Friday, 15 March 2013

Barns near listed farmhouses


If you follow not only the main entries on this blog but also the published comments, you may have noticed a couple of mentions of the judgment in R (Egerton) v. Taunton Deane BC [2008] EWHC 2752 (Admin) which related to a dispute as to whether a barn adjacent to a listed farmhouse was itself listed by virtue of its being within the curtilage of the farmhouse at the time when the farmhouse was listed.

If the barn was within the curtilage of the farmhouse when it was listed, then the barn as a curtilage building is also listed. Subsequent separation of the barn from the curtilage of the listed farmhouse cannot alter the barn's listed status. The question that arises, however, is whether the barn really was within the curtilage of the farmhouse either at the time of listing or at all.

Readers may begin to think I have a fixation about barns, but I just seem to get these sort of problems coming across my desk. In addition to a couple of such cases in which I have been asked to advise, I am aware of several other examples of this query being raised around the country.

Before one looks at the issue of whether or not the barn was in the curtilage of the farmhouse at the time of listing, it is necessary first to consider whether the barn was even within the same planning unit as the farmhouse. It is well understood that a farmhouse is not an agricultural building and cannot therefore be erected as permitted development under Part 6 of the Second Schedule to the GPDO. A farmhouse is by nature and purpose a single private dwellinghouse, and as such the dwelling and the land occupied with it as part and parcel of the same planning unit (usually just the garden and maybe also some form of forecourt) necessarily falls within Use Class C3. This is not an agricultural use.

The precise extent of the planning unit is to be determined by reference to the test laid down by Bridge J (as he then was) in Burdle v. SSE [1972] 3 All ER 240; 24 P&CR 174. The basic rule is that the unit of occupation is the appropriate planning unit, unless and until some smaller unit can be recognised as the site of activities which amount in substance to a separate use both physically and functionally.

In quite a few cases, the farmhouse (together with the land occupied with it – i.e. the garden) is separate from the neighbouring farm both physically and functionally, and it therefore constitutes a separate planning unit, falling (as mentioned above) wholly within Use Class C3. As a separate private dwelling, the occupation and use of the farmhouse for exclusively residential purposes cannot be said to be ancillary or incidental to the use of any of the neighbouring land. Equally, the neighbouring farm is not ancillary or incidental to the residential use and occupation of the farmhouse.

It is well settled law that the use of one planning unit cannot be ancillary to the use of any other planning unit (see Westminster City Council -v- British Waterways Board [1984] 3 All ER 737). It follows that a building within one planning unit cannot have a primary/ancillary relationship (in terms of its use) with a building on a separate planning unit, even if immediately adjoining. This alone would preclude a building in one planning unit being within the curtilage of a building in a different, though adjoining, planning unit.

This alone would be sufficient to negative any suggestion that any building that is in practice outside the confines of the planning unit comprising the farmhouse and its domestic garden is within the curtilage of the farmhouse. However, there is clear judicial authority to show that, even if the farmhouse and the nearby farmyard had been within one and the same planning unit, a barn standing in the nearby farmyard may not in any event have been within the curtilage of the farmhouse either at the time of the listing or at all.

Bearing in mind the purely residential or domestic use of the farmhouse, one has to examine in that light the relationship (if any) to the house that any of the buildings in the farmyard might have had.

According to the Oxford English Dictionary the ‘curtilage’ of a building is :

a small court, yard, garth or piece of ground attached to a dwellinghouse, and forming one enclosure with it, or so regarded by the law; the area attached to and containing a dwellinghouse and its outbuildings”.

The practical interpretation of the term which is most widely accepted and applied is the following passage from the judgment in Sinclair-Lockhart’s Trustees v. Central Land Board (1950) 1 P&CR 195 :

The ground which is used for the comfortable enjoyment of a house or other building may be regarded in law as being within the curtilage of that house or building and thereby as an integral part of the same although it has not been marked off or enclosed in any way. It is enough that it serves the purpose of the house or building in some necessary or useful way.”

In most cases, any nearby barn will not at any time have served the purpose of the farmhouse in any necessary or useful way. Its function will have related solely to farming activities, and it would not in any way be associated with the residential use of the farmhouse. Thus such a barn does not even meet the basic Sinclair-Lockhart test, nor does it conform to the dictionary definition, if it is not attached to the dwellinghouse, but is physically and functionally separate from it, not forming (or being regarded by the law) as forming one enclosure with the farmhouse and not being within the area attached to and containing the dwellinghouse. Neither such a barn nor any other building in the farmyard could be described as ‘outbuildings’ of the farmhouse, if they were devoted solely to agricultural or other non-domestic uses.

