Curtilage

[devonjem]

Having done some research on the meaning of curtilage of a listed building, I can say it is a nightmare to work out where the curtilage ends.

Imagine a grand manor house. Part of the gardens were sold off in the 60s, and a house built on the sold-off bit (lets call it "Plot X"). The manor house is then listed in the 80s. The owners of Plot X build a huge summerhouse in 2008 in plain view of the manor house.

Question - are there likely to be any controls on the erection of the summerhouse? My thoughts are that the house built on Plot X is not listed, so the owner can erect a summerhouse under permitted development rights. The setting of the listed building is only considered in the context of an application for planning permission - and as the summerhouse needs no pp, then the setting of the listed building is irrelevant.

However there is one twist. There is no permitted development rights in regard to buildings over 10 cubic metres within land that forms the curtilage of a listed building. And what constitutes curtilage will depend on a number of factors, including physical layout of the land, past/present ownership and past/present use. It is also clear that land in the ownership of a third party can fall within the curtilage of a listed building owned by someone else. So, part or all of Plot X might be within the curtilage of the manor house and its listed boundary walls, as Plot X once formed part of the gardens and remains part of the setting of the manor house.

A further twist - in a far corner of Plot X, there is a structure listed in its own right. That structure is several hundred metres away, but is in the same ownership as Plot X, and the summerhouse is visible from the structure, and arguably the summerhouse lies witin the curtilage of that structure.

Any comments on the above would be very welcome.

thanks

 

[middi]

Too many "plots and twists" here, a job for Agatha christie to solve this problem :wink:. ( too many possible " not guilty my lord" )

I wonder what your local CO would make of it, I would ask him.

 

[Flyfisher]

I'm no expert but I find it hard to believe that the curtilage of a listed property can extend outside of the legal property itself. But even if it does and even if plot X does fall within the curtilage of the manor house on the basis of previous ownership, that would have been presumably taken into account by the planning authorities when approving the building of new houses on that land - in which case why would they now have a problem with a summerhouse?

The previous owner of our house sold off various parcels of land for development, some before its 1988 listing and some after. The conveyances and deeds of the houses subsequently built contain various conditions for various things but there are no apparent restrictions specifically related to the previous curtilage of our house.

Check your deeds for any restrictions. If there is nothing to restrict what you want to do then go ahead in line with any planning regulations. Your property is not listed so I see no reason to call in the conservation officer.

 

[Pford75]

As you point out....if the summerhouse can be constructed under permitted development rights, with no requirement for planning and if the property/land in which the summerhouse is being constructed is not listed....then I can't see on what basis anyone could object.

If you are seeking to construct and are satisified that

1. There is no Conservation area
2. This really does fall within permitted development
3. There is no listing on the property/grounds where the summerhouse will be built
4. There are no restrictive covenants in your deeds affecting this

I would be inclined to get everything ready and then move swiftly on a Saturday...in all likelihood, it will be finished before anyone from the council even hears a complaint. I would point out that (2) above is not always straightforward and it would always be better to construct with the support of your neighbours...but without that, it might be worth a quick chat with a planning consultant to ensure that you have everything nailed down

 

[GK]

Question ... does plot X form part of the land associated with the principal building at the time of listing?

If so, plot X is within the curtilage and therefore considered part of the principal listing.

It follows that house x is within the curtilage and the summerhouse would be subject to lbc.

The listing description might give some indication as to the likely answer for the Question. This is the key issue for your conundrum. Plot / House X existed when the manor house was listed. It existed when the boundary wall was listed. If it's within the boundary wall, seems like there's a good case for saying it's listed, or as good as since it's in the curtilage.

Then there's the listed structure, which you say has sight of the summerhouse ... a completely separate argument for saying house x is curtilage listed

 

[Flyfisher]

Even if plot X was within the curtilage of the listed property at the time of listing, surely it has been effectively agreed - through all the appropriate planning and conservation authorities - to remove plot X from the curtilage for the purpose of building a new house on plot X?

So, given all this, why would anyone object to a summer house?

We have maps showing that the land once owned as part of our house covered well over half our village. Surely all the houses that have now been built on that land can't be subject to LBC?

