The extent of listing (3)
In the third and final extract from his new book, Charles Mynors looks at cases relating to the extent of a building’s curtilage and summarises the position on the extent of a listed building.
Objects and structures in the curtilage
It is not surprising that, as noted in the previous article (Context 96, September 2006), a listed building is defined to include objects and structures fixed to the building. They are, after all, very obviously part of the building. It is perhaps less immediately apparent that the listing extends to any object (such as a statue or birdbath) or structure (such as a garden pavilion or wall) in the vicinity of the building.
This protection obviously makes sense in the case of, for example, a large country house whose grounds contain numerous temples, statues, grottoes and so on; they may indeed in some cases be one of the reasons, or indeed the principal reason, why the building was listed. On the other hand, they are still affected by the restrictions involved in the listing process even if they are of no interest whatever (such as a decaying garden shed). as with fixtures, it should be borne in mind that listed building consent would be needed for their alteration or removal only if the proposed works would affect the character of the listed building as a whole.
However, a line has to be drawn somewhere. Particularly in the countryside, listed buildings may be associated with large landholdings, sometimes extending to many hundreds of hectares. It would be ridiculous if all objects and structures within them were to be theoretically protected. The planning acts accordingly have (since 1968) granted protection to ‘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 July 1, 1948’.
The listing thus extends to pre-1948 objects and structures within the curtilage of the building actually included in the list. In principle, the dictionary definition of ‘curtilage’ is ‘an area of land attached to a house and forming one enclosure with it’. It derives from the Old french word courtil, meaning ‘small court’. It is a conveyancing term often used in property transactions; and it turns up in various modern statutes.
although the use of the word is thus relatively widespread (at least in legal contexts), it may in practice sometimes be far from straightforward to determine what is the curtilage of a particular building – or, of greater significance, whether one structure is in the curtilage of another. although much is sometimes made of this, when considering whether an ancillary object or structure is to be taken as being protected by the listing of a nearby building, it is often more important to consider whether the associated structure is ‘ancillary’ to the listed building (considered in the first of these three articles, Context
95, July 2006). This is certainly what emerges from the decision of the House of Lords in Debenhams and those of the High Court in Watts, ex parte Bellamy and Morris (considered in the second article, Context 96, September 2006).
Nevertheless, it is in some instances necessary to consider the definition of curtilage. There are numerous decided cases dealing with this, some in contexts other than specifically relating to listed buildings, and those referred to here are only a selection. This discussion below accordingly considers, first, the cases specifically relating to the curtilage of listed buildings, then the decisions relating to the extent of a curtilage, decided in the context of permitted development rights and under other statutes. finally, there is a brief look at some of the decisions from other areas of law, referred to in the statutory cases.
The extent of curtilage: listed buildings cases
The principal case dealing explicitly with the definition of curtilage in the context of listed buildings is Attorney-General v Calderdale BC, relating to Nutclough Mill at Hebden Bridge in West Yorkshire (see the first article for a diagram showing the facts of this case).
It had been conceded that buildings in different ownerships might be within the same curtilage; but he had contended (rightly, in the view of the court) that they fell less easily within the same curtilage if they were in different ownerships. It had also been submitted that less attention should be paid to title and division of ownership, otherwise listed building control could easily be evaded by colourable transfers of title; and more weight should be given to historical association and proximity.
In its judgment, the Court of appeal referred to a number of decisions (including Methuen-Campbell v Walters, Pilbrow v Vestry of the Parish of St Leonard, Shoreditch and Vestry of St Martin’s in the Fields v Bird), showing that different facts might lead to different conclusions, and indeed that the same facts might lead to different judicial opinions. However, there was at the end of the argument before the court agreement that: ‘three factors had to be taken into account in deciding whether a structure (or object) was within the meaning of [s 1(5)], whatever might be the strict conveyancing interpretation of the ancient and somewhat obscure word ‘curtilage’. They are:
1)   the physical ‘layout’ of the listed building and the structure
2)   their ownership, past and present’, and
3)   their use or function, past and present.’ Stephenson LJ thus held that the terrace had definitely been within the curtilage of the mill when they were
both built in 1870, and therefore came ultimately to the conclusion, not without doubt, that: ‘the terrace has not been taken out of the curtilage by the changes which had taken place, and remained so closely related physically or geographically to the mill as to constitute with it a single unit and to be comprised within its curtilage in the sense that those words were used in this subsection.’
The threefold test set out in Calderdale remains the key to analysing this issue, and has been applied by the court in a number of subsequent cases that have explored particular aspects of this problem.
