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

61 comments:

passerby said...

I just discovered this blog for the first time yesterday - lot's of great food for thought!

With regard to the questions asked above, those parentheses at the end of the first paragraph are sneaky - because surely the whole case is undermined by E(f)? In other words, the answer to the question (minus the parentheses) is 'no', right?

Martin H Goodall LARTPI said...

We are talking here about extensions to a dwellinghouse under Part 1, Class A. Under the version of Part 1, as amended in October 2008, an extension to a listed building is now permitted development, provided it complies with the conditions and limitations set out in Class A. In most cases, however, it will require Listed Building Consent. The reference in the original (pre-October 2008) wording of Class A to development that would “consist of or include the erection of a building” was frankly inappropriate and misleading in this context.

By contrast, the erection of a free-standing building within the curtilage of a listed building, which falls within Part 1, Class E (not Class A) is definitely not permitted development, because the Order specifically precludes this. I hope that makes the position clear.

passerby said...

Yes - I think so, but to me it does seem arbitrary - the idea that a separate building (a studio or summerhouse in the backyard of a grade II listed building, say) has the potential to do greater harm to that listed building than all manner of extensions. And likewise for the rules on enforcement for which there is no 4-year limitation. That's probably fair enough for grade I, but grade II? Seems excessive to me!

confused chris said...

I would be so glad if someone could clarify this point for me.
I have a house which is set in the curtilage of a listed building. I have been told by the council that I need Listed Building consent to remove an internal wall. My house itself is not listed and this alteration would have no effect on the character of the listed building so why do I need Listed Building Consent, or maybe I don't!

Martin H Goodall LARTPI said...

In answer to “Confused Chris”, Listed Building Consent is only required if (a) the house in which Chris lives is within an area that was genuinely within the curtilage of the listed building at the time when that other building was originally listed and (b) Chris’s house was itself in existence prior to 1 July 1948. Unless both of those criteria are met, Chris’s house is not itself listed, and it follows that Listed Building Consent is not required for any alterations to that building either internally or externally.

The removal of an internal wall in Chris’s house does not amount to development (see section 55(2)(a) of the 1990 Act) and so it does not require planning permission. As regards any external alterations to Chris’s house, this house will have its own curtilage, and so it will enjoy the usual permitted development rights (unless these have removed by condition or by an Article 4 direction). If planning permission is required for any external works, the desirability of preserving the setting of the nearby listed building will be a material consideration in the determination of that planning application, but it will not give rise to the need for Listed Building Consent.

The Gardeners said...

I live in a Grade II* property, on 0.5 of an acre, in a remote rural hamlet of 12 dwellings. My wife and I are both keen gardeners and wish to erect an 8'x6' wooden shed and a glasshouse of the same dimensions within the curtilage. Neither of these buildings would be visible from either the house, the road or our single neighbour's property, by virtue of evergreen hedging. Both of these buildings would be removable. Do we require Local Planning and Listed Building Consent to erect them? If not, is there a maximum size/volume above which LPC/LBC is required?

Martin H Goodall LARTPI said...

By virtue of paragraph E.1(f) in Part 1 of the Second Schedule to the General Permitted Development Order, the development that would normally be permitted by Class E of Part 1 (comprising any free-standing building or enclosure, swimming or other pool) is not permitted if it would be situated within the curtilage of a listed building. This applies to the provision of a building or structure of any size.

So The Gardeners will have to apply for planning permission for any buildings or structures they wish to erect within the garden of their Grade II* property. However, Listed Building Consent will only be required if the work involved would include any alteration to the fabric of the house itself (or of any structure in its curtilage that was there before 1 July 1948) which would affect the character of the listed building. So new buildings or structures which are not tied in to the fabric of the listed building (or to any boundary wall, or other building within the curtilage, that is more than 65 years old) will not require Listed Building Consent, although the effect of the proposed development on the setting of the listed building will be a factor to be taken into account in the determination of the planning application.

This differs from the position under Part 1, Class A (extension or alteration of the house itself), where it would be permitted development, but in that case Listed Building Consent would probably be required, becuase such an alteration to the listed building would be very likely to affect its character.

Elizabeth said...