More recent judgments on the definition of ‘curtilage’ generally do no more than reiterate the basic rule set out in Sinclair-Lockhart’s Trustees. They have repeatedly stressed the need for the alleged curtilage to have a functional relationship with the dwellinghouse, which must necessarily be related to its residential use or associated domestic activities.

This brings us to the judgment of Sullivan J (as he then was) in R (Egerton) v. Taunton Deane BC [2008] EWHC 2752 (Admin).

The judge noted the physical layout of the farmhouse and the other buildings in question in that case. From a date prior to the listing of the farmhouse in 1984, the farmhouse was enclosed by a wall. The other buildings (including ‘Mill Barn’ and the ‘Old Granary’) were located on the other side of that wall. ‘Mill Barn’ was some distance from the farmhouse. Beyond these and two other buildings to which the judge referred, there were a number of larger agricultural buildings which stretched away further to the west.

It had been contended that the curtilage of the farmhouse was not defined by the wall on its western and southern sides, but extended so as to incorporate Mill Barn and the Old Granary. However, the judge observed that there was no readily discernible feature which might serve to define the curtilage to either the west or the south of the farmhouse other than the wall, and it had been accepted in argument that the curtilage could not extend so as to include the whole of the farm. The question therefore was: if the curtilage of the farmhouse was not defined to the south by the wall, then where did it end? In answer to that, it had been submitted that the curtilage would include the large agricultural buildings further to the west of the four buildings referred to.

Sullivan J did not accept the submission that either those buildings, or the group of four buildings including Mill Barn, were within the curtilage of the farmhouse. In 1984 there was a clear distinction between the farmhouse and its curtilage and the farmyard with its buildings, which included Mill Barn. The judge accepted that there will not necessarily be such a physical distinction in each and every case, but on the evidence of the aerial photograph and the Ordnance Survey, there was such a distinction in that case.

This view was reinforced by evidence as to the use and function of the Old Granary and Mill Barn in 1984. The two barns were always used in conjunction with the farming activities carried on at the farm. Thus, it could be seen that in 1984 Mill Barn and the Old Granary were not being used for purposes that were ancillary to the use of the farmhouse as a dwellinghouse; they were being used for the purposes of the general farming enterprise which was being carried on at Jews Farm. They, and the agricultural buildings to the west, were being used for agricultural purposes. They were not being used, for example, to garage the farmer's car, to store his domestic items, as a children's playroom, staff quarters etc.

The alternative submission was that the farmhouse was not simply a dwellinghouse; it was the hub from which the agricultural business at Jews Farm was being conducted. The judge readily accepted that the farm was being run from the farmhouse in 1984, but the whole of the farm, and all the agricultural buildings upon it, could not sensibly be regarded as being within the curtilage of the farmhouse on that account. The primary use of the farmhouse was as a house. The farm, as a whole, was not listed, the farm house [original emphasis] was listed, and its curtilage, as a house, was clearly defined by the wall which separated the residential use within the wall from the agricultural use that was being carried on in the agricultural buildings, including Mill Barn, and in the fields beyond.

For these reasons, although the whole of Jews Farm, including the farmhouse and all the agricultural buildings, including Mill Barn, was in common ownership when the farmhouse was listed in 1984, the listed farmhouse and its residential curtilage was both physically separated from, and functionally distinct from, the agricultural land and buildings on the other side of the wall. The fact that they were all constituent parts of the same farming enterprise at Jews Farm did not mean that Mill Barn, or any of the other agricultural buildings beyond the wall, were within the curtilage of the farmhouse.

In giving judgment, Sullivan J considered the decision in A-G (ex rel Sutcliffe) v Calderdale B.C. [1982] 46 PCR 399. It had been held in that case that there were three factors to be considered when identifying the curtilage of a building. These were: (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 had said in that case: "Where they are in common ownership and one is used in connection with the other, there is little difficulty in putting a structure near a building or even some distance from it into its curtilage. So when the terrace was built, and the mill was worked by those who occupied the cottages, and the millowner owned the cottages, it would have been hard, if not impossible, to decide that the cottages were outside the curtilage of the mill." In that case the cottages were physically linked to the mill.

