Saturday, 13 April 2013
Permitted Development within the Curtilage of a Listed Building or in a Conservation Area
Here are a couple of quiz questions for the planning professionals among our readers:
Question 1 - Hands up if you think that, in England, the enlargement, improvement or other alteration of a dwellinghouse which would consist of or include the erection of a building within the curtilage of a listed building is not permitted development (under Class 1, Part A).
Question 2 - Hands up if you think that, in England, permitted development under Part 1, Class E is restricted in size to no more than 10 cu m if the property is in a Conservation Area.
I am willing to bet that there are quite a few people who thought that the answer to both these questions was ‘Yes’. In fact even the editors of the two main practitioners’ text books – the Encyclopedia of Planning Law and Practice and Development Control Practice seem to be under this impression, judging from their respective commentaries on this legislation.
If the property in question is in Wales, then this is certainly the case, at least for the foreseeable future, because the pre-October 2008 version of Part 1 of the Second Schedule to the GPDO, which continues to apply in the principality, said precisely this. The references in the pre-October 2008 version of the Order are paragraphs A.1(g) and E.1(f) respectively.
However, it seems to have escaped the attention of nearly everyone that the revised version of Part 1 that was substituted, in England only, by the Town and Country Planning (General Permitted Development) (Amendment) (No.2) (England) Order 2008 (SI 2008/2362), with effect from October 1, 2008 changed these provisions.
What had been paragraph A.1(g), precluding the enlargement, improvement or other alteration of a dwellinghouse which would consist of or include the erection of a building within the curtilage of a listed building, was omitted from the post-October 2008 version of Part 1. It was presumably felt that such an enlargement, improvement or other alteration of the listed building would be likely to affect its character as such, and so any necessary control over such an extension would be adequately provided by the requirement for Listed Building Consent. Thus, in England, since 1 October 2008, the enlargement, improvement or other alteration of a dwellinghouse is Permitted Development under Part 1, Class A, even if the dwellinghouse in question is a Listed Building. In most cases, of course, it will require LBC, but (until LBC and planning permission are merged into a single consent) planning permission is not required as such.
Part 1, Class E comprises the provision within the curtilage of the dwellinghouse of any building or enclosure, swimming or other pool, provided that the building or structure in question is "required for a purpose incidental to the enjoyment of the dwellinghouse as such". This permitted development right extends also to a container used for domestic heating purposes for the storage of oil or LPG (but does not include the stipulation that it should be required for a purpose incidental to the enjoyment of the dwellinghouse as such). However, development is not permitted by Class E if the building, enclosure, pool or container would be situated within the curtilage of a listed building.
As regards curtilage development under Class E which is not within the curtilage of a listed building, what had been paragraph E.1(f) in the pre-October 2008 version of Part 1, restricting the size of curtilage development to no more than 10 cu m in cubic content if the property was situated within “any Article 1(5) land” (i.e. land within a National Park, AONB, Conservation Area, the Broads or a World Heritage Site), was changed in the post-October 2008 version of Part 1 so that what is now paragraph E.2 no longer refers to “Article 1(5) land” as such, but lists only land within a World Heritage site, a National Park, an AONB, or the Broads, and therefore omits land within a Conservation Area. The restriction in the specified areas is also amended, so that the limit, which now relates to a cumulative total of 10 sq m in area, only applies to the aggregate of buildings, enclosures, pools and containers situated more than 20 metres from any wall of the dwellinghouse.
On the other hand, paragraph E.3 does refer to “Article 1(5) land”, so this paragraph does still include Conservation Areas. This precludes development under Class E if any part of the building, enclosure, pool or container would be situated on land between a wall forming a side elevation of the dwellinghouse and the boundary of the curtilage of the dwellinghouse.
