences and walls' it doesn't mention the need for LBC

"A fence 1 metre high or less beside a highway - road, footpath or footpath cycleway - will not normally need planning permission. Other fences can be up to 2 metres high without needing planning permission."

I'm not disputing your expertise on this subject...just pointing out that the publically available info paints a confusing picture.

Does this mean that in theory, all solicitors should be checking for LBC for fences? Secondly, does this apply to stock fences used for the enclosure of livestock??

any means of enclosure - and the solicitors should be checking for Planning Permission, not LBC. (And I have nothing whatever to do with the content of Norwich City Council's website, I just hope ours is right... )

Statutory Instruments

2008 No. 2362
Town And Country Planning, England

The Town and Country Planning (General Permitted Development) (Amendment) (No. 2) (England) Order 2008

...(snippity doo dah)...

Class E

Permitted development
E. The provision within the curtilage of the dwellinghouse of—

(a) any building or enclosure, swimming or other pool required for a purpose incidental to the enjoyment of the dwellinghouse as such, or the maintenance, improvement or other alteration of such a building or enclosure; or
(b) a container used for domestic heating purposes for the storage of oil or liquid petroleum gas.

...(snip)...

Development not permitted

E.1 Development is not permitted by Class E if—

(more snippery)

(f) the building, enclosure, pool or container would be situated within the curtilage of a listed building;...

And from the 1995 Order (which remains current except where amended by the 2008 amendment):

PART 2
MINOR OPERATIONS

Class A
Permitted development
A. The erection, construction, maintenance, improvement or alteration of a gate, fence, wall or other means of enclosure.

Development not permitted
A.1 Development is not permitted by Class A if—

(d) it would involve development within the curtilage of, or to a gate, fence, wall or other means of enclosure surrounding, a listed building.

 

[Pford75]

Thanks Gareth - that's really helpful......and I wasn't blaming you for NCC's website.

Whilst I generally agree with a tightening of planning controls around Listed Buildings, it seems to me that there is a big different between a solid brick wall and a flimsy chicken-wire fence.....but both would require PP under these guidelines if I have understood correctly?

For example, one of our neighbours in the village has a small number of sheep (which they sell and can't therefore be considered 'pets' or incidental to the enjoyment of the property). They have large grounds in their listed building and currently contain the sheep in a smaller 'pen' which they move around the garden as the grass is eaten. This is a very portable electric fence which can be moved from one side of the garden to another......but in theory, wouldn't they now require PP each time they wished to move it??

 

[Gareth Hughes]

I suspect the degree of impermanance inherent in the type of fence you describe might get it through the rules, though grey areas like that may well be up to the interpretation of the individual planning authority.

I'm not sure how many sheep you need to be farming commercially in a residential garden before that also becomes a change of use requiring planning permission...

 

[Pford75]

Thanks - I think they only have 4/5....but appreciate you making us aware of the potential implications of the PD changes.