In this judgment, Sullivan J considered all three of the factors promulgated in Calderdale. However, he expressly rejected a submission that the defendant local planning authority had considered only the second factor, ownership (and had wrongly concluded that the farmhouse and Mill Barn were not in common ownership in 1984), and that they had failed to address the first and the third factors mentioned in Calderdale. Sullivan J clearly did not accept that historical association alone would be sufficient to allow the land or buildings in question to be regarded as being within the curtilage of the farmhouse itself. The functional relationship (if any) of the land and buildings in question with the farmhouse at the material date (1984) was clearly the ultimate determining factor, even when the other two factors were also taken into account.

I am not the first person to draw attention to this judgment. The Legal Director of English Heritage wrote an article under the title “Legal Developments – Curtilage and Farm Buildings”, in which he referred to the Taunton Deane case. As he observed: “The key point of interest was the way the judge approached function and use.” The author concluded: “Although the layout of the buildings, their distance apart and the existence of physical boundaries between them were also factors in this decision, it is hard to see why this functional distinction (a farmhouse being a dwelling and farm buildings being agricultural) would not weigh heavily in all farm cases, even where the buildings were very much closer and no boundaries between them existed. In this case it could also be argued that non-domestic agricultural buildings attached to the farmhouse are not protected by listing either.”

I have drawn attention to this matter because I have come across several examples of planning officers assuming that a barn situated close to a listed farmhouse was thereby also listed by virtue of its being within the curtilage of the farmhouse. There may be a few cases where this is so (if the barn really was in domestic use at the time of listing), but for the reasons explained above, and as very clearly demonstrated in the Taunton Deane case, there will be many cases in which the barn in question has never been within the curtilage of the farmhouse and so is not itself listed.

© MARTIN H GOODALL

16 comments:

spongemum said...

As a matter of interest, say a dwelling has been designated with an Article 4 then the dwelling and garden beome two properties because a fence is erected dividing the house and large garden to the side, in order to create a building plot.

The wall fronting the dwelling and running along the boundary with the road is now,in part,one side of the fence which has become the new curtilage and then continues the other side of the fence forming part of the boundary/curtilage to the plot.

As the Article 4 is attached to the dwelling and it's curtilage and the plot is now a separate planning unit, does the Article 4 continue to apply to the wall that no longer forms part of the curtilage of the dwelling?

Rick said...

Thank you Martin, as ever your blogs posts are extremely well written and provide valuable analysis and commentary of land use planning matters - your eloquent and succinct writing in this post also provides wider expert opinion (beyond LB listing of barns) giving excellent advice on general farmhouse / agricultural land curtilage considerations which I for one will find very useful - as I do with all your posts!

I also would like to express my appreciation generally for the time you take and the effort you put into your writings that go a very long way in 'demystifying' planning case law and 'debunking' the misconceptions of those us that attempt to interpret it - and who are obviously far less well qualified to do so (myself included!)

Martin H Goodall LARTPI said...

The query from ‘Spongemum’ doesn’t really relate to barns near listed farmhouses, but I will deal with it briefly. I assume that what the questioner means by “designated with an Article 4” is that an Article 4 Direction has been made removing permitted development rights from a particular property (or area). The direction relates to that area of land, irrespective of any subdivision either now or in the future. If the property is split, the Article 4 Direction will still have the effect of removing permitted development rights from both parts of the property. It is entirely immaterial whether or not any part of the land covered by the direction is within the curtilage of any particular dwelling; the removal of permitted development rights will continue to apply, to the extent specified in the Article 4 Direction.

spongemum said...

Thank you for your helpful comment. We were confused as the Article Four direction specifies that it applies to the dwelling and it's curtilage so in this situation it will continue to apply to the boundary wall of the separate plot as well, even if in different ownership.

Martin H Goodall LARTPI said...

Having refreshed my memory as to the wording of Article 4, I am reminded that an Article 4 direction can be formulated in one of two ways. It can either apply to all or any development within a particular Part, Class or paragraph in an area specified in the direction (the most usual practice, which I had assumed applied here) or, alternatively, it can apply to any particular development (falling within that Part, Class or paragraph), which is specified in the direction. It is possible that the direction mentioned by ‘Spongemum’ falls in to the latter category, and is defined by reference to a particular development, rather than to a specified area. I think I would have to look at the actual wording of the direction and any plan attached to the direction in this case, in order to be able to advise properly (on a fee-paying basis).

spongemum said...

Thanks for your thoughts regarding this.
I am of the view that when the plot is developed it is unlikely that the new dwelling would automatically be subject to an Article 4 direction and therefore the wall not either, as the Article 4 I believe,is a legality attached to the property.