Incidentally, I have deliberately omitted one of the categories listed above under the definition of “Article 1(5) land”. This is “an area specified by the Secretary of State and the Minister of Agriculture , Fisheries and Food for the purposes of section 41(3) of the Wildlife and Countryside Act 1981” (which relates to the enhancement and protection of the natural beauty and amenity of the countryside). David Brock and I were wondering a few weeks back whether any such areas had ever been specified under that section, so I fired off an email to both DEFRA and De-CLoG. DEFRA hadn’t a clue, and De-CLoG never replied! So your guess is as good as mine, although I strongly suspect that no such areas have ever been specified.
As noted above, the current version (in England) of Part 1, Class E does contain a prohibition, in the current paragraph E.1(f), of permitted development under this class if the building, enclosure, pool or container would be situated within the curtilage of a listed building.
Just to add to the apparent anomalies in the legislation, there has never been a prohibition in the case of a listed building (either under the pre-2008 or the post-2008 version of Part 1) on permitted development consisting of an addition or alteration to the roof of a dwellinghouse (under Part 1, Class B). So, subject to the limitations and conditions set out in Class B, roof extensions or alterations to such a house would be permitted development, even if it is a listed building. Again, this apparent omission is no doubt explained by the fact that such an extension or alteration to the roof of the listed building would amount to an alteration affecting its character as such, so that any necessary control over development of this kind would be adequately provided by the requirement for Listed Building Consent.
There is one important proviso in relation to permitted development under Part 1, Class B. Within "Article 1(5) land" (which includes a Conservation Area), additions or alterations to the roof are entirely precluded.
The train of thought that led to my writing this note was prompted by an enquiry that raised a slightly different point. This related to a situation, which I imagine is not uncommon, where a building has been listed, and land within its curtilage has then been sold off and one or more new houses have been built (with planning permission) on that former curtilage land.
So far as the extent of the listing is concerned, the relevant 'curtilage' for this purpose is the curtilage of the building that has been listed at the time of its original listing. However, as I have repeatedly pointed out, this would apply only to that part of the original garden land that was genuinely within the curtilage of the listed building at that time. As readers will have seen from the various notes on 'curtilage' in this blog, it cannot automatically be assumed that the whole of the former garden of the listed building was in fact within its curtilage. This will depend on the precise manner in which the land that now forms the separate property or properties was used at the time of the original listing of the neighbouring dwelling and its functional relationship with that dwelling at that time.
If the land now occupied by the new house or houses was within the curtilage of the listed building at the time of its original listing, then the listing extends to any object or structure within that original curtilage which had formed part of the land since before July 1, 1948. Listed building consent would be required for the demolition or alteration of any such object or structure (if that alteration would affect the character of the neighbouring dwelling as a listed building). However, the listing would not extend to any building, structure or other object on the land that was not there before July 1, 1948.
There is, however, some confusion as to the effect of land now separated from the listed building having been within the curtilage of that listed building at the time of listing, when one comes to consider the exercise of Permitted Development rights. For the reasons I have explained, in England at least, permitted development rights under Part 1, Classes A and B would not be precluded in respect of the new property or properties, even if they are still regarded as being within the curtilage of the listed building.
However, as noted above, development is not permitted by Class E if the building, enclosure, pool or container would be situated within the curtilage of a listed building. It is very much open to argument as to whether this prohibition applies only to the (reduced) curtilage of the listed building as it exists at the time when the permitted development is carried out, or whether it applies to the whole of the curtilage of the listed building at the time of its original listing. The latter would, in my view, throw up some obvious anomalies, but it would require some careful investigation and cogitation before one could be confident of coming up with an answer. It looks very much like a piece of litigation waiting to happen!
There is just one final point I should mention. Before getting stuck in to a detailed consideration of the provisions of the GPDO, it should not be forgotten that in these sort of cases there is quite often a condition attached to the planning permission for the erection of the new property or properties which will have removed permitted development rights under Part 1 in any event. If such a condition was imposed, the precise effect of the GPDO is entirely academic. Such conditions are not always justified and can sometimes be removed upon application to the local planning authority (or on appeal, if necessary, in the event of refusal – having regard to Circular 11/95). It is at that point that you would then have to consider whether the ‘curtilage’ issue might still prevent permitted development.
© MARTIN H GOODALL