Q & A 27.3/10
A local authority is insisting that there are no householder permitted development rights applicable to listed buildings but I see nothing in the Order to justify such a sweeping judgement. Who is right?
The Order states in relation to Part 1 Class A, which permits the enlargement, improvement or other alteration of a dwellinghouse, that the erection of any building within the curtilage of a listed building is not permitted. Therefore, on the face of these words, any extension to a dwellinghouse such as an additional room or garage would be a building for the purpose of this Part (but not works that constitute a mere alteration or improvement). However due to the fact that such a restriction within Class A is unnecessary as all works covered would be bound to require listed building consent anyway except freestanding structures within 5 metres of the dwelling, it may be reasonably concluded that the intention here was only to bring these latter developments at listed buildings within planning control. The remaining Classes in Part 1 do not have any restriction related to listed buildings save Class E which limits permitted development rights for garden structures within the curtilage of listed buildings to 10 cubic metres. The answer to your question is, therefore, that many householder permitted development rights do prevail at a listed dwellinghouse and the local authority are wrong to assert otherwise.
Does the four year immunity rule relating to unauthorised building development apply equally to development which would have required listed building consent?
There is no "four year rule" provision in listed building law, and no such provision may be imported from the completely separate Town & Country Planning Act. Therefore even though an alteration or extension to a listed building may be immune from enforcement under the planning acts, a remedy may still be pursued by means of a listed building enforcement notice. Clearly a listed building enforcement notice would not bite against development carried out before the structure in question was listed and, it may be argued, before listed building enforcement notices were brought into force after the 1968.
For the purposes of Part 1 Class A 1(g) of the GPDO can you confirm that the erection of a building includes extensions to listed dwellinghouses or whether section (g) is referring solely to detached buildings within the curtilage of a listed building?.
The definition of a "building" in the Order includes part of a building. Despite the confusing reference to "curtilage", this proviso is specifically included under the Class A heading relating to "the enlargement, improvement or other alteration of a dwellinghouse", and the exemption from PD rights stated at A.1(g) must refer thereto. In defence of the draftsman of the Order an extension to a house does technically fall within its curtilage. It is of note that Class E, relating to detached buildings within the curtilage of a listed building, does give a limited PD right within listed building curtilages of 10 cubic metres.
I wonder if you could clarify whether the curtilage of a listed building and the curtilage of a "dwellinghouse" must be one and the same. I live in a converted barn which was listed well before these works took place. The planning permission showed part of the adjoining field being included as garden. No conditions were imposed limiting permitted development rights, but I am aware that planning permission is required for ancillary garden buildings within a listed building curtilage. I would be grateful to hear your views.
The curtilage created by the planning permission qualified it for Part 1 Class E permitted development rights. However, these rights are limited in the case of "land within the curtilage of a listed building" to structures of less than 10 m3. Looking at the facts today there would seem to be little doubt that your garden is within the curtilage of a listed building. I cannot imagine that it is possible to argue that the provisions of the Order may be set aside because the present garden does not fall within whatever historic curtilage was in being at the time of listing. However, I do not have a case to hand to prove this point and wonder if any readers have dealt with such a situation.
Further to the queries concerning national flags, since 1989 my client has flown the Swiss national flag on a flag pole that projects at an angle from the front of his listed Swiss restaurant building. Although planning permission is not needed, at the request of the authority my client sought listed building consent for the flag pole and advertisement regulations consent for the flag, but these were refused and have been appealed. However, bearing in mind that it involves a listed building and an advertisement, would it also be possible to apply for a Certificate of Lawfulness for the flag and pole and would this be negated if the appeals fail?
Sec 38 of the Listed Buildings Act 1990 sets no limit on the period for issuing a listed building enforcement notice. Thus the concept of lawfulness and the associated time limits following which unauthorised development becomes immune from planning enforcement action does not apply to breaches of listed building consent.
However, where an advertisement is held to be development but is not displayed in accordance with the Regulations, it will not enjoy deemed planning permission and will therefore result in a breach of planning control. Thus it is possible to seek a certificate of lawfulness for its display, with the relevant time periods depending on whether the development that has taken place amounts to a building operation or a material change of use, as evidenced in the recent case from south-west London (Planning 5 March, p20). But in the circumstances you describe, a certificate of lawfulness would clearly be of no benefit.