It's an interesting conundrum and the reply I received some time back from the planners was a confusion between what is a planning unit and what is a curtilage which I have read your views upon previously.

Varian said...

I find this very interesting in relation to the definition of curtilage. We want to build a new house on a piece of land which has been used for the last twelve years or so as part of the garden of a small listed farmhouse (within a development boundary). The conservation officer is objecting because of "diminution of curtilage" However old photos show that this site was historically not part of the garden, but was separated from it by a track. Without this piece of land, the farmhouse would still have a private garden more than five times as big as the neighbouring gardens. Do you think we can successfully challenge this assertion?

Martin H Goodall LARTPI said...

Regrettably, time does not permit me to discuss the point raised by Varian, as this clearly requires careful consideration based on its precise facts. However, it is the sort of point on which Keystone Law’s planning law team would be happy to advise if we were to receive instructions in the matter.

Sue said...

Thank you for your very interesting article.
I live in a house, within the South Downs National Park, developed from a series of barns, which belonged to the pub next door. The pub was listed in 1983, the barns were not referred and, in 1991, they were sold and formed the basis for a new house. There is a high wall of about 8', between the properties.
The barns were in a ruinous state; some timbers were re-used, some timbers were new and some older timbers were brought in. The house is built partially on the footprint old the old barn, but there are new parts and the house is essentially a new build. It is completely separate from the pub, and is not listed.
Last June we added a porch over the kitchen door, having first checked by phone with Winchester planning whether we needed to apply for planning permission. We were told we did not need it. The porch is formed by extending the roof line from the adjoining bay window over the kitchen door, with the porch being supported by an oak post, matching other oak posts in the courtyard.
The publican next door contacted Winchester planning to say we'd erected a porch without planning permission.
The enforcement officer maintains that we needed to apply for both planning permission and listed building consent.
He says "I can confirm that such works (as described above) do require planning permission, the reason for this is because material changes being made to a curtilage listed building require a listed building consent application.
A standard householder planning application will also need to be made as the development features that have been made do not meet the requirements set out in the General Permitted Development Order, Class B". He adds “As for whether planning permisson is required or not. In contrary to the advice you were offered I can ensure you that the Town and Country Planning Act is clear on the matter. As you say, the site is located in the SDNP, classed in planning terms as Article 1(5) land which does not benefit from permitted development under Class B (e) of the General Permitted Development Order 2008.”
I think he's wrong on both counts.
Class B refers to the enlargement of a dwelling house consisting of an addition or alteration of its roof; the porch is not an enlargement of the dwellinghouse.
I think Class C “any other alteration to the roof of a dwellinghouse “ and Class 1D apply. Class C does not refer to article 1(5) land, and the roof does not result in a material alteration to the shape of the dwellinghouse.
Class D1 applies regarding “the erection or construction of a porch outside any external door".
A Regarding the curtilage, the enforcement officer says:
"With regards to the matter of whether this property is curtilage listed or not. I have discussed this with the Historic Environment Officer who asked whether you can prove who owned the building in 19.12.1983? From our records it would suggest that the owner from the neighbouring pub, The Milburys was the owner at the time and that both the pub and Millbarrow barn were all part a single plot. If this is correct (your deeds may suggest otherwise) then the property is considered as curtliage listed and was included when the pub was given its listed building status".
I think this is wrong. Many Council sites advise “Buildings or structures that date from after 1st July 1948, and which are unattached to the listed building, are not considered to be curtilage listed.” Can we maintain that the house dates from post 1948 and therefore it is not curtilage listed, without even considering all the other arguments you put forward. I would be most grateful for your view.
Very many thanks
Sue Scholes

Martin H Goodall LARTPI said...

As I have explained in this blog post, it is entirely a question of fact as to whether the barn(s) was/were within the curtilage of the listed building at the time when it was first listed. This does not depend on their spatial relationship with the listed building, but solely upon their functional relationship (if any) with that building at that time. If the barn(s) was/were not used for the comfortable enjoyment of the listed building so that it/they served the purpose of the listed building in some necessary or useful way at that time, then they were not then within its curtilage and so were not included in the listing. So listed building consent is not required.

Whether planning permission is required depends on whether the permitted development rights may have been removed by a condition in any panning permission but, subject to that, if (as discussed above)the listing of the nearby building does not relate to the barn(s) then that listing as such does not prevent the exercise of permitted development rights under Part 1. However, the extent of the permitted development under Part 1 is slightly reduced in a National Park (e.g no extensions on the side of the building).