Thank you for your website which is the only place I have been able to get helpful information about listed curtilage property. I live in a barn conversion which is next door (but not attached) to a grade II listed farmhouse. Altogether there are 7 converted farm buildings in the group. The outbuildings were sold by the farmer to a builder in June 1986 and planning permission was granted in June 1987. The farm house was not listed until October 1987. Every one of my neighbours has tried to get planning permision for a small extension or conservatory but has been turned down on the grounds that the converted barns are all listed curtilage properties. Can this be true if the farm was listed after they were sold for development?

Martin H Goodall LARTPI said...

In answer to Elizabeth’s question, this sounds very similar to a previous query where I suggested that whilst the converted farm buildings were almost certainly not within the curtilage of the listed farmhouse, there may well have been conditions imposed on the planning permission for their conversion which removed permitted development rights, so that planning permission is required even for minor domestic extensions.

I also suspect that it may have been the effect of the proposed extensions on the setting of the nearby listed building that was the real reason for the applications being refused. If it was felt that the council’s concerns were unjustified the matter could have been tested by appealing against the refusal of planning permission. Such appeals would be subject to the fast-track householder appeals process, with its reduced appeal period (12 weeks from the date of refusal).

Anonymous said...

7/8/12 our next door neighbours were granted permission for 'The outbuilding hereby approved shall be used only as an ancillary use incidental to the enjoyment of the dwelling house known as (address)' to be erected within the curtilage (garden) of a grade II listed building in a conservation area. No listed building consent has been applied for. The outbuilding has been used for guesthouse letting since 2/6/2013. Application now in (possibly as a result of enforcement) for change of use to 'mixed residential and holiday rental'. 1. Should LBC have been applied for? 2. I am confused about the ancillary/incidental phrasing. I can't find clarity on either of these anywhere.

Martin H Goodall LARTPI said...

Lack of time prevents a detailed reply to this latest query. If the outbuilding did not physically affect the fabric of the listed building or of any existing outbuilding or boundary wall that was there before 1 July 1948, no LBC was required.

Whether the outbuilding was used in the manner prescribed in the planning permission is a matter of fact and degree. ‘Ancillary’ and ‘incidental’ do not mean exactly the same thing, but as this was a planning permission (as distinct from permitted development under the GPDO) the rather more generous interpretation of ‘incidental’ adopted in the Whitehead case might well have applied to the use of the outbuilding.

However, it seems that this may be academic, as an application is now being made for a change of use to a mixed use for residential and holiday rental. No LBC application is needed in this connection.

Mike said...

Blessings!

I could not make head or tail of whether there is still a 10 cu m restriction on a shed in a conservation area. It's not shown in my local authority's list of conditions or that given on the Planning Portal.

But Googling around reveals umpteen councils and shed firms saying that there is such a restriction.

I emailed the local authority planning department days ago but no reply. I suspect they don't know either.

Martin H Goodall LARTPI said...

In answer to Mike, the rule is set out in paragraph E.2 of Class E in Part 1 of the Second Schedule to the GPDO.

The 10 sq m restriction applies only if any part of the land within the curtilage is in a World Heritage Site, National Park, AONB or the Norfolk Broads. It does not apply in a conservation area. It is a point that is easily overlooked, because those of us dealing with these matters are so accustomed to thinking in terms of “Article 1(5) land” (which does include conservation areas). However, paragraph E.2 does not refer to “Article 1(5) land”. It sets out an exhaustive list, and conservation areas are not included.

Even in the areas that are specified in paragraph E2, the 10 sq m floor area limit applies only if the outbuilding is more than 20 metres from any wall of the dwellinghouse. But if it is within 20 metres of the house, then this limit does not apply at all, even in these areas.

The Frog said...

Martin, Have come across your excellent website and blog whilst researching how to object to a development which replaces a single story property with two double story properties adjacent to a listed building which will seriously impact the public's view of that listed building and the buildings overall setting. Understand tis is not a curtilage development but actually is within yards of the listed building and the construction is considerably nearer to the one being demolished. Both plots and properties are also in a conservation area. Any more thoughts ? Regards and keep blogging - The Frog

Martin H Goodall LARTPI said...

In answer to The Frog, this is a development which is likely to affect the setting of the listed building. (It does not matter whether or not it is within the curtilage of the listed building.)

