Previous posts looked at scheduling and World Heritage Sites as mechanisms for protecting parks and gardens, instead of – or in addition to – designation as a registered park or garden. This next post in the series looks at another potentially helpful mechanism: listing.
Listed Buildings
Scheduling has its origins in the 1880s, and the Ancient Monuments Protection Act of 1882. Listing was the next form of protection for the historic environment, emerging in the 1940s. Section 42(1) of the Town and Country Planning Act, 1944 enabled the Minister to compile lists of buildings of special architectural or historic interest. It was in the Town & Country Planning Act, 1947 that listing became required rather than merely just possible, and, to this day, the Secretary of State is obliged to list buildings which meet the statutory criteria (in contrast, the scheduling of monuments is discretionary).
As noted by Historic England, ‘the basis for the first listing survey was the heroic war-time lists’, or ‘Salvage Lists’. As the legislation continued to evolve, so too did the lists themselves (and the underpinning selection criteria), with a resurvey commencing in 1968, and further resurvey activity in the 1980s.
Listing Today
The legislative context for listing is now set out in the Planning (Listed Buildings and Conservation Areas) Act 1990. The listing of buildings is addressed in Section 1, and contains many key provisions, including confirmation that ‘the Secretary of State shall compile lists of such buildings’ (emphasis added): in practice, Historic England undertakes assessments, and makes recommendations to the Secretary of State. It is worth noting that the Act does not define the grades for listing buildings (their origin is discussed further here); instead they are defined in Government guidance, as follows:
- Grade I buildings are of exceptional special interest
- Grade II* buildings are particularly important buildings of more than special interest
- Grade II buildings are of special interest, warranting every effort to preserve them.
A listed building is defined as ‘a building which is for the time being included in a list compiled or approved by the Secretary of State’, as well as:
- Any object or structure fixed to the building
- 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.
The first part of the definition (namely that a listed building is a building on the list) appears relatively straightforward, but has recently been the subject of much attention. The second and third elements introduce the often thorny concepts of fixtures and fittings, and curtilage, and have long been subject to debate: all are discussed further below. In recognition of these issues, an important change in the addition of buildings to the list was made in 2013, courtesy of the Enterprise and Regulatory Reform Act. This introduced section 1(5A) to the 1990 Act, which enables list entries to be made more specific as to what exactly is listed, and what is not: a list entry can now state that objects or structures fixed to the building, or within the curtilage, are ‘not to be treated as part of the building’ for the purposes of the Act, and that ‘any part or feature of the building is not of special architectural or historic interest’. Historic England advises that this approach will be applied to new listings ‘as and when it is appropriate’, but that it ‘will not automatically apply to existing listings’ (though can be requested). An early use of this provision is apparent in the list entry for Preston Central Bus Station, in which the extent of the listed building is clearly shown in blue on the related map, and the listing text clearly states that ‘the pedestrian links, that is the three subways and the elevated walkway, are excluded from the listing, as less successful elements of the structure’.
Clarity as to what exactly is listed is important because listed building consent (LBC) – introduced in the Town & Country Planning Act 1968 – may be needed for works to listed buildings, specifically ‘works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest’. Needing consent does not mean that it will not be obtained, merely that a degree of scrutiny is required, and the chance to refuse inappropriate works that would harm a listed building’s character. Applications for LBC are made to the local planning authority, and refusals are subject to a right to appeal, as for applications for planning permission. Works to a listed building may need both LBC and planning permission (research suggests that around half (47%) of LBC applications submitted have a related planning application submitted and considered at the same time), but it is worth noting that LBC is required for a much wider range of works than planning permission. Historic England has produced some useful advice for listed building owners on the LBC process, and how to judge whether proposals need consent, in the form of Listed Building Consent: Historic England Advice Note 16 (HEAN 16). Again, clarity is important, as failure to obtain consent where it was needed, or to comply with the conditions of a consent, is a criminal offence: it is always worth obtaining professional advice regarding listed building-related proposals.
