It is an offence to carry out any works of alteration or demolition to a listed building “in any manner which would affect its character as a building of special architectural or historic interest” without listed building consent (Planning (Listed Buildings and Conservation Areas) Act 1990 (the LBCA), ss. 9 & 7).
Hence, understanding whether or not a building is listed, or treated as listed because it is either attached to a listed building or within its ‘curtilage’ is critically important.
What is a Listed Building?
‘Listed Building’ is defined at section 1 (5) of the LBCA as a ‘building’ included in a list of buildings of “special architectural or historic interest” compiled under section 1 of the LBCA and includes:
“(a) any object or structure fixed to the building; [and]
(b) 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” (LBCA, s. 1(5)).
The protection conferred by listed building status therefore extends not just to ‘buildings’, but also to the objects and structures referred to at (a) & (b) above (unless they are expressly excluded in the listing description). That class of objects and structures is potentially very broad, but not unlimited.
NB: it is a common misconception that only the exterior of a listed building or the items mentioned in the list description are protected. Once a building is listed, the whole of the building, inside and out is protected by the listing.
What is a building?
The LBCA adopts[1] a wide definition of ‘building’ as “any structure or erection, and any part of a building as so defined, but does not include plant or machinery”.
In most cases, the subject of a listing will be a ‘building’ as the general public would understand it, e.g. an old thatched cottage, country house, historic church or cathedral. However, the definition goes well beyond standard buildings. A brief search of Historic England’s website shows that the statutory list includes ‘buildings’ such as lamp posts, post boxes, cranes, gravestones and even paving and cobble stones. To qualify as ‘buildings’ for the purposes of listed building control, these structures must satisfy a three-fold test of sufficient size, permanence and degree of annexation to the land (Skerrits of Nottingham Limited v The Secretary of State for the Environment, Transport [2000] J.P.L. 1025).
However, the mere fact that a structure appears in the statutory list is not conclusive that it qualifies as a ‘building’ and benefits from protection. The case of Dill v Secretary of State for Housing, Communities and Local Government [2020] UKSC 20 (a case concerning the sale of two, concrete urns moved from the gardens of one listed building to the gardens of another and where the urns themselves were mentioned in the statutory list) is authority that even where a structure is mentioned in the statutory list, it is possible to appeal a listed building enforcement notice arguing that the relevant structure does not meet the Skerrits tests, is therefore not a ‘building’, and that therefore there has been no breach of listed building control.
What objects or structures can be fixed to a listed building (LBCA s. 1(5)(a))?
In most cases, the answer to this question will be obvious. In the case of Corthorn Land and Timber Co Ltd v Minister of Housing and Local Government (1966) 17 P & CR 210, painted and carved oak panels as well as wooden carvings all of which formed an integral part of an August Pugin designed 19th century country house were considered to be sufficiently fixed to the building to form part of it.
However, what is the position if the structure which is fixed to the listed building is itself a building? The case of Debenham Plc v Westminster City Council [1986] 3 W.L.R concerned an office building in Kingly Street, London. The Kingly Street building was attached to a Hamley’s store (which fronted Regents Street) by a first floor bridge and basement tunnel as at the date that the Hamley’s store was listed. The bridge and tunnel were subsequently demolished / filled in. In that case, the House of Lords held that the word ‘structure’ in the LBCA s. 1(5) was limited “to such structures as are ancillary to the listed building itself”, and that the Kingley Street building was not ancillary.
By contrast, in the case of Attorney-General ex rel. Sutcliffe v Calderdale Borough Council [1982] 46 P.& C.R. 399 a row of cottages attached to and built to accommodate workers at a listed neighbouring 19th century mill were held to be listed by virtue of their attachment.
What is the extent of the curtilage of a listed building (LBCA, s. 1(5)(b)?
A common problem is establishing whether an otherwise unremarkable building is nonetheless ‘listed’ because it is located within the curtilage of a listed building.