Section 66 of the Listed Buildings Act requires the LPA to have special regard to the desirability of preserving the building’s setting and so this is clearly going to be an important material consideration in this case.

There is a similar requirement under section 72 of the Act to pay special attention to the desirability of preserving or enhancing the character or appearance of the conservation area. So this, too, is likely to be an important material consideration in the present case.

Objections to the proposal should address both of these points.

Harris said...

Martin,

Thanks for your excellent Website. Its the best place to find out information on curtilage listing law.
Would you be able to help me answer this question..

I own a small stone building that was once (pre 1930s) ancillary to a large house.
The large house is now listed grade 2*. (1984) This house is the Principle Building

My LPA consider my property to be curtilage listed because it was once within its grounds.

At the point at which the Main house was listed our property was ruinous and completely inaccessible. (Pics available)
It was however in the same ownership but was certainly not within the then curtilage of the main house (a School House at the time) or was it in any way ancillary at the point of listing given its ruinous and completely cut off and over grown location.

Do I have a good case to argue this curtilage listing?

With all best

Harris

Alison said...

I own a listed Grade II farmhouse with old stables attached and old barn opposite. The farm part whch includes the old barn was sold off and permission granted to develop an old brick granary for use as house. The condition was that the modern dutch barn and ancillary buildings was demolished. A few days ago a large mobile home was delivered within 20 or so meters of old barn and my boundary fence. The council has not received planning application but enforcement officer will come to check. He briefly told me that a mobile home within a garden was permitted. Is that correct?

Martin H Goodall LARTPI said...

Regrettably, time does not permit me to discuss the point raised by Alison, 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.

Martin H Goodall LARTPI said...

Similarly, time does not permit me to discuss the point raised by Harris. This again 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.

Phil D said...

On the subject of Class E (f), the wording is not clear as to how PD rights apply to alterations to existing non-curtilage listed outbuildings set within the curtilage of a listed building? Class E notes buildings that "would" .... I read this future tense to mean buildings not yet constructed, not buildings already in existence.

Martin H Goodall LARTPI said...

In response to Phil D, Class E includes not only the provision of outbuildings (etc.) but also the maintenance, improvement or other alteration of such a building, or enclosure. So the rule under paragraph E(f) applies to alterations or extensions of curtilage buildings in the same way as it does to their original construction. If the outbuilding is within the curtilage of a listed building, it cannot be maintained, improved or altered under Part 1, Class E.

So far as maintenance is concerned, I am sure that the use of this word is not intended to preclude ordinary maintenance or repairs; I take it to mean the sort of work that would affect the character of the listed building (including its curtilage).

John said...

Martin

So I understand this. Class E within the curtilage of a Listed Building is not PD. Understood.

But if I erect a garden shed, then one presumes it becomes lawful in 4 years if it is not attached to the listed building (i.e where LBC would be required).

This is a potentially big loophole (though quite why you should need PP for a small garden shed beats me), but seems correct.

Or does the 10 yr rule apply for this Class E outbuilding to become lawful?

John

Martin H Goodall LARTPI said...

In answer to John, the 4-year rule applies. The outbuilding will become lawful if no enforcement action is taken within 4 years after it is substantially completed. The fact that it is within the curtilage of a listed building makes no difference to the operation of the 4-year rule. If the outbuilding is not attached to the listed building or to a boundary wall, etc., Listed Building Consent is not required. So operation of the 4-year rule is unaffected in such circumstances.

passerby said...

I think John's point is a really interesting one - and (I'm embarassed to say) not something that had occurred to me before! Hm, food for thought!

Anonymous said...

Hello Martin my query is similar to one above. My house is not listed nor in a conservation area however it does sit next door to a listed building. They have been 2 discrete properties for 200 years, mine has never been within the curtilage of the listed building it has just 'escaped' being listed. I have recently managed to gain PP for an extension to my property. The conservation officer, when consulted, commented, (didn't object), that the plans would harm the setting of the listed building. The planning officer was fairly on side and approved under delegated powers as there were no formal objections. I would now like to put an outbuilding in the garden, I am happy that I can meet the PD parameters but am unsure on the setting of a listed building point and therefore whether to proceed without submitting an application to the planners? Any advice would be most welcomed.Thanks.