 

[GK]

.....Part of the gardens were sold off in the 60s, and a house built on the sold-off bit (lets call it "Plot X"). The manor house is then listed in the 80s..... thanks

I took this to mean, soon after plot x was sold, house x was built, then much later, the boundary wall was listed. devonjem can confirm or deny this.

If this is correct then house X was built on plot X in the grounds of a non-listed property.

Then the manor house was listed, including, let's speculate, its former kitchen garden which has a big boundary wall. Potentially, whatever was contained within that boundary wall becomes curtilage listed.

.....part or all of Plot X might be within the curtilage of the manor house and its listed boundary walls, as Plot X once formed part of the gardens and remains part of the setting of the manor house...... thanks

I haven't actually said much that devonjem doesn't already know

 

[Flyfisher]

I see what you mean. But surely if plot x was sold off before the main house was listed then it would not form part of the main house property when it was later listed? A former boundary wall might be listed in it's own right but does that make anything between that wall and the main house curtilage listed? If that was the case then I'd imagine than new village houses up and down the land could be curtilage-listed on the basis of being built on land once belonging to the local manor house.

Also, even if the main house listing DID affect the house on plot x, surely the owners would have been informed of their new status and restrictions - in much the same way as the owners of a newly listed property are.

 

[Pford75]

Also, even if the main house listing DID affect the house on plot x, surely the owners would have been informed of their new status and restrictions - in much the same way as the owners of a newly listed property are

I think this is a key point. If the owners of the new house have nothing in their deeds, local searches etc. at time of purchase, then it would be unreasonable to expect them to realise that they are listed.

On the other argument, I agree with Flyfisher....our house also once owned most of the village. When we purchased the house, the vendors retained a plot of land (which once formed part of the listed grounds) and subsequently sold this off to a developer (who is currently building....or not building given the state of the market, some 'executive' boxes)...local planning didn't bat an eyelid about this once forming part of a Listed building (although I wish they had)

 

[Nemesis]

Ignorance is no defence - and curtilage listing doesn't mean the land.

Section 1(5)(b) of the Listed Buildings Act provides that, for the purposes of that Act, 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 1 July 1948, shall be treated
as part of the building.

 

[Pford75]

within the curtilage of the building

This is the point being raised....to what extent can this be within the curtilage if it was sold off as a separate plot/building some time ago (not clear if this was before or after listing)?

I can only speak from personal experience....and the council did not consider the land which was once part of our house (sold by the previous owner to developers) to fall within the curtilage of a listed building

Ignorance can in fact be a defence if it can be proven that the local authority failed in their statutory duty to inform the householder of the listing during their local searches at time of purchase. My father is a commercial conveyancer and recently won a case related to a failure by a local authority to correctly advise a purchaser that their house fell within a Conservation Area. The critical issue is whether the owner has contacted the council for status enquiry and been advised (ie. did they do a local search?)

 

[Nemesis]

I would suggest that anyone wanting to know if any works planned are deemed to affect a listed building, then they take it up with the local authority.

There is much case law regarding what is and is not deemed to be a curtilage listed building or structure. Only the courts can, ultimately, decide.

Hardly worth the risk of enforcement action.

A conservation area isn't a listed building. I would suggest any conveyancing solicitor who doesn't find out if a property is listed and advise a client accordingly would be negligent.

 

[Pford75]

I would suggest that anyone wanting to know if any works planned are deemed to affect a listed building, then they take it up with the local authority.

Agree entirely.

I would suggest any conveyancing solicitor who doesn't find out if a property is listed and advise a client accordingly would be negligent

But what if the solicitor contacts the local authority and is formally advised that the property is not subject to any listing restrictions (this does happen)....appreciated that a Cons.area is not the same, but the principle remains...that a house purchaser is entitled to expect the formal response to local authority 'searches' within the conveyance process to be accurate. Any 'loss' as a result of the LA's negligence would be claimable (not from the solicitor, who has exercised their duty of care) but from the council.

 

[Nemesis]

Then see if you can find a precedent in case law - but alteration of a listed property without the appropriate consents is a criminal offence, and ignorance of the listing is not, in law, currently a defence.

Lists of listed buildings are available from a variety of sources. Ultimately, the DCMS can be asked.