The extent of curtilage in the case of structures such as ice houses, garden temples and ha-has in the grounds of a country house was considered by Sir frank Layfield, sitting as deputy judge in Watson-Smyth v Secretary of State (see figure 8). He concluded, first, that where one structure that is clearly ancillary to a listed principal building is listed in its own right, that does not of itself mean that the ancillary structure is outside the curtilage of the principal building. Many such structures are listed because of their own merit, but are clearly within the curtilage of listed buildings. Second, it can not be assumed that each structure in such a group has its own, distinct curtilage, for that might lead to the splitting up of a single, clearly defined curtilage into indefinable parcels.
as to the situation that sometimes occurs where there are within a single area of land a number of buildings, some but not all of which are listed, and none of which is more significant than the others, this was considered in Re West Norwood Cemetery, in the context of a large municipal cemetery. It was held that ‘the effect of listing 67 buildings and monuments within a clearly defined area means that... the whole of the cemetery is effectively within the listing’. That may have been correct on the particular facts of that case, but the approach should not be pushed too far.
On the other hand, it has been confirmed that not every building has or is capable of having a curtilage. at the Bishopsgate goods Yard, in east London, the secretary of state had listed, some while earlier, the entrance to an older structure, of which most of the remainder had perished; and more recently a historic viaduct running through the middle. In relation to the former, Ouseley J (in Hammerton v LUL) held that ‘it seems odd to suppose the gates and walls themselves had a curtilage and that those other parts lay within the curtilage’. The same would no doubt apply to features such as gate lodges, boundary walls, bollards, and monuments that have been listed in their own right. frequently they will be within the curtilage of other buildings that have also been listed, but where they are not, the listing of a bollard does not give rise to protection for the unremarkable building in the forecourt of which it is standing.
Visual matters may occasionally be significant. This has not yet been tested in the courts, but was the subject of an appeal decision, relating to a group of buildings surrounding a farmyard in Chipping
Campden in gloucestershire. The farmhouse on one side was included in the list in 1960. The other buildings surrounding the yard were by that date probably no longer in agricultural use, and were by the date of the appeal in separate ownership; one had been turned into a separate dwelling. The secretary of state considered that, although a substantial portion of the other buildings surrounding the farmyard were now ancillary to the new dwelling in the practical sense, the visual function of those buildings, and of the new dwelling itself, continued to relate to the former farmhouse; he thus decided that all the buildings surrounding the yard were within the curtilage of the farmhouse (even though it was described in the list as being of no special interest).
This should be contrasted with Morris v Wrexham CBC and the National Assembly, discussed in the previous article, which suggests that the sole question was what was the position at the date of the listing – subsequent events are irrelevant.
The Court of appeal has considered the issue of curtilage relatively recently, in the case of Skerritts of Nottingham Ltd v Secretary of State. This concerned the grade II listed grimsdyke Hotel in Harrow (the former residence of W S gilbert). Skerritts, the owners of the hotel, had installed double glazing in a stable block, situated some 200 yards from the hotel (see figure 6). No listed building consent had been sought for the operation. The local authority began enforcement proceedings, on the basis that the stable block lay within the curtilage of the hotel, so that consent should have first been obtained. Skerritts maintained that, on the basis of the decision in Dyer v Dorset CC (see below), no listed building consent was required, since the curtilage of a building must be small. This latter view was accepted by Mr george Bartlett QC, sitting as a deputy judge, when the matter came before him.
Figure 6. Grim’s Dyke, Harrow (Skerritt’s of Nottingham v Secretary of State)
The Secretary of State appealed successfully to the Court of appeal. In giving judgement, Robert Walker LJ maintained that: ‘whilst the decision in Dyer was plainly correct… this court went further than it was necessary to go in expressing the view that the curtilage of a building must always be small, or that the notion of smallness is inherent in the expression’.
The court did not see fit to give any further detailed guidance upon the matter, other than to reiterate the proposition established in Dyer that curtilage will always be a question of fact and degree. accordingly, it appears that while in any given instance it will be necessary to have regard to all the circumstances, the starting position for consideration can no longer be an assumption that a curtilage is necessarily limited in extent.
The decision in Dyer was also applied in an appeal decision relating to the demolition of a lodge building in Warwick (noted at [2003] JPL 769). The lodge was some 200 metres from the main (listed) house, which had subsequently been used as a school, and the two buildings had been in the same ownership and related use until the date of the listing. There was then a hedge partially enclosing the lodge, but it was still open to the drive and visible from the front of the main house. The grounds had been used for modern residential development, but that was not sufficient to negate the original relationship; and the inspector accordingly found the lodge to be ancillary to and in the curtilage of the house, so that consent was required for its demolition.