RobMF said...

I have a case where the barns associated with the Listed farmhouse have been considered 'within the curtilage' but are within a moated parcel of land would the argument that the use was different still hold true or would the enclosing moat prevent this line of argument?

Martin H Goodall LARTPI said...

Whether a barn was within the curtilage of the listed farmhouse at the time of first listing depends entirely on whether the barn was in domestic (not agricultural) use at that time. So whether the barn was within the curtilage of the farmhouse depends entirely on its functional relationship (if any) with the farmhouse at that time, and not on any alleged spatial relationship. See the Egerton judgment which I have dealt with at length in the blog.

Anonymous said...

I would welcome your thoughts on the below argument.

The farm buildings are likely to have been constructed near to the farmhouse so that the farmer could be close to (his/her) stock, equipment or animals for say security reasons and practical reasons. This is for the same reason dwellings for agricultural workers are granted planning permission. Consequently the farm buildings are functionally related to the farmhouse as they are only in existence because of the farmhouse. If the farmhouse was located elsewhere, so would the farm buildings. The farmhouse would not be there if it was not for the farm operation and likewise the barns would not be there if it were not for the farmhouse. Are the buildings therefore functionally related due to the occupier being the farmer (using both house and farm). This is similar to any other work/live unit. It is only if the farm buildings at the time of listing were operated by someone else who has no connection with the farmhouse or the person living in the farmhouse had no connection with the farm.

Martin H Goodall LARTPI said...

This is an ingenious argument, but a very similar argument was specifically rejected in Egerton. The court very clearly concluded in that case that the farmhouse (even though it was also the farm’s operational ‘HQ’) was primarily a dwellinghouse, and so (applying the test in Sinclair Lockhart’s Trustees) a nearby barn could only serve the farmhouse in some useful or necessary way if its use related to the residential use of the farmhouse. If the use of the other building (even though it might be close to the farmhouse) was agricultural rather than domestic, then it cannot be regarded as being within the curtilage of the listed farmhouse and is not therefore to be treated as a listed building. The position is, of course, different where the other building is actually attached to the farmhouse. If the farmhouse is listed, then section 1(5) of the Listed Buildings Act has the effect of including the subsidiary building in the listing.

Anonymous said...

We live in a farmhouse which is attached to a grade 2 listed barn. At the time of listing the farmhouse was used for domestic purposes and had a wall/fence boundary separating the house and domestic garden from the attached barn and the other farm buildings. At the time of listing the barn and other farm buildings were used for agricultural purposes and were used to house cattle and other farm related items such as animal feed and machinery.
The listing entry for the barn specifies that the farmhouse is of no significance.
Today we have received an email from our local planning dept advising that permitted development doesn't apply for the erection of a detached garage in the garden of the farmhouse because we are curtilage listed.
The farmhouse and barns have been under separate ownership for 9.5 years. The barns are now converted into residential dwellings.
If I have understood your post correctly the deciding factor on curtilage listing wholly revolves around whether or not the farmhouse and the barn are attached to each other even if they have distinct residential/domestic and agricultural uses. Is my understanding correct?

Martin H Goodall LARTPI said...

In answer to the anonymous query of 24 February, section 1(5) of the Listed Buildings Act provides that any structure fixed to a listed building forms part of the listed building. However, the House of Lords in Debenhams plc v Westminster LBC [1987] A.C. 396 put a gloss on section 1(5), by insisting that a structure fixed to a listed building would itself be listed only if it was subordinate or ancillary to the building that was actually listed.

I suspect that the planning officer in this case, simply applied the wording of section 1(5) without being aware of the House of Lords decision in Debenhams.

There might still, however, be a possibility that the proposed garage is within the original curtilage of the listed barn, if at the time of listing that piece of land was “used for the comfortable enjoyment of ....[the] building “ (whether or not it was marked off or enclosed in any way). It would be enough that it served the purpose of the barn “in some necessary or useful way”. (see Sinclair-Lockhart’s Trustees v Central Land Board (1950) 1 P. & C. R. 195

I have to say, though, that the curtilage of a barn is likely in practice only to have comprised a fairly small area or yard in front of the doors used for loading and unloading carts, and similar agricultural purposes connected with the agricultural storage function of the barn. It is inherently unlikely that the farmhouse itself and its garden could be said to have been within the curtilage of the barn. That would be ‘the tail wagging the dog’!

I cannot be more specific than this. A detailed answer would require professional instructions.