LAW & PRACTICE HA-HA UPDATE Watson-Smythe v Secretary of State and Cherwell District Council [Appeal No/QBCOF/9111337/DJ Readers may recall the case concerning the ha-ha at North Aston Hall, Oxfordshire (Grade II) reported by Charles Mynors in Context 33 (March 1992 p 16). Essentially, the case concerned a curtilage structure as defined under the (then) Section 54(9) of the 1971 Town & Country Planning Acc. The lengthy planning history began in 1986 and included three refusals of listed building consent and planning permission for the demolition and infilling of the ha-ha, the dismissal of an appeal determined by written representations, and the dismissal of a further appeal against enforcement action heard at Public Inquiry. A subsequent appeal to the High Court, presided over by Sir Frank Layfield, was dismissed. The final instalment of the saga was concluded in the Court of Appeal on 27 January 1993 before the Master of the Rolls, Lord Justice McCowan and Lord Justice Hirst, who determined that the appeal against the High Court ruling be dismissed with costs, the appellant not being present or represented. This ruling brought to an end six gruelling years of litigation which eventually yielded fruit: (1) confirmation of the ha-ha as a curtilage listed building/structure together with a requirement to reinstate it (2) recognition of the ha-ha as a consciously designed structure within the wider landscaped setting of North Aston Hall. The case highlights the grey area encountered in defining curtilage - indeed Sir Frank Layfield in coming to his judgement in the High Court commented that: "It is well known that defining the meaning and extent of the word 'curtilage' is one that has given considerable difficulties in many branches of the law." The High Court judgement of 1 October 1991 is worth reading for the reexamination of case-law (eg Calderdale, Debenhams, Dyer v Dorset et al) in the definition of curtilage. Experience in the North Aston Case demonstrates the lack of clear-cut protection for curtilage listed structures. The growth in the recognition of the historic park, garden or landscape as important to the wider setting of CONTEXT 44 North Aston Hall Ha-Ha. Ha-Ha reinstated to the condition at the time of listing. The wall was erectedunder permitted development prior to the designation of North Aston ConservationArea. country houses undoubtedly helps to provide a rationale and context for such structures. national or local registers of historic parks, gardens and landscapes are important non-statutory tools. Government advice and guidance, particularly PPG15 and PPGJ6, together with Structure and Local Plan policies, can all play their part. I firmly believe, however, that the only sure route is to list structures like hahas, mounds, icehouses and eye-catchers individually - they are too vital an ingredient of the English scene to leave to chance. Sally Stradling, Conservation Officer, Cherwell District Council. 25 •
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