Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions

JurisdictionEngland & Wales
JudgeLORD JUSTICE ROBERT WALKER,MR JUSTICE ALLIOTT,LORD JUSTICE HENRY
Judgment Date25 February 2000
Judgment citation (vLex)[2000] EWCA Civ J0225-7
Docket NumberCase No: QBCOF/99/0369/C
CourtCourt of Appeal (Civil Division)
Date25 February 2000
Secretary Of State For The Environment, Transport & The Regions & Anr
Appellants
and
Skerritts Of Nottingham Ltd
Respondent

[2000] EWCA Civ J0225-7

Before:

Lord Justice Henry

Lord Justice Robert Walker and

Mr Justice Alliott

Case No: QBCOF/99/0369/C

QBCOF 99/0690/C

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIS HONOUR

JUDGE BARTLETT QC (SITTING AS A DEPUTY

JUDGE OF THE QUEEN'S BENCH DIVISION)

Royal Courts of Justice

Strand,

London, WC2A 2LL

Mr John Hobson (instructed by The Treasury Solicitor for the Appellants)

Mr Christopher Katkowski QC (instructed by Actons, Nottingham for the Respondent)

LORD JUSTICE ROBERT WALKER
1

Introductory

2

This is an appeal with the leave of the judge from an order made on 22 March 1999 by Mr George Bartlett QC, sitting as a deputy judge of the High Court. By his order the judge remitted to the Secretary of State of the Environment, Transport and the Regions (the Secretary of State) for rehearing and determination the Secretary of State's decision (contained in a decision letter dated 26 May 1998) to dismiss an appeal against a listed building enforcement notice issued by Harrow London Borough Council on 2 September 1996.

3

The listed building enforcement notice was issued, as appears from its first schedule (description, address and location of buildings) in respect of

4

"The stable block lying within the curtilage of the Grade II* listed Grimsdyke Hotel, Old Redding, Harrow Weald, shown edged with a bold black line on the attached plan."

5

The contravention alleged was the removal of the existing timber-framed windows and the installation of white plastic double-glazed windows, without listed building consent. The notice required 19 unauthorised windows to be removed and windows of the traditional type to be reinstated within six months.

6

This appeal turns on the meaning of the word 'curtilage' and the evaluation of the facts made by the Inspector appointed by the Secretary of State. Before any more detailed description of the property now known as the Grimsdyke Hotel (and before that simply Grimsdyke) it is useful to summarize the statutory provisions which apply. They are in Part I of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Act).

7

Section 1(5) of the Act contains an important definition of "listed building":

8

"a building which is for the time being included in a list compiled or approved by the Secretary of State under this section; and for the purposes of this Act -

(a) any object or structure fixed to the building;

(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,

9

shall be treated as part of the building."

10

Section 7 contains a general prohibition on the unauthorised carrying out of any works to a listed building which would affect its character as a building of special architectural or historic interest (which is, under s.1(l), the criterion for listing). By section 9(1) a contravention of s.7 is an offence. Section 38 empowers the local planning authority to issue a listed building enforcement notice requiring the restoration to its former state of a building on which works have been carried out in contravention of s.9(l).

11

By section 39(l) a person with an interest in a building to which a listed building enforcement notice relates may appeal to the Secretary of State on one or more of the specified grounds, which include (s.39(l)(a)) that the building is not of special architectural or historic interest. There are numerous other grounds in paragraphs (b) to (k). By s.65 there is an appeal from the Secretary of State to the High Court on a point of law.

12

At all material times the lessee of the Grimsdyke Hotel, its garden and grounds, and the stable block, has been a company called Skerritts of Nottingham Ltd (Skerritts). Skerritts appealed to the Secretary of State on several grounds, but only the ground in s.39(1)(a) (which raised the 'curtilage' issue) is relevant to this appeal. The appeal was dealt with by written representations to the Inspector, together with a site visit which he made on 16 February 1998. The Inspector's report dated 5 March 1998 advised that the appeal should be dismissed on all the grounds relied on by Skerritts, but that the time for compliance should be extended to nine months. The Secretary of State by his decision letter dated 26 May 1998 accepted the Inspector's advice and reasoning (both on the 'curtilage' issue and on the other grounds of appeal) and dismissed Skerritts' appeal. Skerritts appealed on a point of law (relying only on s.39(l)(a)) and the judge, in a careful reserved judgment, allowed the appeal. Against that decision the Secretary of State appeals to this court. The notice of appeal has been served on the local planning authority, the Harrow London Borough Council, but it has taken no part in this appeal (nor did it take part in the appeal to the judge).

