There is an enormous variety of possible questions on heritage, from areas of archaeological importance to world heritage sites. But in practice a surprisingly high proportion – at least a third – of all the enquiries the CLA gets from members on heritage topics concern what at first sight might seem the very narrow question of what exactly is included when a historic building has been listed – and the word ‘curtilage’ often comes into the question.
The reasons for this do not reflect much credit on the listing system. The first is that since 1968 the law has created a potential elephant trap, because listing a building can – sometimes – cover things not mentioned in the official list description or not physically connected to the listed building. Getting this wrong – for example you might alter something you had no reason to think was listed, even after checking the list description – is therefore easy, and could attract draconian penalties including criminal prosecution, punishingly-expensive enforcement, even imprisonment.
The second reason is that just about all the available non-CLA guidance on this (including even ‘official’ guidance published by Historic England and by Cadw in Wales) is at best misleading, or at worst seriously incorrect. Much of it repeats longstanding myths, for example that “everything in the curtilage is listed”, or that “listing a farmhouse automatically lists all the farm buildings”.
So what is actually covered by listing? Does it depend on ‘curtilage’?
What the law and case law says is usually relatively straightforward (even if, as below, it may be very imperfect in principle). The listing of a building will include:
(i) the listed building as described, inside and out, including fixtures;
(ii) any structures attached to the listed building which were, at the date of listing, in the same ownership, and ancillary to it. As examples of what ‘ancillary’ means, a domestic garage, woodshed, or gardener’s cottage would probably be ancillary to a listed house, a dwelling, and therefore covered by the listing, but agricultural barns in purely agricultural use, or a dwelling let to a third party, would not.
(iii) any non-attached structures which are pre-1948 and were, at the date of listing, in the same ownership as, and ancillary to (see above), and in the curtilage of, the principal listed building.
These ‘tests’, although they may look complex at first sight, will usually give you a clear answer as to whether a building or structure is included in a listing. If you are a CLA member, this is explained in more detail in two CLA heritage Guidance Notes Listed buildings – what listing includes and Getting heritage consents in England and in Wales.
In practice, in most cases, what this depends on is not the legally-confusing concept of ‘curtilage’, but simply whether the structure was ancillary. If it was not ancillary, then – curtilage or not – it will not be covered by listing. That has been clear since the Debenhams case in the House of Lords in 1987, and has been repeatedly reconfirmed in many other court cases since then, for example Blackbushe Airport in the Court of Appeal in 2021 (“in order to be treated as if it were part of the listed building, a freestanding structure within the curtilage must also be ancillary to that building”). Only if the other ‘tests’ within (iii) above are all met might you need to worry about ‘curtilage’.
So why is this a problem? Why are there myths about ‘curtilage’?
The bad news is that Government and its expert advisers made a clumsy job of this in 1968, and has not fixed it since.
The perceived problem in 1968 was that most listing descriptions focused on the main building, and some ignored other buildings or garden walls, leaving them unlisted and, at least in some limited circumstances, at possible risk of harm.
If that problem was serious enough to need fixing, the proper way to do that was obviously firstly to make sure that all future listing descriptions did define which structures did, and did not, have the ‘special interest’ needed for listing (a core part of any competent listing process), and secondly to revise the then-existing list descriptions to do the same (which could have been done over time at low cost, given that the number of listings then was much lower than it is today, and most have been revisited).
Government however did neither of these things. Instead it added a ‘quick-fix’ clause to the legislation which, as above, brings some of these structures within listed building control.
That, clearly, was not a clever change, because it ‘lists’ things without telling anyone they are listed. That obviously causes problems. Government and its advisers then made this even worse in four further ways:
First, it failed to include the fundamental ‘special interest’ test for listing. Normal listing by the Secretary of State requires ‘special interest’, but listing purely by legal process under this 1968 clause does not, often creating absurd situations where things are ‘listed’ even though they plainly have no, or negative, heritage interest. Second, official list descriptions continued, including through the major post-1968 and 1980s listing campaigns, to routinely ignore anything other than the principal building.
Third, the quick-fix clause used unclear language (and puzzled Court of Appeal judges muddied this even further in 1982), though fortunately as above the House of Lords in 1987 broadly clarified this.
Fourth, Government provided virtually no guidance – extraordinarily, it was more than 50 years before Historic England published substantive advice on listed building consent (LBC), in 2021. The reason for the lack of guidance on what listing covers may be that there is an influential lobby, mainly in local planning authorities (LPAs), which take decisions on listed building consent, that feels that the underlying law has been made too clear, too apt to exclude things they think should be included, and that LPAs should be left free to ‘list’ anything they choose. Often, planning officers seize on the ill-defined (and, as above, usually immaterial) term ‘curtilage’, claiming your structure is “in the curtilage, and therefore listed”. This is especially true of agricultural barns, claimed to be “listed” although, if in agricultural use when the farmhouse was listed, they cannot be covered by its listing because they were not ancillary.
The result is great uncertainty which loads under-resourced LPAs with enquiries they are not equipped to answer, and unnecessary LBC applications for structures which are not listed, and feeds perceptions that the heritage protection system sprays bureaucracy around indiscriminately. Confusion about so-called ‘curtilage listing’ is notorious, a constant criticism from those who strongly support heritage protection, and a stick with which the system is beaten by those who want to undermine it.
The morass this has produced is one of the reasons why the 2022 CLA/Historic Houses heritage survey showed that, although almost all respondents thought heritage protection in principle is “important” or “very important”, an extraordinary 48% thought the actual heritage protection system in practice is “poor” or “very poor”.
So what do you do in practice? How do you forestall claims that your building “is curtilage listed”?
The key to this is not to discuss what is listed with the LPA until you know the answer yourself, because LPA staff are usually not expert on this, and because they (if they answer at all) will often claim that a structure “is listed” even if it clearly is not.
The first step therefore is to work this out yourself, using your list description and the ‘tests’ set out above (and CLA guidance and advice if you are a member), before you make any applications or talk to the LPA.
You can then establish the building’s heritage significance (if any), and ensure your proposals respect that. If it is not covered by listing but does need a planning application, explain clearly but briefly in your application that the building is not covered by listing – provided you do this before the LPA has formed its own opinion (and so would not have to change its mind), it may well agree. CLA guidance gives more detailed advice on all this as above. The key throughout is never to assume that the LPA (or a planning inspector if you appeal) understands what is covered by listing, and always to make the arguments effectively, based on the law and the facts.