The position is thus that, for the purposes of establishing what is the extent of a listed building, the position must be examined as it was at the date of listing (or, possibly, as it was at 1 January 1969 in relation to buildings listed before then), in the light of the criteria in Calderdale. and once a decision has been reached, the courts will be slow to interfere. as Sullivan J expressed it in the unreported 1998 case R v North Devon DC, ex parte Tarn: ‘Whether a particular structure is within the curtilage of a particular listed building is a question of fact for the local planning authority or the secretary of state to decide. On such a question of fact, I would interfere with the district council’s decision that, in this case, the hedgebank was not within the curtilage of Prospect Lodge only if I thought it had erred in principle in some way, or if there was no evidence to support its decision or, to put it another way, if its conclusion in this respect was perverse.’
Definition of curtilage: other planning cases
The courts have on a number of occasions considered the extent of the curtilage of a dwellinghouse, to determine whether the construction of garden buildings and enclosures would be permitted by the TCP (general Permitted Development) Order 1995 or its predecessors.
Collins v Secretary of State (1989) related to a cottage set in 4.5 acres of gardens, of which the part
nearest to the cottage was well-cut lawn and the remainder was rough grass, largely neglected. The appellant constructed a summerhouse in the rough part of the gardens, which was the subject of an enforcement notice. On the subsequent appeal to the high court against the inspector’s upholding of the notice, Sir graham eyre QC, sitting as deputy judge, considered that in determining the nature and extent of the curtilage of a dwellinghouse, it is important that it should serve the purposes of the dwelling in some necessary or useful manner (echoing the test in Sinclair-Lockhart’s Trustees (see below). On the facts in this case, the rough part of the garden could not be described as part of the curtilage of the cottage, since it did not serve the cottage.
The facts in James v Secretary of State (1991) were not dissimilar; a tennis court was constructed towards the further end of a 1.2-acre parcel of land surrounding a detached house set in wooded countryside. Sir graham eyre QC (again) held that the extent of the curtilage is ‘quintessentially a matter of fact’. The inspector considered that the field on which the court had been constructed was within the same ownership as the house; and found that there was a functional association between them. However, on the facts, the inspector found that the field was quite separate and distinct from the cultivated garden attached to the house, and the house and the tennis court did not have the appearance of close association or of being within the same enclosure. His decision, that the field was not in the curtilage of the house, was thus entirely satisfactory.
a third decision, McAlpine v Secretary of State (1995), again related to the construction of a swimming pool and tennis court in a paddock beyond the bottom of a generous garden. Nigel Macleod QC, sitting as deputy judge, confirmed that the decision as to whether the pool was in the curtilage of the house was essentially a matter of fact and degree for the inspector. He also suggested that it is allowable for inspectors, in appropriate cases, to consider historical evidence where it assists the determination of a present curtilage boundary.
The most recent of these gPDO cases is Lowe v The first Secretary of State (2003), in which the court emphasised that the curtilage of a building was not necessarily to be equated to the land in the same ownership as it.
It should be noted that, when determining what is the extent of a listed building, the key question is what was the extent of the curtilage of the building in the list at the date on which it was listed. However, when determining what permitted development rights apply, the key question is what is the extent of the curtilage of the building in question at the date of the development. The principles are the same in either case, but the date on which they fall to be applied is different.
National and local planning policies sometimes refer to various types of development being acceptable within the curtilage of existing buildings. PPg 3
thus encourages housing development to take place on previously development land, which is defined to include the curtilage of previously existing buildings or infrastructure; this was considered in Withers v Secretary of State. a similar policy in a local plan was considered in Wheeler v The first Secretary of State.
finally, where a building or structure is on a sea coast, a tidal river or an estuary, the tidal water and the land beneath it are excluded from its curtilage.
Definition of curtilage: cases decided under other statutory regimes
One definition of curtilage often cited is ‘the ground which is used for the comfortable enjoyment of the house or building... serving the purpose of the house or building in some necessary or reasonably useful way’. This formulation, from Sinclair-Lockhart’s Trustees v Central Land Board (1951), is not very precise; and it might also include, for example, a neighbour’s garden which could serve a house in a very useful way by providing an attractive view. But the test in Sinclair-Lockhart was used by the inspector whose decision was the subject of judicial criticism in Wheeler, on the basis that he had applied the test incorrectly, when determining that an ancillary structure ‘must serve the house or building in some necessary [or] reasonable way’.
