Curtilage

[Nemesis]

PS - although the new listing descriptions are intended to be more detailed, they still won't be as comprehensive as to clarify all issues with regard to curtilage listing! That will still ultimately be at the discretion of the courts.

 

[devonjem]

Thank you for all of the helpful replies. As I had already deduced, the issue is not that clear cut.

The house on Plot X was built after 1948 but before the manor house was listed. So I do not think that the Plot X house is listed or is a curtilage-listed building.

However, the land on which it is built, Plot X, was at one time part of the garden of the manor house. So that land was at one time part of the curtilage of the manor house. Can curtilage change over time? Yes I suppose so. But to what extent? This is the rather grey area where the law has formulated a legal test to assist in the determination of present day curtilage. That test directs the court to look at some factors, including the physical layout of the the manor house and the offending structure, and past and present ownership of Plot X. The fact that Plot X now is in a different ownership than the manor house is not determinative - Plot X can still be land in the curtilage of a listed building, especially if it remains inextricably linked, in terms of physical setting, to the manor house. The erection of fences/hedges (which might or might not act as legal boundaries) does not affect the characteristics of the original parcel of land. So its a matter of fact and degree - which is not helpful to the landowner trying to work out what is what.

Of course the listing of a building cannot affect already existing neighbouring buildings, but it might affect future development of those neighbouring properties, as there is expressly excluded from permitted development any structure over 10 cubic metres on land within the curtilage of a listed building.

To set the scene, the manor house sits in the centre of an area of parkland and fields and is surrounded by other listed buildings that once served the manor house. Rather oddly, the house on Plot X was allowed to be built right next to the manor house. The fact that planners might have been relaxed back then does not mean they will be the same today. As I mentioned, Plot X does have a listed structure (an old barn) within its boundary, and that structure, while being quite far away (several hundred metres) remains visible to the summerhouse. So there is also an argument that the summerhouse is within the curtilage of that barn - but again its fact and degree.

thanks

 

[Nemesis]

http://www.ihbc.org.uk/context_archive/29/mlearned_dir/mlearned_s.htm


But of course case law is not set in stone and alters.

But - the curtilage of a building and a curtilage listed building should not be confused.

as there is expressly excluded from permitted development any structure over 10 cubic metres on land within the curtilage of a listed building.

I know of many developments within the 'curtilage land' of a listed building which have been given planning permission which are far larger than that. 'Permitted development 'doesn't mean all development is banned!

 

[devonjem]

Just to clarify, I am not saying all development is banned.

Anyone can apply for PP to build something on land within the curtilage of a listed building. And permission may or may not be granted. However, the application itself triggers, I think, other legislation (the Planning (Listed Buildings and Conservation Areas) Act 1990)that requires the setting of the listed building to be taken into account. So, anything that requires planning permission will automatically cater for the protection of the setting of the listed building.

That is not so in regard to buildings erected under permitted development rights. No application for PP is needed in that case, and therefore the said Act is not applicable and consequently the setting of the listed building will not be considered. I think this is why permitted development limits buildings to 10 cubic metres - maybe there is an assumption that buildings under 10cubic metres typically will not harm the setting. Anything bigger than that needs an application for PP, and that will require the local authority to consider the setting under the 1990 Act.

The summerhouse in question is over 100 cubic metres. It can be built under permitted development rights if not on land within the curtilage of the listed building. If it falls within the curtilage, it cannot be built without PP, and then its up to the council to decide if it harms the setting.

 

[Nemesis]

The permitted development rights allow for the building of garden shed without a great deal of fuss.

Setting of a listed building is, of course, a planning minefield.

 

[Gareth Hughes]

Thank you for all of the helpful replies. As I had already deduced, the issue is not that clear cut.

The house on Plot X was built after 1948 but before the manor house was listed. So I do not think that the Plot X house is listed or is a curtilage-listed building.

Nor is it within the curtilage of the listed building (it may be within the former curtilage of the manor house, but for listed building (and related planning - permitted development) purposes, the "start line" is the curtilage of the manor house as a single legal land holding on the date the manor house was listed, not any previous date)

 

[Pford75]

From http://www.communities.gov.uk/documents/planningandbuilding/pdf/324058.pdf

When a building is included in the statutory list, the Department notifies the
appropriate local planning authority. That authority must then notify the owner and
occupier of the building. As it is a criminal offence to carry out any works (either to the
exterior or interior) which would affect the character of a building once it is listed
(unless listed building consent has been obtained), notice of listing must be given to the
owner as soon as possible. The statutory notice is prescribed in the Planning (Listed
Buildings and Conservation Areas) Regulations 1990. Owners and occupiers are also
notified by English Heritage.

Stephen is correct that the point I was making is that where a Local Authority can be proven negligent in notifying the prospective purchaser of LB status (given that they have a statutory duty under the Planning regulations...despite other sources being available), the purchaser may have a counter claim against the LA. This will not alter the fact that LBC would have been required, but it does enable the purchaser to seek recompense for any costs incurred (either a different in value to the property or payment of fines etc.). In reality, the consequence of this is that the LA often choses not to pursue action against the owner (if they are aware that the owner will pursue them for costs). It was too late last night, but I have spoken with my father today and he personally knows of at least two instances where this has happened....1 where the owner successfully claimed against the LA following demolision of a structure which would have required LBC and the second where the LA chose to grant retrospective consent.

 

[Nemesis]

They may, and it is up to the local authority to notify an owner of a new listing. However, most listings are not new ones, which the section quoted is dealing with, and the law is as it is.