Tuesday, 25 January 2011

Curtilage confusion


If you have found this post by searching for “curtilage” on the internet, you may like to know that there has been a total of 7 posts on this topic in this blog – on 25 January 2011, 27 May 2011, 12 August 2011, 18 August 2011, 6 December 2011, 19 December 2011 and 2 January 2012. If you wish to display them all on the page together, just put “curtilage” into the search box at the top left-hand corner of this page (but NOT in the ‘Google’ or ‘Jeeves’ box above that).

In two separate cases recently, involving different authorities, I have had to deal with misunderstandings on the part of planning officers regarding the concept of a building’s ‘curtilage’. There seems to be a rather widespread ignorance of planning law in this regard.

The lawful use of a property (whatever it is) extends to the whole of the ‘planning unit’ (i.e. the unit of occupation, unless or until any part of it can be identified as being physically and functionally separate from the whole). With this one exception, the planning unit in the case of a single private dwellinghouse is undoubtedly the whole of the land occupied with the house, and the lawful use of the whole of that planning unit falls within Use Class C3 in the Use Classes Order (namely use as a single private dwellinghouse).

Where planning officers seem to get confused is in relation to the concept of the domestic ‘curtilage’. The first point which it is important to grasp is that the ‘curtilage’ (or the ‘residential curtilage’) of a property does not represent a use of land for planning purposes. You cannot change the use of land to use ‘as residential curtilage’. If land not forming part of the original planning unit is incorporated within that planning unit (for example, a house and the land enjoyed with it for domestic purposes), in other words if its use is changed from (say) agricultural use to domestic use, then that represents a material change of use of that land, but it makes no difference whether the area of land in question was incorporated in what can be described as the ‘residential curtilage’ of the house; what matters is whether it has been incorporated in the planning unit so as to change its use to domestic use.

The second point to bear in mind (as you may appreciate from what I have already written above) is that the ‘domestic curtilage’ of a house is not necessarily co-extensive with the planning unit. This particularly applies to large houses in the countryside, where the ‘curtilage’ may extend only to the cultivated garden, plus the forecourt immediately in front of the house, etc. However, other land within the planning unit which is not so directly related to the house may in fact fall outside the domestic curtilage. As I have pointed out above, this makes no difference in terms of the lawful use of the land. The only significance of the definition of the curtilage for planning purposes is that certain permitted development rights for operational development (outbuildings, extensions and certain other structures) apply within the curtilage of a single private dwellinghouse, but not to any land within the same planning unit which falls outside the curtilage.

Planning officers sometimes seem to get hung up with the definition of the ‘curtilage’ when considering questions of lawful use (as distinct from permitted development rights, which are an entirely separate issue), but I really must stress that this is of no relevance in relation to the lawful use of any part of the property. In the vast majority of cases, the whole of a domestic property will constitute a single planning unit, so that the lawful use of the whole of the property will be use as a single private dwellinghouse within Use Class C3 of the Use Classes Order, and this necessarily includes the whole of the land enjoyed with it for domestic purposes, whether it falls inside or outside the slightly narrower definition of ‘residential curtilage’.

© MARTIN H GOODALL

92 comments:

Anonymous said...

doesnt match caselaw

In Dyer v Dorset County Council 1988 the Court of Appeal held that
“in the absence of any definition, curtilage bore its restricted and established meaning
connoting a small area forming part or parcel with the house or building which it contained
or to which it was attached.” This is a matter of fact and degree in each case. The
definition contained in the Oxford English Dictionary has also been used, this definition
states:
“A small courtyard, girth or piece of ground attached to a dwellinghouse and forming one
enclosure with it or so regarded by the law the area attached to and containing a
dwellinghouse and its outbuildings”.
Following this definition, the kind of ground usually attached to a dwellinghouse would be a
garden. It need not be an area that is marked off or enclosed in any way, it is enough that
it serves the purpose of the house or building in some reasonably useful way.
In Collins -v- Secretary of State for the Environment, the Court upheld an Inspector's
findings that an area of rough grass largely neglected which lay beyond the well cut lawns
near the dwellinghouse did not form part of its curtilage even though this land was in the
same occupation because the land did not serve the dwellinghouse in some necessary or
useful manner. Similarly, in James -v- Secretary of State for the Environment the court
upheld an Inspector's finding that a tennis court that had been constructed at the end of a
field away from the dwellinghouse was not within its curtilage, the field was separate and
distinct from the cultivated garden attached to the house and the house and tennis court
did not have the appearance of being within the same enclosure.
In The Hon. David McAlpine v SOS & Another (14/11/94) the High Court identified three
relevant characteristics of a curtilage:
· First, it was confined to a small area about a building;
· second, an intimate association with land which was undoubtedly within the curtilage
was required;
· third, it was not necessary for there to be physical enclosure of that land which was
within the curtilage but the land in question needed to be regarded in law as part of one
enclosure with the house.
Therefore it is considered that case law has clearly defined what is considered to be
curtilage associated with a dwelling.

