Demystifying complex planning laws surrounding listed buildings and their grounds

OUR Residential Property Manager and Yorkshire Post property correspondent, John Robson, has expert advice for homeowners living in the grounds of a listed building, in his latest Question and Answer column on all things property.

Here, he outlines the complex and strict planning law around listed building consent; when it is required and when it is not; and the degrees of separation that can make all the difference.

Question

I currently live in a converted stable block set within the curtilage (grounds) of the former farmhouse, which was Grade II listed circa 1985. The stables were converted into two coach houses in 1996 and then sold off as two separate units in 1997. Approximately two years later, a rather unsightly conservatory was added to my coach house.

Planning permission and listed building consent was obtained for the 1996 conversions but not for the conservatory addition. The question has arisen whether listed building consent required for the construction of the conservatory, and if it was can the Council insist on it being demolished?

John’s Answer

This is not an everyday issue most conveyancers have to consider. The law states, under section 1(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990 that a listed building also includes any ancillary object or structure with the curtilage of the listed building and has done so since 1 July 1948.

The law that refers to curtilage came into effect as from 1 January 1969.

Listed building consent is required for any works that affect the character of the building listed, and a building within the curtilage may have its own special historical or architectural interest.

So on the face of it, it would seem yes – Listed Building Consent would be needed for the conservatory; and because of its appearance, it would probably have been refused and demolition could be enforced.

However there are exceptions to this strict interpretation of the planning laws. These exceptions do, in part, relate to farms.

Since it is the original farmhouse that is “listed”, the outbuildings may be exempt from the planning criteria.

The farmhouse and outbuildings were clearly in the same ownership and occupation at the date of the listing in 1985 and prior to the conversion works in 1996.

However the two converted stables are now in separate ownership from the farmhouse. There are no connections between the owners of the converted stables and the farmers who have retained ownership of the listed farmhouse.

The physical separation of the listed farmhouse from the unlisted former farm buildings, and the current domestic use of the converted stables and continued part commercial use of the farmhouse, would mean the converted stables are outside the curtilage.

The approach to listed farmhouse outbuildings depends on the degree of separation of the two structures and the distinction of their now use.

There is case law known as “The Jews’ Farmhouse” case – R v Taunton Deane Borough Council, 2008. In this case, the High Court decided that a barn in a farm business use was not within the curtilage of the listed building.

The actual physical separation was a major factor as was the different uses of the buildings.

Each case is considered very carefully on its merit by the planning authorities as this part of listed building law is one which consistently causes practical problems of how to interpret the buildings within the curtilage.

Historic England has prepared guidance notes on the subject – HistoricEngland.org.uk/advice/hpg/has/listed-buildings.

The notes say that any object or structure fixed to a listed building is also treated as part of the building itself. The exception to this is if within the text of the “Listing” such areas are specifically excluded.

To conclude, the Courts dictate three factors must be considered when assessing whether a structure is within the curtilage of a listed building, namely:

· The physical layout of the listed building and associated structure

· Their ownership, both pre and post the date of the listing, and

· The use or function of the relevant buildings both historical as at the date of the listing and post the listing date

Historic England offers a service providing clarity as to the extent of statutory protection.

For more information on planning laws involving listed buildings and their estates, or if you have any general question about residential property and conveyancing, please contact John at our Harrogate office on 01423 530103 or email him at john.robson@milnerslaw.com

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