Martin H Goodall LARTPI said...

Where planning permission is required, the effect of the development on the setting of any nearby listed building, even some distance away, will always be a material consideration if the proposed development will be seen in any view of the listed building. However, no question regarding the setting of the listed building arises where the development in question is permitted development. In such a case, however, a careful check should be made to ensure that permitted development rights have not been removed (e.g. by a condition attached to any previous planning permission).

Anonymous said...

Dear Martin. Your blog - What a find! Thank you for giving your time so generously on these obscure but important legal conundrums. If there is someone who knows the answer to this one it will certainly be you.

Tudor farmhouse with no less than 4 PD's granted 2011 extant but not started; some attached, some within curtilage. Following a planning application to demolish most of the farmhouse, English Heritage have now listed Grade 2(2015), two thirds of the farmhouse (excluding a modern wing). I wondered what your thoughts were on whether the recent listing means the extant PD's now have to apply for LBC to be implemented, or are they automatically cancelled?

Martin H Goodall LARTPI said...

I am not sure that I understand what my anonymous correspondent means by ”PD’s”. They date from 2011, so we are not talking here about prior approval of large extensions that are intended to be carried out as Permitted Development (the provisions for which did not come into effect until 2013). If my correspondent is referring to actual planning permissions, I do not understand how these can be “extant but not started”, unless they were outline permissions in respect of which applications for the approval of all reserved matters were submitted within the usual 3-year time limit, and the 2-year time limit within which to implement the permission after approval of the last of the reserved matters has not yet expired. If they were full permissions they have probably expired already.

As development has not yet commenced, it would seem that Listed Building Consent would now be required before any works (including those covered by the planning permissions) could be carried out, if these would affect the character of the building as a listed building. In fact, even if development authorised by planning permission or by the GPDO was already under way, Listed Building Consent would be required for any works carried out after the date of the listing, but not for those works that had been done before the listing took effect. The effect of this might be anomalous in terms of works that had been commenced but not completed, but this is an inevitable consequence of the fact that the system of listed building control is entirely separate from the development control process, notwithstanding that they are both administered by the local planning authority.

If in doubt, it is now possible to apply for a certificate as to the lawfulness of the proposed works, i.e. as to whether they require Listed Building Consent, but I really don’t think there is much doubt that that will require such consent.

Al said...

My home is a semi-detached stone cottage, attached at one end to a Listed Grade II larger property. The question of whether the house is curtilage listed has reared its ugly head....
We wrote to the Council Planning/Conservation officer to establish whether it was, and they have said that they are not able to confirm this, which leaves me no better off...
How can I definitively establish this, and who can i go to to make the ruling, the LPA or English Heritage..?
We made the case with the Council that the listing of the adjacent house was in Oct '66, and we have on record that planning permission for a front porch to our house was granted in 1968, that has no reference to Listed Building Consent. Surely if the property was deemed Curtilage Listed a Listed Building Consent for this porch would have been required?
Any pointers would be greatly received, thanks Al.

Martin H Goodall LARTPI said...

This question cannot be properly answered without a full knowledge of all the surrounding circumstances. The determining factor is the functional relationship (if any)of the cottage to the larger building at the time of listing. (See the post on this topic elsewhere in this blog.)

passerby said...

I have such a murky conundrum it probably requires formal instruction - but just in case there's a simple resolution, I'll chance my arm:

Prior Approval is sought for an office to residential conversion.

The case property is adjacent to a (non-resi) listed building.

The listed building was listed in 1952.

The case property was erected within the curtilage of the listed building in 1956, and remained within that curtilage until 1987, when it was sold off.

Am I correct in thinking that the case property is no longer part of the curtilage of the listed building - for Prior Approval purposes?

Martin H Goodall LARTPI said...

As passer-by observes, this really requires proper professional advice in response to specific instructions.

A lot turns on the precise identification of the curtilage of the listed building at the date of first listing.

KEYSTONE LAW's Planning Law Team may well be able to help if we were to be instructed.

Martin H Goodall LARTPI said...

The definition of ‘curtilage’ is the same for all buildings, whether or not they are dwellings. See the form of words used in Sinclair Lockhart’s Trustees. Although most of the practical examples relate to the domestic curtilage of houses, this does not mean that the rules (such as they are) apply only to houses.