Martin H Goodall LARTPI said...

The above comment simply recites the various authorities on the definition of 'curtilage'. I was well aware of these authorities (and others), but they do not address the issue of the lawful use of the land. This depends on identifying the planning unit, and that is not the same thing as the curtilage. Regrettably, 'Anonymous' has entirely missed the point of this post, and his comment demonstrates the need for the clarification I set out there.

Anonymous said...

Interesting reading thanks. I am looking up the issue of development of land outside the curtilage and came across your post. I live on a small private estate of primarily listed buildings and I believe that any development on land outside the curtilage requires planning permission. I now have a question - another small group of (annoying) neighbours plan to create a playground which will be open to all residents children (which really means their own) on ground that, to intents and purposes, is a field and is not within the curtilage of the property to which is belongs (indeed there are several homes between the field and the owner's property). The owner appears to have given permission for this development. I am wondering, therefore, if this constitutes a change of use and as such does it need planning permission? I have looked at various planning websites but cannot find a definitive answer.

Martin H Goodall LARTPI said...

I generally prefer to deal with specific queries like the one above via e-mail, but on the basis of the stated facts, it appears to me that the establishment of the play area is a material change of use which would require express planning permission (which may not necessarily be forthcoming). The Council should perhaps be alerted to the proposal if they are not already aware of it. For the reasons explained in the original post, it is not the fact that the land in question lies outside the domestic curtilage of any particular property but the fact that it currently forms part of a completely different planning unit (which is currently used for a different purpose in planning terms) which makes this a material change of use.

PGH said...

The definition of curtilage is not just relevant to dwelling house issues. Curtilage is also significant in respect of Class B of Part 4 of Schedule 2 to the GPDO, since temporary uses of land for up to 14/28 days are not permitted development if the land is "within the curtilage of a building" (i.e. not just a dwellinghouse).

Martin H Goodall LARTPI said...

I am grateful to PGH for reminding us of this point. Of course, the exclusion of the curtilage of a building from the 14/28-day use rights applies only to the fairly narrowly defined area around the building which actually constitutes ‘curtilage’ (as per the various well-known judicial authorities on this point). It would be perfectly possible to exercise 14/28-day use rights on a planning unit comprising a building and its grounds, provided that the use takes place on that part of the planning unit which falls outside the actual curtilage of the building.

Anonymous said...

What about curtilage of development which includes 3 or 4 properties and a seperate title for the shared right of ways to the properties, which includes garden areas as part of a planting scheme?
If the planning permission was given for the development as a whole, then does the domestic curtilage include the individual dwelling houses and the shared access area, or only the dwelling houses?
If the access area does not fall as part of the domestic curtilage or planning unit then what class of usage will it be allocated?
How do planning authorities differentiate between curtilage and planning units? Do they keep plans?
Sorry for all the questions and no answers.....

Martin H Goodall LARTPI said...

It should, in principle, be possible to define the curtilage of a specific house – it would be matter of fact in each case, which would not be dependent on the form of the development as authorised by the planning permission. Each dwelling will have its own curtilage, which would probably exclude the shared access area. However, when considering the lawful use of the land, it is the planning unit or units which would be relevant. As I have tried to explain, the definition of curtilage is primarily of importance in relation to operational development authorised as permitted development by the GPDO. LPAs would certainly not have any record showing the curtilage of individual dwellings, as distinct from the planning unit or units in respect of which planning permission was granted. It would have to be worked out on a case by case basis.

anonymous said...

We are very interested in your comments regarding confusion on part of planners. We live in a house that was converted from a barn 30 years ago, at which time, apparently, only a small area around the house was designated as domestic curtilage. When we moved in 9 1/2 years ago we were unaware of any such designation as most of the other 2 acres was clearly used as garden, though some was rather unkempt, rough meadow in contnuity with mown lawn in an enclosed overall plot. We built a tennis court and new driveway on this land and are now told it is illegal simply because of this being outside the domestic curtilage as defined 30 years ago. Do we have any defence?

