What Is the ‘Curtilage’ of a Listed Building in Planning Law?

This is our second article on the concept of curtilage in planning law, this time with a focus on listed buildings. Under the Planning (Listed Buildings and Conservation Areas) Act 1990 (LBCA 1990), curtilage has been interpreted more broadly than in respect of buildings which are not listed, to offer greater protection to listed buildings.

The narrower approach for non-listed buildings

Away from a listed building context, it is necessary to look at whether the land claimed as the curtilage is so intimately associated with a building that it forms ‘part and parcel’ of the building. For further insight on this narrower approach, please see our first article on the concept of curtilage in planning law. That article considers how the term is used in a domestic development management context.

The broader approach for listed buildings

Cases involving listed buildings adopt a broader approach to curtilage. This distinction was explored in Hampshire County Council v Secretary of State for Environment, Food and Rural Affairs and others [2020].

In this case, the court agreed with a planning inspector that there is a broader approach to determining the extent of a curtilage in listed building control, which is based on understanding the spatial and functional relationship between the listed building and adjacent land.

This broader approach is justified because a listed building is not simply a building included in the list of buildings of special architectural or historic interest. Under section 1(5) of the LBCA, a listed building also includes (a) any object or structure fixed to the building and (b) 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 1st July 1948. Listed building control under the LBCA is designed to control the demolition, alteration, or extension of listed buildings, so construed, to protect their special architectural or historic interest. It is a criminal offence to carry out unauthorised work to a listed building.

In this legislative context, the Court of Appeal, in Attorney General ex rel. Sutcliffe v Calderdale Borough Council (1982) identified the three key factors to consider when determining whether land falls within the curtilage of a listed building, as follows:

• the physical layout of the listed building/structure;
• their ownership (past and present); and
• their use or function (past and present).

On this basis, on the facts of this case, the Court of Appeal concluded that a row of terraced cottages associated with a listed mill could be regarded as falling within its curtilage, and therefore subject to the special protection afforded by the listing.

Relevance for permitted development rights

Understanding the breadth of this approach to curtilage in the context of listed buildings is essential when navigating permitted development rights.

For example, the rights conferred by Schedule 2, Part 1, Class E of The Town and Country Planning (General Permitted Development) (England) Order 2015 (relating to buildings, enclosures, pools, or containers incidental to the enjoyment of a dwellinghouse), do not apply if the proposed development would be situated within the curtilage of a listed building. Similarly, permitted development rights for the installation, alteration, or replacement of off-street electric vehicle charging outlets or upstands—as well as for certain changes of use, such as from office to residential—are disapplied in the curtilage of a listed building.

When considering development under such permitted development rights, it is important not to adopt too narrow a view of what constitutes the curtilage of a listed building.

Conversely, when applying permitted development rights that are not affected by listed building curtilage considerations, it is equally important to avoid applying the broader interpretation of curtilage that is appropriate in the context of listed building control.

As Holgate J observed in Hampshire:

"On the authorities as they stand, the broad approach to ‘curtilage’ identified in Calderdale should only be applied to listed building control, but not to development control".

Practical takeaways for clients

• The identification of the curtilage in any case is a question of fact and degree, with planning judgment to be exercised within parameters set by case law.
• Curtilage for the purposes of listed building control is broader than for the purposes of development control.
• Some permitted development rights are not available if the development falls within the curtilage of a listed building.
• If in doubt, seek specialist advice before carrying out works.
• Failure to obtain the appropriate permission or consent when required is not only costly but may also be a criminal matter.

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