When considering applications for LBC, local planning authorities must consider them against the policy set out in the National Planning Policy Framework (NPPF), which is predicated on the concept of ‘significance’ (defined as ‘the value of a heritage asset to this and future generations because of its heritage interest’). NPPF heritage policy starts with a requirement for local planning authorities to give great weight to the conservation of listed buildings – ‘great weight’ being the strongest in national planning policy. Any proposed harm to a listed building requires ‘clear and convincing justification’, and substantial harm should be exceptional (‘wholly exceptional’ in relation to Grade I and II* listed buildings), to the point that local planning authorities should refuse consent where proposals would lead to substantial harm (unless that harm is necessary to achieve substantial public benefits that outweigh the harm or loss, or a range of specific tests is satisfied).
Local planning authorities are also required 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’ (preservation in this context means not harming the interest in the building, as opposed to keeping it utterly unchanged).
The Levelling-up and Regeneration Act 2023 retains and extends this requirement for listed buildings, so that the requirement becomes having special regard to the desirability of preserving or enhancing the building or its setting (or any features of special architectural or historic interest which it possesses); the Act also introduces this duty in respect of other designated heritage assets, including registered parks and gardens, as discussed further here.
Since 2011, list entries have been available online, via the National Heritage List for England (NHLE): ‘the only official and up-to-date statutory list of all protected historic buildings and sites in England’. Not only is this more accessible than the previous printed versions of the list (with volumes by area), but it also enables searches to be undertaken.
Relevance to Gardens
Listing is an important tool in the protection of gardens. It is possible for gardens to be both registered and largely listed, though it is not common. One example is the Barbican (listed at Grade II, with the wider designed landscape registered at Grade II*), and another is Trafalgar Square (where the fountains, terrace walls, lamp standards, steps and stone bollards enclosing the square are covered by one Grade II* list entry, and the whole square is registered at Grade I). More frequently, though, protection derives from the listing of structures within gardens.
To be listed, the building or structure in question must be of special architectural or historic interest, as outlined above. Special historic interest is common to the designation of both listed buildings and registered parks and gardens. Though the definitions of historic interest in the Government’s listing guidance (Principles of Selection for Listed Buildings, DCMS, 2018) and planning guidance are not identical, they do have much in common.
In addition to defining architectural and historic interest, Principles of Selection for Listed Buildings also identifies some other issues to be taken into account by the Secretary of State: group value, fixtures and features of a building and curtilage buildings, and, for buildings within a conservation area, the character or appearance of that conservation area. It also sets out some general principles to inform the Secretary of State’s decision-making:
- Age and rarity
- Buildings less than 30 years old
- Aesthetic merits
- Selectivity
- National interest
- State of repair.
Further advice – and confirmation of the relevance of listing to parks and gardens – is set out in Historic England’s Garden and Park Structures Listing Selection Guide. The listing selection guides ‘help to define which historic buildings are likely to meet the relevant tests for national designation’ by providing ‘more detail of relevant considerations’, and the garden-related selection guide:
… looks at buildings and other structures found in gardens, parks and indeed designed landscapes of all types from the Middle Ages to the twentieth century. They include, among much else, park walls, gates, screens and lodges; statuary; temples and seats of all kinds (often termed follies); structures for the manipulation of water; walled kitchen gardens; and ornamental glasshouses.
As in the related selection guide on scheduling gardens, the listing selection guide starts with a very helpful overview of garden history, from ‘before the eighteenth century’ to the twentieth century. It goes on to outline ‘specific considerations’, observing that:
Some structures associated with designed landscapes are important in their own right. Others are quite minor, utilitarian or unobtrusive but nonetheless make a contribution to the aesthetic quality or the functioning of the whole and help us interpret the landscape. While such minor elements may not always warrant individual designation, they may assume greater significance when they lie within the best parks, gardens, and other designed landscapes.
This part of the selection guide sets out ‘the particular tests in terms of its architectural or historic interest a building has to meet if it is to be listed’, dividing garden structures into ‘buildings of pleasure’ and ‘buildings of utility and decoration’.