Martin H Goodall LARTPI said...

Unfortunately, the query to which the last comment was intended as a reply was accidentally deleted, and cannot be retrieved. The enquirer was asking about the definition of 'curtliage' as it applies to buildings other than houses.

Charlie Radclyffe said...

As ever, a superb post Mr Goodall.

As of today - 14th January 2016 - can someone living in a listed building claim permitted development rights to erect an outbuilding under 30 square metres in area (and with some other restrictions on design) on a piece of land within the same planning unit as the listed building but outside the curtilage of the listed building?

Would they hence be entitled to erect such a building without applying for listed building consent nor planning permission.

The house in question is not in a National Park, Conservation Area, World Heritage Site nor any of the other exceptional areas re article 4 directions and the such-like.

Chris Neale said...

Dear Martin
I am dealing with some works to a listed farmhouse and have obtained listed consent for external and internal alteration and repair works, along with the construction of a new garage within the listed curtilage. All well and good but client would now like to construct a new free-standing garden wall within the curtilage. This would not be fixed to any listed or curtilage listed structures and would not be more than 2m high. If I read the available guidance correctly it would seem, strangely, that LB consent is not required as the wall will not attach to a listed structure but Planning permission is as PD rights are expressly removed for any curtilage works. Am I correct?

Adam Preece said...

Very interesting post (and site), Martin. In your view, can a building permitted under the GPDO (say, a garden room below the floor area and wave height thresholds) now be built in the garden of a listed building with neither planning nor listed building consent?

Martin H Goodall LARTPI said...

In reply to Adam Preece's query, the position in relation to Part 1, Class A remains as stated in the article above. Subject to the relvant limitations and conditions, the enlargement, improvement or other alteration of a dwellinghouse is permitted development even if the dwelling is a listed building. However, as I have pointed out, such works would almost certainly require Listed Building Consent before they can be carried out.

The position in relation to Part 1, Class E also remains as stated in this article. Development comprising the provision within the curtilage of the dwellinghouse of any building or enclosure, swimming or other pool required for a purpose incidental to the enjoyment of the dwellinghouse as such, or the maintenance, improvement or other alteration of such a building or enclosure, or the provision of a container used for domestic heating purposes for the storage of oil or liquid petroleum gas, is not permitted by Class E of Part 1 if the building, enclosure, pool or container would be situated within the curtilage of a listed building.

In respect of an unlisted building in a Conservation Area, the enlargement, improvement or other alteration of a dwellinghouse is permitted development under Part 1, Class A, even in a Conservation Area, except that in this case development is not permitted by Class A if :
(a) it would consist of or include the cladding of any part of the exterior of the dwellinghouse
with stone, artificial stone, pebble dash, render, timber, plastic or tiles;
(b) the enlarged part of the dwellinghouse would extend beyond a wall forming a side elevation of the original dwellinghouse; or
(c) the enlarged part of the dwellinghouse would have more than a single storey and extend beyond the rear wall of the original dwellinghouse.

In the case of any land within the curtilage of the dwellinghouse which is in a Conservation Area, development is not permitted by 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.

I have not had time to check if the position in a Conservation Area now differs from the position at the time this article was written (more than 5 years ago); I have simply stated in this reply the current position under the GPDO 2015.

passerby said...

I think this is worthy of a post in its own right. I can't see that LBC would be required for a detached structure. However listed buildings are very often within conservation areas, which is why planning permission is so often required.

Martin H Goodall LARTPI said...

My slightly belated answer to Chris Neale’s question (20 January) is “Yes.” The sort of issue that will be relevant to the determination of a planning application for the wall is its effect on the setting of the listed building – see section 66 of the Listed Buildings Act.

Martin H Goodall LARTPI said...

Just to clarify my last reply. We are looking here at Part 2 (not Part 1), but the same rule applies under paragraph A.1(d) of Part 2. However, the use of the word “surrounding” in that paragraph opens up some possible scope for argument.

Martin H Goodall LARTPI said...

This is a rather late answer to Charlie Radclyffe’s query of 14 January. Permitted development under Part 1 can only be carried out within the curtilage of a dwellinghouse. So the answer to Charlie’s question is “No.”

2 star problem said...

