Enforcement notice — Works carried out without listed building consent — Notice requiring restoration of original boundary in part — Boundary not serving its former function — Whether material — Whether a ditch is a “structure” — Whether boundary within “curtilage” — Owner’s appeal dismissed
In July 1986, the appellant bought North Aston Hall, listed Grade II in 1955, which was then derelict. In the course of restoring it, he made a drystone wall (for privacy) using the stones of the wall from the ha-ha and then filling in the ha-ha without planning consent. [A “ha-ha” is a ditch or sunken fence forming a garden boundary so as not to interrupt the view.] The work was completed in 1988.
An enforcement notice was served on him by Cherwell District Council on March 1 1989. It required reinstatement of the ha-ha on the ground that its removal was detrimental to the landscape. After a local inquiry, the inspector recommended that the notice should be upheld in part so that almost all of the ha-ha would be preserved.
In accepting those recommendations, the Secretary of State for the Environment stated that the ha-ha was constructed as part of the layout of the grounds of the hall, on land connected to it, so that it was within the curtilage of a listed building. Moreover, the two main elements of the ha-ha, the ditch and the wall, were considered integral parts of the structure within section 54(6) of the Town and Country Planning Act 1971 (section 2 of the Planning (Listed Buildings and Conservation Areas) Act 1990). The retention of the ha-ha was thus desirable even though it no longer fulfilled its original function.
Held The owner’s appeal against the Secretary of State’s decision was dismissed.
1. Section 54(9) of the Town and Country Planning Act 1971 (Section 1(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990) provided that any structure forming part of the land and within the curtilage of a listed building was to be treated as part of that building. Although the subsection had been regarded as ambiguous (see Debenhams plc v Westminster City Council [1986] 3 WLR 1063), in the present case there was plenty of material which enabled the Secretary of State to regard the ha-ha as part of the curtilage and therefore part of the listed building.
2. In Dyer v Dorset Borough Council [1988] 3 WLR 213, it was held that a “curtilage” bore an established meaning of “a small area forming part or parcel with the house to which it was attached…”
3. In each case it was a question of fact and degree as to whether or not a particular area lay within the curtilage of another building (see also Methuen Campbell v Wilton [1979] 2 WLR 113).
4. It could not be accepted, therefore, that the Secretary of State had erred in law in holding in the present case that the ha-ha was within the curtilage.
Brian Leech (instructed by Emma J Leach & Co, of Manchester) appeared for the appellant, Mr Watson-Smyth); and Mr Philip Havers (instructed by the Treasury Solicitor) appeared for the first respondent, the Secretary of State for the Environment; the second respondents, Cherwell District Council, did not appear and were not represented.