Challenges
As noted above, a listed building is defined as ‘a building which is for the time being included in a list compiled or approved by the Secretary of State’, as well as any object or structure fixed to the building, and any object or structure within the curtilage of the building (with some further qualifications). These provisions raise a number of issues.
Firstly, what is a building? In the legislation, the definition of a building includes ‘any structure or erection, and any part of a building’. This has resulted in a wide variety of listed building forms, from Blenheim Palace to the zebra crossing near Abbey Road Studios. In garden terms, this has manifested in the following being listed (this of course far from an exhaustive list):
- Buildings of pleasure: romantic ruins, obelisks, temples, sundials and ha-has
- Buildings of utility and decoration: entrance lodges, walled gardens, icehouses, glasshouses, and paths.
The second question relates to the inclusion of ‘any object or structure fixed to the building’ within the definition of a listed building: what does ‘fixed’ mean? The Historic England advice on listed building consent helpfully advises as follows:
Broadly speaking, anything fixed to the building, such as staircases, chimneypieces, wall panelling, fitted cupboards internally, or attached walls and ancillary connected buildings externally, will be covered by listing; free-standing things internally will not (pictures on hooks, tables and chairs which are not built in, etc). There are, however, grey areas for which legal tests are used to decide whether consent is needed for works to a listed building [these tests are the method and degree of annexation, or fixing, and the purpose of annexation].
The final question relates to the definition of curtilage. There is further Historic England advice on this issue, in the form of Listed Buildings and Curtilage: Historic England Advice Note 10 (HEAN 10), but HEAN 16 provides a useful summary:
Freestanding buildings or structures such as garden pavilions may be covered by the listing of the principal building if they are within the curtilage and have been part of the land since before 1948. Three factors are usually considered regarding curtilage: i) the physical layout of the listed building and the structure; ii) their ownership, past and present; and iii) their use or function past and present.
The Historic England website quite rightly observes that ‘these rules may mean that considerably more may be protected by the listing than is obvious from the list entry alone and there can often be considerable uncertainty as to what is covered’. On the plus side (from a garden protection perspective at least), curtilage listing, particularly, means that a number of garden features which are not listed in their own right are likely to be covered by the listing of the parent building.
However, there has been a relatively recent legal judgement which significantly increases uncertainty: the Dill case. Idlicote House was listed at Grade II in 1966, and two eighteenth-century urns which were brought to the property in 1973 were each listed (also at Grade II) in 1986. The list entries are near-identical for these limestone piers topped with lead urns:
- Idlicote house, pier to right surmounted by lead urn approximately 51 metres south east: Pier surmounted by urn. C18. Limestone and lead. Square pier with panelled sides, moulded stone plinth and chamfered cornice. Urn is decorated with high-relief winged cherub’s heads and flame finial.
- Idlicote house, pier to left surmounted by lead urn approximately 50 metres south east: Pier surmounted by urn. C18. Limestone and lead. Square pier with panelled sides, moulded stone plinth and chamfered cornices. Lead urn is decorated with high-relief winged cherub’s heads and flame finial.
In 1993, Mr Dill inherited Idlicote House from his father, and, in 2009, he sold the lead urns at auction, not aware that they were listed, and that their removal had needed listed building consent. The local planning authority discovered the removal in 2014, and alerted Mr Dill to the legal context; he subsequently applied for retrospective consent in 2015, which was refused in 2016. The local planning authority then issued a listed building enforcement notice, requiring the reinstatement of the urns. Mr Dill appealed both the refusal and the enforcement notice, and both appeals were dismissed in early 2017.