 

[Gareth Hughes]

In this case, it sounds as though the summerhouse is not within the curtilage of the LB as the land on which the summerhouse stands became a separate legal entity before the manor house was listed (curtilage at the date of listing is the key consideration from which all else flows).

Except in specific and rare circumstances (for example where the space it enclosed had remained in one ownership and largely undeveloped), I would find it difficult to argue that the listed boundary wall has a curtilage as it has been established that a "curtilage structure" (ie one treated as being listed by virtue of being within the curtilage of a listed building) should be subservient to it - and I can't see what, in this case, is "subservient" to the wall. (for example, a listed barn would not make its farmhouse curtilage listed [though an associated cart shed might be], but a listed farmhouse probably would make its barns curtilage listed). Presumably the separately listed building on plot X is a minor structure and its distance from the new sumerhouse would also be a factor in determining whether the new building had any effect on its setting.

So in this case, it's Permitted Development, and as such there's no need for a plannigng application, and therefore no legal grounds to consider its effect on the setting of the principal LB (ie the manor house). But ask two lawyers, and you'll get five opinions.

 

[Gareth Hughes]

Also, even if the main house listing DID affect the house on plot x, surely the owners would have been informed of their new status and restrictions - in much the same way as the owners of a newly listed property are.

I really wouldn't bank on it (we get three or four cases a year, especially with the 1950s listings that no-one's kept an eye on since)

 

[Gareth Hughes]

within the curtilage of the building

This is the point being raised....to what extent can this be within the curtilage if it was sold off as a separate plot/building some time ago (not clear if this was before or after listing)?

I can only speak from personal experience....and the council did not consider the land which was once part of our house (sold by the previous owner to developers) to fall within the curtilage of a listed building

Ignorance can in fact be a defence if it can be proven that the local authority failed in their statutory duty to inform the householder of the listing during their local searches at time of purchase. My father is a commercial conveyancer and recently won a case related to a failure by a local authority to correctly advise a purchaser that their house fell within a Conservation Area. The critical issue is whether the owner has contacted the council for status enquiry and been advised (ie. did they do a local search?)

No, the law relating to listed buildings makes unauthorised alterations a strict liability offence - ignorance is not a defence - it is for the person carrying out the works to find out whether the property is listed, not for the local authority to tell them. They might, subsequently, have a case against their solicitor for failing to conduct their search properly. It's a different matter if they have been authoritatively told that a property is NOT listed, but not being told that it IS isn't the same thing.

 

[middi]

.........NOT GUILTY MY LORD...... :wink: ( I know so, because I have lots of money to spend on solicitors)

 

[Stephen]

Gareth

Whilst I agree that it s for an owner (prospective owner) to find out if a building is listed or in a Conservation Area I think the point made is that if a Local Authority is specifically asked and they provide the wrong informationit is in that specific instance that the owner (prospective owner) may be regarded as having done all he/she could and the LA could be at fault.

Some years ago I did have a case where the Local Authority provided wrong information. In that case the owner knew it was in a CA, but did not tell the purchaser and the LA gave wrong information to the purchaser who then went in in ignorance of it being in a CA. When planning to replace the windows (with DG!) they went to get Bldg Regs and were then told about the CA and article 4 direction. They sued the previous owner. The case never went to court (settled by negotiation btween the parties), but the LA were VERY sheepish and if it had gone further would have been int eh firing line.

Whilst I did not agree with the installation of the DG, my view was that the purchaser (and their solicitor) did all that they could reasonably do and the fact they were ignorant of the CA was due to a lie n the part of the vendor and negligence on the part of the LA.


On the matter of curtilage generally the new Heritage Protection Bill (in draft going through Parliament at present) intends to simplify this. The proposed new style of 'list description' is in fact more a detailed description and statement of significance intended to avoid this sort of confusion.

The main problem is when will all this wonderful new documents be in place ? The answer is c. 100 years!! :shock: That is how long it is estimated it will take to review and revise all listings. I suspect what will actually happen is that owners and their professionals will be required to do the work at the point of making an application nd that this will become the new listing.

Stephen

 

[Nemesis]

But conservation area law is not the same as listed building law, where failure to conform is a crimnal offence and ignorance is not a defence, and there are a wide variety of sources from which to find if a building is listed. Whatever the arguments against or not against a local authority with regard to searches, that doesn't alter listed building law.