In Stephens v Cuckfeld RDC, a case in which the court generally shied away from defining curtilage, it was pointed out that one can have a garden which is not within the curtilage of anything. further, in the 1898 case of Caledonian Railway Company v Turcan, it was held by the House of Lords that an accessway leading to a yard could in appropriate circumstances be part of the curtilage of the building adjoining the yard.
It is thus not surprising that, in Re St George’s Church, Oakdale, it was held that the territorial extent of the curtilage ‘will depend on the facts of the individual case and the circumstances of the particular site’. and in Methuen-Campbell v Walters (1979), Buckley J held that it was not enough that the land and its curtilage were conveyed or demised together. Nor is the test whether the enjoyment of one is advantageous or convenient or necessary for the full enjoyment of the other:
‘for one corporeal hereditament to fall within the curtilage of another, the former must be so intimately associated with the latter as to lead to the conclusion that the former in truth forms part and parcel of the latter. There can be very few houses indeed that do not have associated with them at least some few square yards of land, constituting a yard or basement area or passageway or something of the kind... which on a reasonable view could only be regarded as part of the messuage, and such small pieces of land would be held to fall within the curtilage of the messuage. This may extend to ancillary buildings, structures or areas such as outhouses, a garage, a driveway, a garden, and so forth. How far it is appropriate to regard this identity
as part of one messuage or parcel of land as extending must depend on the character and circumstances under consideration. To the extent that it is reasonable to regard them as constituting one messuage or parcel of land, they will be properly regarded as all falling within one curtilage; they constitute an integral whole.’
The leading case on this point, Dyer v Dorset CC, concerned a provision in the Housing act 1980 giving an owner of a dwellinghouse the right to buy it where it ‘either forms part of, or is within the curtilage of, the building’. This particular case concerned a college of agriculture, which comprised an estate of about 100 acres containing the main house, Kingston Maurward, which was its headquarters, extensive gardens, a park and a mass of outbuildings (see figure 7) – a situation similar to a number of larger listed buildings in extensive grounds used for institutional purposes – Kingston Maurward House itself is indeed listed, grade I. The lecturers’ houses, including the one whose status was in dispute, were on the edge of the estate, facing a road which provided the only vehicular access. They were fenced off at the back, although there was pedestrian access to the rest of the college grounds.
The Court of appeal held that the issue of whether a particular dwellinghouse was within the curtilage of another building, being a question of fact and degree, was primarily for the trial judge. Lord Donaldson MR examined the numerous authorities, including most of those referred to above, and concluded that the word curtilage seemed always to have to be read in context. accordingly, if in this case the relevant words were the ‘curtilage of the college’, he would have had little doubt that, despite the fact that the house was on the
Figure 7. Kingston Maurward House and Park, Dorset (Dyer v Dorset CC)
edge of the campus and divided from it by a fence, it would have rightly been held to have been within that curtilage. But those were not the relevant words, and he was quite unable to find that the house lay within the curtilage of any other college building or collection of buildings.
This suggests that a subsidiary building that might have been within the curtilage of a principal building in large grounds will probably be considered to be not within that curtilage once it has been enclosed within its own curtilage. See also the decision of the Scottish Lands Tribunal in Shipman v Lothian Regional Council, dealing with the curtilage of schools in the context of similar legislation. and Barwick v Kent County Council, concerned with a house allegedly within the curtilage of a fire station.
Structures forming part of the land
as with objects and structures attached to the building, the first critical test is not any intrinsic worth that the object or structure may or may not possess, but whether it ‘forms part of the land’. The normal rules for distinguishing between fixtures and fittings will therefore apply. Thus greenhouses, not secured to the ground but standing by their own weight on concrete dollies, were held not to be part of the land; whereas in Holland v Hodgson a dry stone wall was held to be clearly a fixture.
In the latter case, the position was summarised as follows: ‘Perhaps the true rule is, that articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless the circumstances are such as to show that they are intended to be part of the land; the onus of showing that they were so intended is on those who assert that they have ceased to be chattels; and that, on the contrary, an article which is affixed to the land even slightly is to be considered as part of the land, unless the circumstances are such as to show that it
was intended all along to continue a chattel, the onus lying on those who contend it is a chattel’.
In a notable borderline case, carved figures on the stairs, sculptured marble vases in the hall, a pair of marble lions at the head of a flight of garden steps and 16 stone garden seats, all of which merely rested on their own weight, were all held to be fixtures. The test was whether the items were ‘part of the architectural design... and put in there as such, as distinguished from mere ornaments to be afterwards added’.