Whilst a number of issues were considered, including whether due process had been followed in the original listing, the case came to hinge on whether or not the urns were buildings. The Planning Inspector’s decision letter on the original appeals stated that:
[The Act] sets out that ‘listed building’ means one which for the time being included in the statutory list. There is no question that the descriptions of the piers and finials (right and left) are on the formal list and that these descriptions accord with the submitted photographs. There is no evidence before me to indicate that they were mistakenly or unjustifiably listed. One cannot go behind the listing. It is there as a matter of fact and, therefore, there can be no valid argument that the piers and finials were not ‘listed buildings’…. I have concluded that each pier and finial is a ‘listed building’ in its own right for the purposes of the [Act]. The items are ‘buildings’ for this purpose.
Mr Dill took his case to the High Court (2017) and the Court of Appeal (2018), both of which upheld the Planning Inspector’s view. Undeterred. Mr Dill took the case to the Supreme Court, which considered:
- Whether an inspector considering a listed building-related appeal can consider whether or not something on the list is a ‘building’.
- What criteria are relevant in determining whether an item appearing in its own right in the statutory list is a ‘building’ for this purpose.
In May 2020 (eleven years after the sale of the urns), the Supreme Court ruled in Mr Dill’s favour on both matters. On the first issue, the Court concluded that Planning Inspectors can in fact determine if a listed object is a building. The definition of a listed building as ‘a building which is… included in [the] list’ was found to constitute two distinct tests, both of which need to be met for something to be a listed building: it must be a building, and it must be on the list. An urn not being a building is an appropriate defence, and decision-makers must now consider such challenges to the inclusion of objects on the statutory list, if raised.
On the second issue, whilst the Supreme Court did not rule on whether the items in this case were buildings – that being a planning judgement for the relevant authority – the tests to be applied by that authority in determining if something is a building were confirmed, namely the Skerritts tests (size, permanence and degree of annexation).
As at November 2023, the original list entries remain intact, though the urns are still absent. There has not yet been any change to legislation, policy or advice in response to the Dill case, which leaves a number of points unaddressed, and some ongoing uncertainty about the degree of protection listing provides to certain garden structures (those which do not satisfy the Skerritts tests and are not ‘buildings’).
Even where a structure is regarded as a building, there remains some uncertainty in practice (though not in law) for the presenters of property programmes on television. As discussed here, a worrying number persist in claiming that listing only applies to the exterior of buildings, or to conspicuously ‘old’ features, when, of course, listing covers the whole building, unless otherwise clearly stated. At any grade (‘even’ Grade II), both the interior and exterior of the building are listed, and listed building consent is therefore required for all works which affect its character as a building of special architectural or historic interest.
Setting
Another way in which listing can aid in the protection of parks and gardens stems from the provisions regarding ‘setting’. The setting of a heritage asset is defined in the NPPF as:
The surroundings in which a heritage asset is experienced. Its extent is not fixed and may change as the asset and its surroundings evolve. Elements of a setting may make a positive or negative contribution to the significance of an asset, may affect the ability to appreciate that significance or may be neutral.
Whilst historic parks and gardens are often protected in their own right, they may also benefit from being the ‘surroundings’ to another heritage asset, such as a listed building. As outlined above, the 1990 Act requires local planning authorities to have ‘special regard to the desirability of preserving the building or its setting, soon to be ‘preserving or enhancing’, under the Levelling-up and Regeneration Act 2023, and the protections for heritage in national planning policy centre on the concept of significance, itself defined as deriving ‘not only from a heritage asset’s physical presence, but also from its setting’.
Historic England provides helpful advice on setting in Good Practice Advice note 3 (GPA3): The Setting of Heritage Assets, which also clarifies the difference between setting and curtilage:
Curtilage is a legal term describing an area around a building and, for listed structures, the extent of curtilage is defined by consideration of ownership, both past and present, functional association and layout. The setting of a heritage asset will include, but generally be more extensive than, its curtilage (if it has one)….
Conclusion
Listing has considerable relevance to the protection of historic parks and gardens. Between the listing of buildings and structures in their own right, and the provisions for fixtures, curtilage structures, and setting, it is possible for considerable portions of parks and gardens to benefit from an additional layer of protection.
Gardens, Heritage and Planning 