Why is curtilage-listing important
The issue of curtilage listing is important as certain works to curtilage listed structures require Listed Building Consent and owners can face enforcement action and criminal prosecution should unauthorised works be undertaken (even if inadvertently).
After having consent refused for solar panels on a shed in the curtilage of his Grade II listed farmhouse, MP Bill Wiggins proposed a Bill in 2015 to amend the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Act) by removing the reference to curtilage. This did not get further than first reading until being eventually withdrawn, but it exemplified the confusion many homeowners and conservation practitioners feel towards curtilage listing. As a result, there has been a renewed focus to clarify curtilage listing and Historic England’s Advice Note 10 was published with clear, illustrated examples. In their definition, Historic England 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.”
The revised Historic England guidance now provides a more user-friendly route into curtilage listing and its application.
Defining ‘curtilage’
The relevant legal provision on curtilage listing seems simple: Section 1(5) of 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”. In essence, the curtilage building will be subject to control through Listed Building Consent due to its contribution to the special interest of the listed building. However, in practice, assessing whether a building or structure is in the curtilage of another building is more difficult.
This is largely due to the difficulties in defining the term ‘curtilage’. Curtilage is defined by the Oxford English Dictionary as “an area of land attached to a house and forming one enclosure with it”, but the extent of the land, particularly in the case of a sprawling country estate or farmstead, and what constitutes ‘enclosure’ are often up for debate.
Section 55(2) of the Town and Country Planning Act 1990 defines land or building as within the curtilage should they be in a use that is “incidental to the enjoyment of the dwelling-house”. With curtilage listing, this is largely interpreted as the building being ‘ancillary’ to the use of the main building, as established through the Debenhams plc. v Westminster CC case, 1982.
It is also worth considering that, as the law pertaining to curtilage only came into force on 1st January 1969, should a building have been listed before 1969, then its situation should be considered from 1st January 1969 onwards. (However, this interpretation has yet to be tested in the courts).
Curtilage listing case law
To understand curtilage listing in practice, it is important to look at the accompanying case law.
The most important of these is the Attorney General ex rel Sutcliffe v Calderdale MBC, 1982, in which LJ Stephenson was asked to determine whether a row of terraced cottages associated with a listed mill could be considered to be within its curtilage and therefore subject to the special protection listing affords. LJ Stephenson established three tests to determine curtilage listing:
-
Physical layout;
-
Ownership, historic and current; and
-
Use or function, historic and current.
On the basis of these tests, he concluded that the terrace was curtilage listed as it was: attached to the mill by a corridor at one end and formed an enclosure with it; historically in the same ownership and at the time of listing; and built to serve the mill functionally. This case thus determined that the curtilage of a listed building includes “any related objects or structures which naturally form, or formed, with the listed building an integral whole” (Justice Stephenson, 1982). Crucially, it also confirmed that in defining curtilage, the boundaries should be determined on a case by case basis as there is no ‘one size fits all’ approach – providing that it follows the wording of the Act and considers 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.
Curtilage is not necessarily defined by its size and it does not have to necessarily be a small geographic area. It was decided in the case of Skerritts of Nottingham v Secretary of State for the Environment, Transport and the Regions, 1999 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”. Where large areas of land are concerned it is often important to look at the landscape character of the land in question to determine whether it plays a tangible role in supporting operations associated with the principal building, for example, accommodating domestic functions associated with a country house.
While concepts of domestic use are helpful in defining curtilage, non-domestic curtilage relationships can be even less clear. A prime example of this is historic farmsteads, particularly when an ancillary building historically owned and associated with a listed property falls into separate use.
Advice for answering curtilage listing queries