I live in 2* georgian house with large kitchen garden and outbuildings. The house and outbuildings, gates and wall tothe road are all mentioned in the listing. The kitchen garden walls (which include an interesting gate archway)are not mentioned. however, the whole thing is all within the village conservation area. We are conidering building a house in the kitchen garden. Will this be deemed as 'within the curtilage of a listed building'? in which case more stringent design standards would apply?

Martin H Goodall LARTPI said...

As “2-star problem” has indicated, the development they wish to carry out requires planning permission. It is therefore irrelevant whether or not the proposed development is within the curtilage of the listed building. Section 66 of the Listed Buildings Act provides that where development affects a listed building or its setting the LPA must have special regard to the desirability of preserving the building or its setting.

The setting of a listed building extends well beyond its curtilage. It cannot be precisely defined; it is a question of judgment in each case. If (as seems quite probable) the development in question would affect the setting of the listed building in some way, section 66 will come into play. The grading of the listing (in this case 2*) is undoubtedly a factor in the practicval application of section 66. Even greater care needs to be taken in relation to the setting of such a building, and so very stringent design standards are likely to be applied in such a case.

It is not just a question of the precise design details of the proposed development, but also extends to its location, bulk and massing in relation to the listed building. Even the most exquisitely designed development might potentially have an adverse effect of the setting of the listed building which would make it unacceptable in that context.

passerby said...

Martin, 44 comments in this thread alone - I'm already saving up to buy your NEXT book!

So, let's see if I've been paying attention:
- 2-star problem's project requires planning permission because no development is allowed under the GPDO within the curtilage of a listed building.
- It doesn't require LBC because it doesn't alter the fabric of the listed building or structures (including walls) within its curtilage
- If it wasn't within the curtilage of a listed building, it would still require permission because it's a house, and because it's in a conservation area.
- If it wasn't in a conservation area, it would still require planning permission because it's a house.
- If it wasn't a house but a detached orangery, say, it would still require planning permission - because it's in a conservation area.
OK, I'm still confused on the 10m³ rule.

Martin H Goodall LARTPI said...

In light of Passer-by’s comment, let’s be clear what I was talking about in the blog post above. I was considering permitted development under (1) Part 1, Class A, comprising the enlargement, improvement or other alteration of a dwellinghouse or (2) Part 1, Class E, comprising the provision within the curtilage of the dwellinghouse of various types of building, enclosure, pool or container, and which is located within the curtilage of either (a) a listed building or (b) any building (whether or not it is a listed building)that is in a conservation area.

As I pointed out in the original blog post, permitted development under Part 1, Class A is not precluded where the dwellinghouse is a listed building (although LBC would be required for such development in most cases).

Development is not permitted by Part 1, Class A, in the case of a dwellinghouse within a conservation area, if it would consist of or include the cladding of any part of the exterior of the dwellinghouse with stone, artificial stone, pebble dash, render, timber, plastic or tiles; or if the extension would extend beyond a wall forming a side elevation of the original dwellinghouse; or if the enlarged part of the dwellinghouse would have more than a single storey and would also extend beyond the rear wall of the original dwellinghouse.

Development is not permitted by Part 1, Class E, if the building, enclosure, pool or container would be situated within the curtilage of a listed building.

In the case of an unlisted dwellinghouse in a conservation area, development is not permitted by Part 1, 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.

These are the only restrictions applying either to listed buildings or to buildings within a conservation area [but there is also a restriction under Class E where the property is situated in an AONB, the Broads, a National Park, or a World Heritage Site. In those cases development is not permitted by Class E if the total area of ground covered by buildings, enclosures, pools and containers situated more than 20 metres from any wall of the dwellinghouse would exceed 10 square metres.]

As explained in the blog post above, the old 10 cu m limitation on permitted development under Part 1, Class E no longer applies. The revised rules outlined in this blog post have applied in England since October 2008.

The essential point of the previous query (from “2 –star problem”), dealt with in my reply, related to the application of section 66 of the Listed Buildings Act, which operates on the determination of a planning application in respect of a development which will or may affect the setting of a listed building. Some of the cases that have come before the courts in the past year or two have demonstrated that such development (if it is big enough – e.g. a large wind farm) can affect the setting of listed buildings some distance away.

