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