Martin H Goodall LARTPI said...

The comment (or query) posted above is now the subject of a separate post, published on 18 August [“Curtilage problems – a practical example”]

Martin H Goodall LARTPI said...

PLEASE NOTE THAT I HAVE GONE INTO THIS SUBJECT IN MORE DETAIL IN THREE POSTS DATED 6 AND 19 DECEMBER 2011 AND 2 JANUARY 2012.

VARIOUS POINTS NOT TOUCHED ON IN THIS FIRST ARTICLE PUBLISHED IN JANUARY 2011 ARE DEALT WITH IN THOSE LATER ARTICLES.

Anonymous said...

Could you please comment on this. If in a will a person is left "any home and curtilage or the land used with the home". Would this only include the home and where it sits, or would it also include a barn which is located across the creek and up a hollow hundreds of feet from the home itself. Also there is several acres of property that is was stated in the will to have been left to others jointly. However in the will there are a couple of other parts of the land that were specifically not left with the home when it was obvious it was what one would have thought to have been considered part of the home and its yard. But was only left a life estate in that particular part. A garden which was located on the other side of trees that had been planted to separate the main part of the yard, was said to be left as a garden for all family members to us. The main question on this matter is, does the home and the ground it sits on within the enclosed trees consist of any more than just that or does the curtilage and land used with the home expand beyond that.

Martin H Goodall LARTPI said...

On the strict understanding that this comment is not to be treated as legal advice (see the disclaimer elsewhere on this site), and that it is made without liability, it would seem to me that the same meaning would be given to the term ‘curtilage’ in this case as in the cases cited in the several posts on this topic in the blog, i.e. the dictionary definition, as interpreted by (among other cases) Sinclair-Lockhart’s Trustees and Skerritts of Nottingham. But that may not be the whole answer, in view of the added words “or the land used with the home”. So you should seek proper legal advice from a solicitor specialising in probate matters. If you would like to email Keystone Law’s main email address (see the link on the sidebar of the blog) we should be able to find someone within our firm who can help you. We have more than a hundred solicitors in our firm, who cover almost every area of legal practice.

Anonymous said...

In the case of permitted development (for example the updated planning law regarding renewable energy installations eg solar panels), the new legislation states

A.1. Development is not permitted by Class A if—
(g) the solar PV or solar thermal equipment would be installed on a listed building or
on a building within the curtilage of a listed building.

We are looking at a project on a commercial building which sits close to a listed building (the project building is not listed):
- they are not connected
- they are not in anyway inter-dependent on eachother
- there is a road between the buildings (not adopted)
- thy buildings are BOTH owned by the same landlord (but could easily be sold as entirely separate assets if needs be (ie they are readily identifiable as two separate buildings).

I assume we are ok to go ahead as curtilage cannot extend to another building that is to all intents and purposes separate?

thanks

Martin H Goodall LARTPI said...

I do not have sufficient information to enable me to answer the precise point which has been raised in the above query, but the most relevant judicial authority on this issue is the Court of Appeal decision in Skerritts of NottinghamIt should also be borne in mind that the earlier decision of the Court of Appeal in A-G v Calderdale BC is authority for the proposition that one building may come within the curtilage of another if there is some historical connection of the ‘other’ building with the principal building. So, the answer in this case will depend on the precise facts. I think I would need formal instructions in order to be able go into this further.

If the ‘other’ building really does not lie within the curtilage of the Listed Building, then that other building is not itself listed, and so normal permitted development rights should apply. However, as I have indicated, it would need further investigation before this question could be answered with any certainty.

David said...

I'm interested in how the concept of curtilage applies to commercial buildings. We live in London near a business that it permitted to load its vehicles within the curtilage of the building. I don't know if that includes all of the yard and car park area adjacent to the building, or none of it and loading should be carried out only inside the building itself. I'd be grateful if you could point me to any definitions or case law.

Anonymous said...

My local rugby club wants to host a temporary (28 day) campsite during the Olympics. The Local Authority consider that this would not be considered permitted development as they view the rugby pitches to be within the curtilage of the club house, even though the clubhouse performs an ancillary role to the primary function of the land as a rugby club. I would be interested in your view on this.

Martin H Goodall LARTPI said...