Frank said...

Hello

I am posting this as comment as I cannot find a new post box.

My property is grade 2 listed because of a small stone barn connected to the extended property built in 1988, the barn portion is now a kitchen, and extends to about 30% of the property.

I need to extend the chimney stack 6 courses on the new build to comply with Hetas regs for thatched buildings. I have applied for listed building approval, but do I need it.

Martin H Goodall LARTPI said...

There is a legal requirement to apply for Listed Building Consent in respect of any works for the alteration or extension of a listed building in any manner which would affect its character as a building of special architectural or historical interest. It is a matter of judgement as to whether any particular alteration or extension would affect the building’s character, and so this query could be answered only on the basis of professional instructions after a site inspection and a careful consideration of all the relevant facts.

Scotland said...

I've been reading up with great interest on Curtilage issues and Listing Buildings.

We would like to put a Swimming Pool on an area of land near (c.30 metres away) our Grade II listed property.

The land I believe used to me in a field but has now been fenced in with a pool/pond and is part of our garden. I don't know when for certain this was done but think it was around 8-12 years ago from Satellite images. I don't know whether permission for this was sought and assume this is another issue for which if it wasn't we'll hopefully be able to rely on the 10 year rule for Change of Use.

Our house also sits on a Scheduled Monument which in effect is the boundary of an old moated site.

My assumption reading your comments and blog is as follows:

1) Our Listed Curtilage is most likely to be the boundary of the Scheduled Monument. This is because it contains the main house and all information mentioned in the listing details is in this area. It doesn't include some outbuildings which aren't mentioned in the listing though.
2) If the above (1) is deemed incorrect because a conservation officer might argue the formal gardens/lawns and stables/outbuildings should be included then we would have to widen the area that we consider the Listed Curtilage.
3) Even if (2) above is the case the new swimming pool location is in an area that was a field at the point of listing in 1987 and it was a field in 1948 too. i.e. there is no evidence that it formed any formal part of the grounds of the house.

As such would I be correct to assume the proposed Swimming Pool is in the Domestic Curtilage (because it's in a part of the extended garden reclaimed from a field) but isn't in the Listed Curtilage, as it was a field at the point of listing.

As such I could argue it's within my Permitted Development Rights, although the council might seek to then prove the land didn't have change of use permission I suppose if they think the change was made in the last 10 years but not beyond that?

Martin H Goodall LARTPI said...

This query from ‘Scotland’ is a good example of the multiple issues that can arise in these cases. It does not admit of an answer here but would have to be the subject of proper professional advice. If my correspondent’s name indicates their location, I should point out that the Scottish legislation is different from the English legislation, and any legal advice would in any event have to come from solicitors qualified to practise North of the border.

New to Listed Buildings said...

Hi Martin,

I live in a converted barn next to a grade II farm house. I have found the farm house on the web listing, with architectural details on and in the house itself. There is no mention of ancillary or farm buildings. Does this mean that my barn is not curtilage listed? (it is not listed separately). Or do I need to more carefully check a physical record by application to the Council?

Thanks,

New to Listed Buildings

Martin H Goodall LARTPI said...

I have written on this topic at some length elsewhere in this blog - see “Barns near listed farmhouses” posted on Friday, 15 March 2013. The key to the question posed by “New to Listed Buildings” is the High Court judgment in R (Egerton) v. Taunton Deane BC [2008] EWHC 2752 (Admin) which is examined in detail in that article.

Bearing in mind that the blog post on which the current query has been posted is about permitted development, it should be borne in mind that PD is excluded if it is within the curtilage of a listed building, and under Part 1 it is not PD if it is outside the curtilage. So ‘heads’ they win, and ‘tails’ you lose!

Martin H Goodall LARTPI said...

Could I respectfully refer David Brown to my post of Friday 17 June (Comments & Queries). If he would like an answer to his query of 30 June, would he please email me, although this would naturally involve the payment of our professional fees. (We are reassuringly expensive!)

Kuljit Kahlon said...

Hi Martin,

Hope you can help - I am in the process of buying a detached bungalow and the property is classed as curtilage listed building. The property previously was a coach house stables to the Grade 2 listed building which is probably 100 feet away. The bungalow has replaced the coach house and is of a new build however I do not have anything on file to state when it was built. I can assure you that it is most likely around 1960 or later. The brickwork, the roof is all quite new and that a building surveyor also quoted this.

