30 Charles Mynors MRTPI ARICS Barrister discusses aspects of listed building legislation, including curtilage, setting and reinstatement M' LEARNED FRIEND The extent of listing Any structure attached to a listed building or within its curtilage is subject to listed building control, by virtue ofS. 1(5) of the Planning (Listed Buildings and Conserva tion Areas) Act 1990 (formerly S. 54(9)). It is therefore obviously important to know what is the extent of the curtilage of a building, and how far the 'attachment' extends. First, then, the vexed question of ·curtilage'. Collins v Secretaiy of State [1989] EGCS 15 concerned a cottage set in four and a half acres of gardens. There were well-cut lawns near the cottage, and rough grass over the remainder of the grounds, which were largely neglected. The owner built a summer house in the rough grass (which would have been permitted development if it had been within the curtilage of the cottage), and the planning authority took enforcement action ro bring about its removal. It was held by Sir Graham Eyre QC, sitting as a deputy judge in the Queen's Bench Division, that the curtilage of a dwellinghouse must serve the purposes of the dwelling in some necessary or useful manner, and the land on which the summer house stood did not ·serve' the dwellinghouse. The cottage in this case was not listed, but the same principle would apply to determine whether or not a gazebo or garden temple, for example, in the grounds of a listed mansion were part of the listing. It thus appears that it is the character of the land, not that of the building erected on it, that determines whether or not it is within the curtilage. The related question of structures 'attached ro' a listed building was considered in Watts v Secretary of State (1990) The Times 12th November 1990. Mrs Watts purchased Bix Manor in Oxfordshire in 1977, together with barns and other buildings that were then undoubtedly within its curtilage. In 1981 she sold the Manor, the large barn and some other buildings, but retained the small barn (which she intended to convert into a separate dwelling) and an adjacent wall. In 1985 the Manor and the large barn were listed. They were described briefly in the listing, but a number of the other buildings originally within the curtilage of the Manor (including the small barn and the wall) were not mentioned. She then carried out works to insert a doorway into the wall. In upholding the appeal against the resulting enforcement notice, Sir Graham Eyre (again!) noted that, at the date oflisting, the section of wall formed part of the curtilage of a property separate from the listed building in terms of ownership and physical occupation. That property was now being put to a wholly independent use. He considered whether the section of the wall constituted a structure ancillary to a building with which it had merely been associated historically and physically at some time prior to the listing, and concluded: There would be little difficulty in finding that a wall was a structure ancillary to a listed building if at the time of listing it served the purpose of securing the building or its curtilage and was therefore an accessory to the principal building. The use of the words 'ancillary' and 'accessory' connoted a statement of the subordinate and subservient in both a functional and physical sense. At the time of listing there was no functional connection, and the section of wall did not in any sense serve the listed building. It was clearly ancillary to another, separate building and was not a structure ancillary to Bix Manor. Any other construction would result in the wall, throughout its length and however remote from Bix Manor being 'fixed' to it. These two cases limit the extent of the listing of a building, and suggest that land must 'serve the purposes of a building if it is to be within its curtilage; and a structure must be ·subservient and subordinate' to the building at the time of its listing if it is to be 'fixed' to it for the purposes of S. 1(5). The setting of a listed building R v South Herefordshire DC ex parte Felton (1989] 3 PLR 81 concerned the grant of planning permission for the erection of a potaro store near Bollitree Castle, near Ross-on-Wye. The Castle is a notable example of a mid 18th century gothic sham castle developed around an imposing house of c. 1700. It is, for listing purposes, divided into five parts - one Grade I, one Grade II*, and three Grade II. The nearest part of the store was to be some 77 m from the Castle. The question arose as to whether the new building would affect the setting of the listed building. McCowanJ. commented that: it does seem to me ... that [the officer of the planning authority] appears to think that what he has got to have regard to is whether you can see the potato store from the house. He certainly there does not appear to be appreciating that that is not the whole answer when one considers whether the setting of the listed buildings will be affected. There is, of course, to be taken inro consideration the view of the listed buildings in relation to the new building seen from other posmons, ... [Counsel for the applicant] says 'affect' must mean 'materially affect'. That may well be so, but in my judgement what is striking is that the words are not ·substantially affect the setting of a listed building'. As I say, I have got ro rely on the phorographs and the plan - in addition, of course, to the opinions that are expressed in the affidavits. I am bound to say that I am amazed that anybody could have thought that a building of the nature of the potaro srore, of the sheer bulk of the potato store, would not affect the setting of the listed buildings (pp 86, 87). CONTEXT 29
RkJQdWJsaXNoZXIy MjgyMjA=