Historic parks, gardens and landscapes Q & A DCP Section 27.4

This section is concerned with development and alterations related to listed historic parks, gardens and landscapes or affecting their setting. It also covers the demolition, alteration or removal of garden buildings, walls, features and ornaments both within the curtilages of listed buildings or located in conservation areas.

Q & A    27.4/10

I am confused by the use of the word "curtilage" with reference to listed building control. Does it have the same meaning as with relation to permitted development rights?

As the term "curtilage" is employed in differing legislative codes there is strictly no relationship, but as the word is undefined in either the General Permitted Development Order 1995 (GPDO) or the Planning (Listed Buildings and Conservation Areas) Act 1990 rulings have tended to fall back on its commonly understood meaning. However, PPG15 on Planning and the Historic Environment at paras.3.34 & 3.35 does contain advice on the subject. This serves to underline the fact that when ascertaining whether a building is listed by reason of being within the "curtilage" of a listed building there may be complex matters of present and past historic association to be considered which will not apply to an assessment for GPDO purposes. The guidance lists the following factors:

-    the historic independence of the building;

-    the physical layout of the principal building and other buildings;

-    the ownership of the buildings now and at the time of the listing;

-    whether the structure forms part of the land;

-    the use and function of the buildings, and whether a building is ancillary or subordinate to the principal building.

I am currently advising on the development of a new landscaped garden/grounds at an existing green belt listed building, involving the extension of the ground into farmland. The building does not currently have a garden setting appropriate to its status and character. Has there been an example where such a proposal has been successfully pursued?

There is no doubt that a curtilage extension would be deemed to be inappropriate development in a green belt area and any improvement of the setting to this listed building would have to be accorded the status of a "very special circumstance" overriding green belt harm. I cannot identify an appeal case where this argument has been used, but would anticipate problems in persuading decision makers that alteration of the historic boundary of a listed house with the open countryside would be a benefit of weight. Does any reader know of a case raising this point?

Regarding the query about a standard condition for listed building consent requiring works of 'making good' (Planning 2 April p23), this surely demonstrates that standard conditions are at best not very sensitive and can be so non-specific as to be either useless or harmful. They are not helpful in enforcement either as they encourage much debates about interpretation. The use of standard conditions is not compulsory and may not actually save time or have the protective effect intended. If in doubt, it is better to draft a specific condition. In my view, the same principle applies to issues such as landscaping and building materials, where insensitive development would be particularly damaging.

I agree generally with what you say. Advice in cancelled Circular 1/85 warned that while standard conditions may be of great benefit in improving the consistency of decision-making, the use of staff resources, and the speed of processing of applications, the routine application of such conditions needed to be treated with caution. Standard conditions are not comprehensive and will always need to be devised or adapted to suit the particular circumstances of the case. Although not repeated in Circular 11/95, in my view this advice continues to be relevant. Planning authorities should therefore take care to ensure that their standard conditions meet the so-called six tests and are not applied indiscriminately.

An owner has applied for listed building consent (LBC) to demolish a substantial roof over an enclosed yard, to the rear of a listed building that covers a snooker club, and this would effectively end the club use. However, assuming LBC is required, the building operation would not need planning permission. But while the loss of a club facility would rarely be a relevant consideration in a LBC application, it could well be a planning issue. Is this apparent loophole a correct interpretation of the matter?

Under the Town and Country Planning (Demolition - Description of Buildings) Direction 1995 the demolition of a listed building is not taken to involve development, even where building operations are involved. The criteria for deciding applications for LBC are different from those for planning permission. In particular, sec 54A of the 1990 Act does not apply. Instead, relevant considerations stem from the statutory duty to "have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses" and this is supplemented by guidance in PPG15.

Thus if the removal of the roof would not harm the listed building, that is the end of it. But if it would, PPG15 says it is relevant to inquire whether there is an economic use for the structure looking at both the likelihood of the continuation of the present use or any compatible alternative use. If the existing snooker club use, or something that could replace it, were capable of ensuring the continued economic survival of the roof structure then refusal of consent would be justified. However while it is possible that the club use would continue as a consequence, ultimately this is solely a commercial decision for the operator which the planning system cannot control.  

Following the refusal of retrospective consent for replacement windows in a listed building, enforcement action is to be taken against the owner. Neither the original windows nor the new ones are particularly appropriate, despite the owner feeling that they are better. As an alternative to requiring the reinstatement of windows matching those removed, Sec.38(2)(b) of the Planning (Listed Buildings and Conservation Areas) Act 1990 appears to allow the authority to require further works to alleviate the effect of the unauthorised works, where restoring the building to its former state would be undesirable or impracticable. Case law appears divided on the subject. Could the authority insist on an appropriate window design from its own specifications that would be slightly different from those installed and those removed?

Limited guidance on the application of Sec 38(2)(b) is given at paragraph 3.43 of PPG15, which refers to the judgement in Bath City Council v Secretary of State for the Environment [1983]. Here the courts held that under this provision an authority could not require the improvement of a listed building beyond its state prior to any unauthorised works being carried out, in order to restore its historic appearance.

Annex C of PPG15 sets out detailed guidance on windows and says that as a rule these should be replaced ‘like-for-like’. In the circumstances you describe, in my view there is a risk that if the authority insists on new windows that are more appropriate and accord with its own specifications, this could be construed as an improvement that exceeds the provisions of Sec 38 (2) b. The irony is, of course, that had the owner applied for listed building consent in the first place, it might have been possible to secure a return to the original glazing pattern. Development Control Practice cites various cases that demonstrate the problems that have been encountered with the reinstatement requirements of enforcement notices at 27.251.

A friend has recently bought what turns out to be a listed building that was altered by a previous owner without the necessary consent. These works include some for which a local authority grant was given and others the subject of planning permission. No one apparently asked the then owner to also apply for listed building consent. Can the authority now require the grant-aided work to be redone using traditional methods and materials or the development with planning permission to be changed or removed? On appeal, could an inspector take into account the fact that had listed building consent been sought at the time, because the approach to conservation was not as it is now, it would might well have been granted?

I am surprised that the building’s listed status was not apparently revealed by either the local land charges department or your friend’s solicitor and there may be some remedy available here. While there is no time limit for enforcing against breaches of listed building control, this is discretionary and in the circumstances you describe might appear harsh. However, successive owners are not immune from such action and the authority may therefore require appropriate restorative works to be undertaken in accordance with current conservation practice.

I agree that the authority appears partly to blame by not ensuring that any grant-aided work had the necessary consent, which in my experience would be normal practice. In addition, although under no duty to do so, it seems to have failed to ensure that the permission included a note advising of the need for listed building consent before commencing work, or to request such an application and to consider this alongside the planning application. But while an inspector might be sympathetic to your friend’s plight, ultimately the responsibility for ensuring that the relevant consents have been obtained rests with the owner of the property and not the planning authority.

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