The listing does extend to structures forming part of the layout of the grounds of a building. This was considered in Watson-Smyth v Secretary of State and Cherwell DC, in the context of a ha-ha (a ditch and wall constructed so as to form a boundary to the garden of a country house while not interrupting the view of the countryside beyond). The owner of North aston Hall (listed grade II) had constructed a new drystone wall using stones from the wall from the ha-ha, and had then filled in the ditch. The owner appealed against the resulting listed building enforcement notice, first (unsuccessfully) to the secretary of state and then to the court. Sir frank Layfield QC, sitting as deputy judge, appeared to accept without question the finding of the inspector that the two main elements of the ha-ha, the ditch and the wall, were integral parts of the structure, and thus that they could form part of the listed building provided that the ha-ha was within its curtilage.
The decision in Watson-Smyth is clearly correct as far as it relates to the wall, and confirms that structures such as terraces, balustrades, flights of steps and so forth are structures capable of being treated as part of a listed building by virtue of section 1(5). It is less clear, however, that a ditch can be an object or structure, albeit that its construction (if it is of significant size) may involve an engineering operation. The decision should be read alongside that in Cotswold DC v Secretary of State (1985), where it was held that the listing of a building did not extend to the actual ground surrounding it.
Pre-1948 walls and other means of enclosure are also included in the listing, provided (as will normally be the case) that they are ancillary to a principal building and not to a building that is itself ancillary.
On the other hand, a hedgebank adjoining a road in Devon was held not to be part of a listed house standing nearby: ‘The hedgebank is to be distinguished from the ha-ha in Watson-Smyth. Very often the function of a ha-ha is to define the curtilage around a hall or mansion, separating it physically, but not visually from the surrounding parkland. There is nothing to suggest that this hedgebank is contemporaneous with Prospect Lodge [the listed building]. The evidence suggests that it may be of some antiquity. It seems likely that it is an old field boundary, since it extends along the whole length of the frontage… When Prospect Lodge was built in 1820, it no doubt served to enclose the parkland that then enclosed the house, but there is nothing to suggest that the whole of that parkland should be treated as being within the
Figure 8. North Aston Hall, Oxfordshire (Watson-Smyth v Secretary of State)
curtilage of Prospect Lodge.’
Since april 1, 1987, structures in the curtilage of a listed building were not subject to listed building control if they have been erected since before 1948. This removes from the need for consent many trivial operations in the grounds of listed buildings. It incidentally also removes the anomaly whereby listed building consent could in some circumstances be required for the demolition of a garden shed erected (quite possibly under permitted development rights) in the 1960s.
In the light of the above analysis, which confirms the view of the Court of appeal in ex parte Bellamy that the legal position is ‘by no means simple’, the correct approach would seem to be as follows.
1)  The building that is itself included in the list (‘the principal building’) must first be identified from the list. The description should only be referred to where the identification of the building is ambiguous.
2)  The whole of the principal building, including its interior, will be covered by the listing.
3)  any object (such as a sundial or panelling) fixed to the principal building at the date of listing will be included, provided that it is a ‘fixture’ according to the normal rules of land law.
4)  any structure fixed to the principal building at the date of listing will be included, provided that, if
it is itself a building, it was ‘ancillary’ to the principal building at the date of listing (or possibly at 1 January 1969 in the case of buildings listed prior to that date).
5)  The curtilage of the principal building must then be identified, which will be ‘quintessentially a matter of fact’. Relevant matters will be the physical layout of the principal building and any other buildings that might or might not be within its curtilage; their ownership, past and present; and their function, past and present. Not all the land in the same ownership as the principal building will necessarily be included; some land in separate ownership may be included. Not every structure has a curtilage.
6)  any pre-1948 structure that was in the curtilage of the principal building at the date of listing (or possibly 1 January 1969) will be included in the listing, provided that it is a fixture, and is ancillary to the principal building.
The practical effect of the inclusion in the listing of ancillary structures is limited by the requirement that listed building consent is only needed for works to the ‘listed building’ (to include the building in the list and all the ancillary items) where they affect the special character of the listed building as a whole. and, of course, if an ancillary structure has been erected since 1948, it would now only be included within the listing if it was actually (directly or indirectly) ‘fixed’ to the principal building. © Sweet & Maxwell 2006
Charles Mynors is a barrister in the Chambers of Robin Purchas QC (now at Francis Taylor Building in the Temple), and a visiting professor in the planning department at Oxford Brookes University. The fourth edition of his book Listed Buildings, Conservation Areas and Monuments reviewed on p44) was published by Sweet & Maxwell in May.