12 C O N T E X T 9 7 : N O V E M B E R 2 0 0 6 edge of the campus and divided from it by a fence, it would have rightly been held to have been within that curtilage. But those were not the relevant words, and he was quite unable to find that the house lay within the curtilage of any other college building or collection of buildings. This suggests that a subsidiary building that might have been within the curtilage of a principal building in large grounds will probably be considered to be not within that curtilage once it has been enclosed within its own curtilage. See also the decision of the Scottish Lands Tribunal in Shipman v Lothian Regional Council, dealing with the curtilage of schools in the context of similar legislation. and Barwick v Kent County Council, concerned with a house allegedly within the curtilage of a fire station. Structures forming part of the land As with objects and structures attached to the building, the first critical test is not any intrinsic worth that the object or structure may or may not possess, but whether it ‘forms part of the land’. The normal rules for distinguishing between fixtures and fittings will therefore apply. Thus greenhouses, not secured to the ground but standing by their own weight on concrete dollies, were held not to be part of the land; whereas in Holland v Hodgson a dry stone wall was held to be clearly a fixture. In the latter case, the position was summarised as follows: ‘Perhaps the true rule is, that articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless the circumstances are such as to show that they are intended to be part of the land; the onus of showing that they were so intended is on those who assert that they have ceased to be chattels; and that, on the contrary, an article which is affixed to the land even slightly is to be considered as part of the land, unless the circumstances are such as to show that it was intended all along to continue a chattel, the onus lying on those who contend it is a chattel’. In a notable borderline case, carved figures on the stairs, sculptured marble vases in the hall, a pair of marble lions at the head of a flight of garden steps and 16 stone garden seats, all of which merely rested on their own weight, were all held to be fixtures. The test was whether the items were ‘part of the architectural design... and put in there as such, as distinguished from mere ornaments to be afterwards added’. The listing does extend to structures forming part of the layout of the grounds of a building. This was considered in Watson-Smyth v Secretary of State and Cherwell DC, in the context of a ha-ha (a ditch and wall constructed so as to form a boundary to the garden of a country house while not interrupting the view of the countryside beyond). The owner of North Aston Hall (listed Grade II) had constructed a new drystone wall using stones from the wall from the ha-ha, and had then filled in the ditch. The owner appealed against the resulting listed building enforcement notice, first (unsuccessfully) to the secretary of state and then to the court. Sir Frank Layfield QC, sitting as deputy judge, appeared to accept without question the finding of the inspector that the two main elements of the ha-ha, the ditch and the wall, were integral parts of the structure, and thus that they could form part of the listed building provided that the ha-ha was within its curtilage. The decision inWatson-Smyth is clearly correct as far as it relates to the wall, and confirms that structures such as terraces, balustrades, flights of steps and so forth are structures capable of being treated as part of a listed building by virtue of section 1(5). It is less clear, however, that a ditch can be an object or structure, albeit that its construction (if it is of significant size) may involve an engineering operation. The decision should be read alongside that inCotswold DC v Secretary of State (1985), where it was held that the listing of a building did not extend to the actual ground surrounding it. Pre-1948 walls and other means of enclosure are also included in the listing, provided (as will normally be the case) that they are ancillary to a principal building and not to a building that is itself ancillary. On the other hand, a hedgebank adjoining a road in Devon was held not to be part of a listed house standing nearby: ‘The hedgebank is to be distinguished from the ha-ha in Watson-Smyth. Very often the function of a ha-ha is to define the curtilage around a hall or mansion, separating it physically, but not visually from the surrounding parkland. There is nothing to suggest that this hedgebank is contemporaneous with Prospect Lodge [the listed building]. The evidence suggests that it may be of some antiquity. It seems likely that it is an old field boundary, since it extends along the whole length of the frontage… When Prospect Lodge was built in 1820, it no doubt served to enclose the parkland that then enclosed the house, but there is nothing to suggest that the whole of that parkland should be treated as being within the Figure 8. North Aston Hall, Oxfordshire (Watson-Smyth v Secretary of State)
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