C O N T E X T 9 7 : N O V E M B E R 2 0 0 6 LEGAL BRIEFING The extent of listing (3) In the third and final extract from his new book, Charles Mynors looks at cases relating to the extent of a building’s curtilage and summarises the position on the extent of a listed building. Objects and structures in the curtilage It is not surprising that, as noted in the previous article (Context 96, September 2006), a listed building is defined to include objects and structures fixed to the building. They are, after all, very obviously part of the building. It is perhaps less immediately apparent that the listing extends to any object (such as a statue or birdbath) or structure (such as a garden pavilion or wall) in the vicinity of the building. This protection obviously makes sense in the case of, for example, a large country house whose grounds contain numerous temples, statues, grottoes and so on; they may indeed in some cases be one of the reasons, or indeed the principal reason, why the building was listed. On the other hand, they are still affected by the restrictions involved in the listing process even if they are of no interest whatever (such as a decaying garden shed). As with fixtures, it should be borne in mind that listed building consent would be needed for their alteration or removal only if the proposed works would affect the character of the listed building as a whole. However, a line has to be drawn somewhere. Particularly in the countryside, listed buildings may be associated with large landholdings, sometimes extending to many hundreds of hectares. It would be ridiculous if all objects and structures within them were to be theoretically protected. The planning Acts accordingly have (since 1968) granted protection to ‘any object or structure within the curtilage of the building which, although not fixed to the building, forms part of the land and has done so since before July 1, 1948’. The listing thus extends to pre-1948 objects and structures within the curtilage of the building actually included in the list. In principle, the dictionary definition of ‘curtilage’ is ‘an area of land attached to a house and forming one enclosure with it’. It derives from the Old French word courtil, meaning ‘small court’. It is a conveyancing term often used in property transactions; and it turns up in various modern statutes. Although the use of the word is thus relatively widespread (at least in legal contexts), it may in practice sometimes be far from straightforward to determine what is the curtilage of a particular building – or, of greater significance, whether one structure is in the curtilage of another. Although much is sometimes made of this, when considering whether an ancillary object or structure is to be taken as being protected by the listing of a nearby building, it is often more important to consider whether the associated structure is ‘ancillary’ to the listed building (considered in the first of these three articles, Context 95, July 2006). This is certainly what emerges from the decision of the House of Lords in Debenhams and those of the High Court in Watts, ex parte Bellamy and Morris (considered in the second article, Context 96, September 2006). Nevertheless, it is in some instances necessary to consider the definition of curtilage.There are numerous decided cases dealing with this, some in contexts other than specifically relating to listed buildings, and those referred to here are only a selection. This discussion below accordingly considers, first, the cases specifically relating to the curtilage of listed buildings, then the decisions relating to the extent of a curtilage, decided in the context of permitted development rights and under other statutes. Finally, there is a brief look at some of the decisions from other areas of law, referred to in the statutory cases. The extent of curtilage: listed buildings cases The principal case dealing explicitly with the definition of curtilage in the context of listed buildings isAttorneyGeneral v Calderdale BC, relating to Nutclough Mill at Hebden Bridge in West Yorkshire (see the first article for a diagram showing the facts of this case). It had been conceded that buildings in different ownerships might be within the same curtilage; but he had contended (rightly, in the view of the court) that they fell less easily within the same curtilage if they were in different ownerships. It had also been submitted that less attention should be paid to title and division of ownership, otherwise listed building control could easily be evaded by colourable transfers of title; and more weight should be given to historical association and proximity. In its judgment, the Court of Appeal referred to a number of decisions (including Methuen-Campbell v Walters, Pilbrow v Vestry of the Parish of St Leonard, Shoreditch andVestry of St Martin’s in the Fields v Bird), showing that different facts might lead to different conclusions, and indeed that the same facts might lead to different judicial opinions. However, there was at the end of the argument before the court agreement that: ‘three factors had to be taken into account in deciding whether a structure (or object) was within the meaning of [s 1(5)], whatever might be the strict conveyancing interpretation of the ancient and somewhat obscure word ‘curtilage’. They are: 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 thus held that the terrace had definitely been within the curtilage of the mill when they were
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