13

The main building known as Grimsdyke was designed as an English country house by (Richard) Norman Shaw, the eminent Victorian architect. It was for many years the home of W S Gilbert (and later of his widow). It has not been used as a private house since 1937 and its use as a hotel began in 1975.

14

The Inspector's description of Grimsdyke and its surroundings is set out in the judgment under appeal, but it is useful to repeat it:

15

"4. …The hotel stands in a clearing in dense woodland and is set in extensive grounds. To the north of the grounds, there is open farmland and, to the east and south, Harrow Weald Common, a woodland and public open space. There is a water treatment compound set in woodland to the west. The site lies within the Metropolitan Green Belt.

16

5. The hotel is approached from Old Redding, via a gated entrance, past the South Lodge, a Grade II listed building, and along a metalled road through the wooded grounds. The road forks and the left-hand route continues to a parking area and the entrance to the hotel and the right-hand track swings east to a group of buildings including North Lodge, New Lodge and the Stable Block. Grim's Ditch is an ancient linear defensive earthwork which runs east/west to the north of the main hotel building. It is a Scheduled Ancient Monument. Grim's Dyke Lodge, to the north of Grim's Ditch, is a modern annex to the hotel containing 34 bedrooms.

17

6. Grimsdyke is a two and three storey, former English country house, designed by the architect Norman Shaw for the painter Frederick Goodall (1822–1904) and was later the home of W S Gilbert, the librettist (1837–1911). It is in a romantic, 'Old English', picturesque style and has an irregular plan and was completed in 1872. The landscaped grounds, which were laid out prior to the erection of Grimsdyke, have recently been included in the Register of Parks and Gardens of Special Historic Interest.

18

7. The Stable Block is some 200m to the east of Grimsdyke. It is L-shaped in plan, with a two storey wing and a single storey wing, and two brick walls complete a square compound in front of it. The approach is along the diagonal to the square from an entrance gate, which is missing, to the main entrance to the building at its inside corner. [Some detailed references to elevations are omitted here.] The accommodation is on two floors and provides bedrooms and communal kitchens and bathrooms for hotel staff. There are also some offices. The building has three tall brick chimneys, a tiled hipped and gabled roof with hipped and gabled dormers, and brick walls with vertical tiling to the upper parts."

19

I emphasise, at the risk of stating the obvious, that Grimsdyke itself is listed Grade II* and South Lodge is listed Grade II, but the stable block, although (as the Inspector found) "probably erected at the time that Grimsdyke was conceived by Shaw" and "almost certainly designed by Norman Shaw" is not separately listed, which is why the issue of curtilage is of central importance. The South Lodge, which is separately listed, appears from the plans to be (in comparison with the stable block) at least twice as far from Grimsdyke.

20

In paragraph 11 of his report the Inspector referred to Planning Policy Guidance 15 (PPG 15) for the tests, derived from case law, for whether a structure is within the curtilage of a listed building: physical layout of the surroundings to the listed building and the relationship between the structures on the land; ownership past and present; whether the structure forms part of the land; and the use or function of the structure and whether the structure is ancillary to the principal building. The Inspector considered those matters in the next five paragraphs and concluded in paragraph 17,

21

"I have reached the conclusion that, based on the physical, historical, ownership, and functional facts before me, the structure known as the Stable Block lies within the curtilage of Grimsdyke and has formed part of the land since before 1948 and so shall be treated as part of Grimsdyke. The appeal under ground (a) should not succeed."

22

It is not necessary to go into all those aspects since the appeal heard by the deputy judge, and the further appeal to this court, have been concerned with a single fairly narrow point (though one trammeled by a good deal of case law). That is whether the Secretary of State, in accepting the Inspector's advice and reasoning, erred in law by overlooking the principle (if there is such a principle) that the curtilage of a listed building is confined to a small area...

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