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

The curtilage of a building is a question of fact and degree. It need not always be small, and smallness is not an independent criterion when determining the curtilage of a substantial listed building.

The decision-maker should consider the physical layout and relationship of the buildings, their past and present ownership, and their past and present use or function. In the case of a mansion, its curtilage may include stables and other ancillary buildings situated some distance away. A decision reached by applying those considerations is not legally defective merely because it makes no separate reference to size.

A listed building enforcement notice required the replacement of unauthorised plastic windows installed in a stable block approximately 200 metres from the Grade II* listed Grimsdyke Hotel. The stable block was not separately listed. It would therefore be protected only if it fell within the hotel's curtilage for the purposes of section 1(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990.

An Inspector concluded from the physical, historical, ownership and functional circumstances that the stable block was within the curtilage. The Secretary of State accepted that conclusion and dismissed the occupier's statutory appeal. On an appeal on a point of law, a deputy High Court judge remitted the matter because the decision-maker had not treated curtilage as necessarily involving a small area around the listed building.

The Secretary of State appealed. The central issue was whether the Inspector had erred in law by failing to apply a separate criterion of smallness.

1. Appeal allowed unanimously. Robert Walker LJ delivered the judgment, with which Henry LJ and Alliott J agreed. The Inspector and the Secretary of State had made no error of law by omitting a separate reference to smallness when determining the stable block's curtilage.

2. Curtilage is a question of fact and degree. Robert Walker LJ accepted that Dyer v Dorset County Council [1989] 1 QB 346 was correctly decided on its facts. A 100-acre park could not constitute the curtilage of the mansion or college buildings considered there. However, the observations suggesting that curtilage must always be small, or that smallness is inherent in the expression, went beyond what was necessary for that decision.

3. The statutory context was material. Dyer concerned housing legislation with a dispossessory effect, whereas the present appeal concerned Part I of the Planning (Listed Buildings and Conservation Areas) Act 1990. For a substantial listed building, particularly a mansion, the curtilage is likely to extend to buildings which are or historically have been ancillary in terms of ownership and function. Stables and other satellite buildings may therefore fall within the curtilage despite some physical separation.

4. The relevant assessment includes the physical layout and relationship of the buildings, their past and present ownership, and their past and present use or function. The concept is one of principal and accessory. Distance and physical arrangement remain relevant, but the relative smallness of a mansion's curtilage is too imprecise to operate as a useful independent criterion.

5. The Inspector had considered the physical, historical, ownership and functional circumstances and had concluded that the stable block formed part of the land within Grimsdyke's curtilage. Planning Policy Guidance 15 was not incomplete merely because it did not state that curtilage must be small. The High Court's order was set aside, with costs here and below. Leave to appeal to the House of Lords was refused.

1. Court of Appeal: The Secretary of State's appeal was allowed unanimously. The High Court's order was set aside, and the Secretary of State's decision was upheld. Leave to appeal to the House of Lords was refused.

2. High Court: A deputy judge allowed the occupier's appeal on a point of law and remitted the Secretary of State's decision for rehearing and determination. He considered that the decision-maker had failed to address the allegedly essential concept that curtilage is a small area around a building.

3. Secretary of State: The Secretary of State accepted the Inspector's recommendation and dismissed the occupier's appeal against the listed building enforcement notice, subject to extending the compliance period.