The question is whether the dog is wagging its tail or whether the tail is wagging the dog. For example, the playing pitch at Wembley Stadium and at most other major football stadiums, plus major rugby grounds such as Twickenham and the Millennium Stadium in Cardiff, etc. would almost certainly be seen as being within the curtilage of a building. However, if the clubhouse of a local rugby club really is purely ancillary to a playing pitch which is not surrounded by stands for spectators, and if the use of the clubhouse is purely ancillary to the playing pitch, training pitches and other outdoor facilities, then that playing pitch (and the other outdoor areas occupied by the club) would not appear to be within the curtilage of the clubhouse. However, the position could be affected if the clubhouse has a bar and lounge which is in regular use on days other than match days, especially if the clubhouse facilities are available for hiring out for other events. This might be seen as a case of the tail wagging the dog, and in those circumstances the playing pitch etc, might be seen as being within the curtilage of the clubhouse. So, as is so often the case, it will be ‘a matter of fact and degree’, and I could only comment in more detail if fully briefed on the specific facts on a fee-paying basis.

Martin H Goodall LARTPI said...

Referring back to David’s query, the concept of ‘curtilage’ applies to commercial buildings in much the same way as it does to dwellings. The extent of the curtilage would have to be determined on much the same principles as apply to dwellings, and the leading cases (such as Sinclair Lockhart’s Trustees and others) would be applied in a similar manner. As always, the question will be one of ‘fact and degree’, but the curtilage in the case mentioned by David would probably include the whole of the yard, and also the car park (unless, possibly, the car park is in a separate area detached from the area immediately adjacent to the main building itself). The fact that the condition refers to the loading of vehicles with in the curtilage of the building is a clear indication that loading is not restricted to the interior of the building. It should at the very least be permissible within the yard, although arguably this might not extend to the car park.

Fiona said...

Dear Martin,

I’m trying in earnest to get some simple clarity regarding a curtilage issue.

Are we correct in thinking;

1. If our house (former barn) was sold off prior to the main farm house being listed in 1984, we would not now be under it’s curtilage?

2. Can another listed barn dwelling (which is 20 metres away and has a wall between us and them), but had the same owner as ours at the time of listing, cause us to be under their curtilage, or as I understand it, we would only be under their cartilage if it was the Farm house. Meaning a Barn cannot put another barn under cartilage?

Thank you, such a grey area!!!!

Martin H Goodall LARTPI said...

These comments on Fiona’s query must be subject to the usual proviso that they are made entirely without liability, and they must necessarily be tentative due to my not having all the facts before me.

It appears to me that the separation of Fiona’s home (a residential barn conversion) from the main farmhouse which was later listed, before that listing occurred in 1984, must have removed Fiona’s property from the curtilage of the building which was later listed, so that Fiona’s house is not itself listed.

The position with regard to the other listed building would appear to be similar. If there was no functional connection between the two barns at the time of the listing of that other barn, then it seems unlikely that Fiona’s home could be said to have been within the curtilage of the other barn, and it would not therefore have been included in that listing. But the position is not quite so clear here, because of the common ownership. One barn might conceivably have been within the curtilage of the other barn, but this depends on the functional relationship (if any) of the two buildings at the time the other barn was listed.

However, I would need to take formal instructions in order to be able to give proper legal advice on the matter.

Fiona said...

Thank you Martin,
Just to refer to the paragraph below re - functional relationship -what extent determines a function - and what if we are not able to prove it didn't have function at that time related to our dwelling?

One barn might conceivably have been within the curtilage of the other barn, but this depends on the functional relationship (if any) of the two buildings at the time the other barn was listed.

In addition our house (former barn) was also used as the principal dwelling for the new owner. From what I have read, it would be unusual to place principal owners building under curtilage from a listed outbuilding?

Thanks Fiona

Martin H Goodall LARTPI said...

In referring to the functional relationship of the two buildings I had in mind the words in Sinclair-Lockhart’s Trustees v. Central Land Board (1950) 1 P&CR 195, where it was held that: “The ground which is used for the comfortable enjoyment of a house or other building may be regarded in law as being within the curtilage of that house or building and thereby as an integral part of the same although it has not been marked off or enclosed in any way. It is enough that it serves the purpose of the house or building in some necessary or useful way.” It should be noted that those words apply not only to the curtilage of a house, but to the curtilage of any other building.

Only if the barn now occupied as a dwelling by Fiona fulfilled that sort of subsidiary role in relation to the other (listed) barn (i.e. it served the purpose of the other barn in some necessary or useful way) at the time the other barn was listed, would her barn have been within the curtilage of the listed barn and therefore be included in the listing of that other barn.