Classic examples of curtilages and structures within them include “the stable block of a mansion house, or the steading of a farmhouse” (Debenhams), and in a country estate, “the stables and other outbuildings, the gardens and the rough grass up to the ha-ha, if there [is] one” but not a country park as a whole (Dyer v Dorset County Council [1989] 1 QB 346). These examples suggest that ‘curtilage’ could be a relatively small area. However, in the case of Secretary of State for the Environment, Transport and the Regions v Skerritts of Nottingham [2000] J.P.L. 789, stable blocks at a substantial distance from the listed country house were also held to be curtilage listed.
The precise extent of any particular curtilage is inevitably fact specific. However, the concept of ‘curtilage’ is notoriously elusive. In the case of Blackbushe Airport Ltd v Hampshire County Council [2021] EWCA Civ 398, Andrews LJ described curtilage as “like an elephant, its essence is difficult to put into words, but you know it when you see it”.
Inevitably, the difficulty in establishing the curtilage of any particular listed building has given rise to extensive litigation. The case of Morris v Wrexham County Borough Council [2001] EWHC Admin 697 (a case concerning an outbuilding associated with listed lodge) drew together the principles from the earlier cases in a simple formula: “building A is within the curtilage of building B if (1) the buildings are sufficiently close and accessible to one another, and (2) in terms of function, building A is ancillary to building B”.
As regards the second part of the Morris formula, it is important to bear in mind that the function of a building can change over time. It is not necessarily enough for an alleged curtilage building to have been functionally ancillary to a listed building when it was built, if it has since severed that relationship.
The case of Watts v the Secretary of State for the Environment [1991] J.P.L. 718 concerned the demolition of part of a wall. The wall was attached to a listed manor house but also ran through land belonging to an outbuilding. Before the main house was listed, the outbuilding was converted to residential use and sold off. After the listing, the owner of the outbuilding knocked down part of the wall to provide an improved access. The court held that the demolished area of the wall was not within the curtilage of the listed building as at the date of the listing, and therefore no listed building consent was required for the demolition.
The planning appeal case of Exminster House[2] concerned a refusal of an application for prior approval to convert Exminster House to a residential use. Exminster House was constructed in the 1930s for nurses working at the 19th century Exe Vale Hospital (formerly the Devon County Pauper Lunatic Asylum) which was separated from Exminster House by open space. Exe Vale Hospital was grade II* listed in 1985. The planning inspector found that as at the date of the listing, the nurses’ home “… was still in use as a nurses’ home and was in the same ownership and functionally there was a close relationship between the nurses’ home and the hospital” and could be considered curtilage listed at that point, despite the “distinct physical separation between the appeal building and the former hospital”.
However, after the date of the listing, the nurses’ accommodation was converted to offices, and the land between it and the listed hospital developed as a housing estate with related estate roads. The effect was to sever the “functional or ownership relationship between the [listed hospital] and the appeal building”. As a result, the Inspector held that at the time of the application for prior approval the former nurses’ home was no longer within the curtilage of the listed hospital, and therefore not curtilage listed.
Conclusion
In most cases, whether or not a building is listed (and hence whether any proposed works require listed building consent) will be obvious simply by checking the statutory list (which can be searched on Historic England’s website here: https://historicengland.org.uk/listing/the-list/). However, the issue is less clear-cut where dealing with a structure which is attached to a listed building or alleged to be curtilage-listed.
The consequences of carrying out works which affect the architectural or historic significance of a listed building without listed building consent can be severe, resulting in delays, increased costs and potentially a criminal prosecution. Hence, where there is a possibility that a building may be listed, it is critically important to confirm its status before starting any works.
Buckles Solicitors regularly work together with heritage experts to minimise the risks of development affecting actual or alleged listed buildings. If you have any queries about developments affecting a listed building, feel free to contact us.
[1] LBCA s. 91 & s. 336 of the Town and Country Planning Act 1990
[2] Appeal Ref: APP/P1133/W/15/3134525