The bungalow is now a separate dwelling with fences and walls and has a separate deed and is no longer associated with the Grade 2 listed house. On the council records the 4 year rule has applied and the bungalow was granted certification of a separate dwelling back in the 1980s.

Though I can understand the building is in a curtilage area as it is on the same grounds as the Grade 2 listed house but separated. Would the bungalow be classed as curtilage listed to, and have the same restrictions as a grade 2 property?

Many thanks,
K

Martin H Goodall LARTPI said...

In response to Kuljit Kahlon’s enquiry (28 September), all one needs to do is to establish whether or not the bungalow in question was already in existence before 1 July 1948. If it really was built after that date (and this really does need to be carefully investigated), then it is not ‘curtilage listed’, by reason of the terms of section 1(5) of the Listed Buildings Act, which applies only to buildings which have formed part of the land since before 1 July 1948.

The replacement of the coach house by this bungalow would have required planning permission if it was built after 1 July 1948, and so one would need to research the council’s records to see if a planning permission can be found (possibly around 1960, as Kuljit suggests). Even if the planning permission itself has not been archived (micro-filmed, or later digitised) the planning register should have been preserved, and this might be consulted.

Modge said...

Hi Martin
Just found your blog and hope you can help. My house is Grade II listed ( 500 yrs old) as is my neighbours - we share a boundary. He is applying to build 2 new houses in his garden, 1 of which will be right on the boundary of my house and looking directly into our garden. Is this just a planning issue or does section 66 come into affect? To quote back to you from a previous answer you gave somebody ' Section 66 of the Listed Buildings Act provides that where development affects a listed building or its setting the LPA must have special regard to the desirability of preserving the building or its setting.
Can you please point me in the right direction!

Martin H Goodall LARTPI said...

Section 66 of the Listed Buildings Act is relevant whenever a development proposal is made that would affect the setting of a listed building. The facts cited suggest to me that the setting of this listed building would undoubtedly be affected, and so the Council must pay particular regard to the desirability of protecting the setting of this listed building. The Council’s attention should be drawn to this section of the Act when making any representations in repect of this application.

X1lol said...

Hi Martin-
Fairly straight forward situation here - I THINK!
We have a barn conversion built in 1976, without planning permission. It was within curtilage of a grade II listed building but was Granted separate dwelling status with an LDC and now has separate deeds. Applied for a few PD's for extension and council have refused saying it is curtilage listed and therefore listed itself. We have a signed letter from the builder of the barn- stating it was built in 1976 (listing applied in 1956) - who has the burden of proof of when a structure was built- us or the council? If no permissions were sought at the time, what evidence is there?!
Thanks

Martin H Goodall LARTPI said...

The essential question in relation to the query raised by X1lol (1 April) is whether the barn that has been converted to a dwelling was really within the curtilage of the nearby listed building in the first place. Was there a functional relationship? (i.e. Was the barn used for the same purposes as the listed building?) If the listed building is/was a farmhouse, then the Egerton case (cited in this blog post, and in previous comments) strongly suggests that it was not within the curtilage of the listed building and is not therefore “curtilage listed”.

Lauren Waterman-willis said...

Yes that's how I see it. The original structure was an agrictultural building and the time of the listing. (Therefore Covered by egerton) It was then demolished, without permission and not by us, in the 1970's and rebuilt as a dwelling, this still not curtilage listed. We have been refused planning due to green belt and then refused LDC for PD due to curtilage listing (that wasn't mentioned in the planning refusal) we have now been told to reapply for LDC (and pay again) with evidence to prove its not curtilage listed. That's why I questioned who has the burden of proof. Fed up of applying, paying, and waiting for a negative, ill informed refusal! Thanks for your conments

Martin H Goodall LARTPI said...

Referring to Lauren Waterman-Willis’ comment, the applicant for an LDC must prove the facts on which they rely “on the balance of probabilities”, but an honest statement of their knowledge is sufficient, without need of ‘corroborating’ evidence, and should be accepted unless the council has contrary evidence of their own or from others that makes the applicant’s account of the facts less than probable.