As Fiona observes, it would be unusual for one barn to be treated as being within the curtilage of another barn. So it does seem unlikely that her home can be said to be included within the listing. However, as I mentioned before, these comments are made entirely without liability. I would need to be professionally instructed if a definite answer to this question is required.

Michael Bly said...

I have an interesting legal situation. About 18 months ago I bought an area of my next door neighbour's garden which was adjacent to mine. I subsequently acquired planning permission to erect 4kw ground standing PV panels on the land. It was necessary to prove to Planning that the land acquired was actually previously used as a garden. This was proved by historic photo's showing mown lawns with established blossom trees and garden shrubs.
Subsequently, I erected a timber summer hut on the acquired land believing in good faith that Planning permission wasn't required for this kind of erection which conformed to the required parameters.
This hut cannot be seen from any public road, path or area and can only be seen from my neighbour's land and has become a valuable asset to my property.
The Planning Authority became aware of this and said I required retrospective planning approval because the hut was not erected on the ORIGINAL CURTILAGE of my home but had been transferred from my neighbour's curtilage and therefore did not qualify.
I was subsequently refused permission for the hut on the grounds that the "development is by nature inappropriate within the Green Belt and is harmful to the openness of the Green Belt and it is therefore contrary to the aims of the National Planning Policy Framework." This was never previously been mentioned as a possible objection.
Had the hut been erected prior to transfer of ownership of the land, you would assume that it would have never required Planning Approval but ownership could have subsequently been transferred without objection?
I seem to have been 'sold a dummy' by the local Planning Authority who objected on grounds of curtilage but rejected it for completely different reasons!
Can curtilage be transferred with purchase of adjacent garden? If so, did the hut even require permission in the first place?

wendy said...

With regard to the division of garden land in order to create a plot, would an Article 4 direction that applied to the house and garden still apply to that part of the garden now sub divided off?
In other words, land no longer within the curtilage of the dwelling to which the Article 4 order applied.

This would presumably mean that Conservation Consent was required for demolition of the boundary wall fronting the highway of the plot rather than planning permission.

Also as a matter of interest,does the land divided off become a separate planning unit in planning terms?








Martin H Goodall LARTPI said...

Michael Bly’s comment is another of those that have been awaiting moderation for several weeks (for which I apologise). If the land in question was lawfully included within a planning unit that was in residential use (as appears to be the case), then the transfer of its ownership should not have affected the position. The judgment in Sumption would appear to suggest that the curtilage can be readily extended, and that there is no qualifying time before it can be so treated. The proviso is that the curtilage can only be extended into an area which is already lawfully part of the residential planning unit, which would appear to be the case here. So I can’t help feeling that the timber summer house was Permitted Development after all, but I would require proper instructions to be able to check out the position properly. I certainly don’t accept that PD rights only apply to the original curtilage.

Martin H Goodall LARTPI said...

In answer to Wendy (12 August), the Article 4 Direction would apply to the whole of the area designated in the direction, so subdivision of any units within the area covered by the direction would make no difference – they would still be subject to the direction. The Article 4 Direction can only remove or restrict Permitted Development rights; it does not impose any other controls. Conservation Area consent would be required for the complete (but not partial) demolition of a building within a conservation area. This is unaffected by PD rights or any Article 4 Direction.

Land divided from the planning unit of which it originally formed part will become a separate planning unit if it is separated both physically and functionally from the remainder of that land. With the exception of the subdivision of a dwellinghouse (see section 55(3)), the subdivision of a planning unit does not in itself constitute development, provided its use remains the same as it was before the subdivision.

Janet Reilly said...

Hello - I wonder if you are able to clarify a small matter for me. A developer is proposing to build just under 100 properties in the field behind our house. Our property backs directly onto the field with quite literally half a metre between the house and boundary fence (which we erected). The developer is proposing that the houses that will back directly onto ours will have small amount of "Heavily landscaped green open space within the curtilage of plots 68 & 69" (i.e. the two new houses). Our concern is such that if the land belongs to the new plot owners, are they able to use the space as their garden meaning that we will lose all privacy. All our downstairs windows back directly onto the field. We will essentially be looking into someones garden, and they in turn will be looking into our house. Our fear is that they may also erect a large fence, thereby blocking out all our natural light. As our cottage is 250 years old, we are also on lower ground and so you can see my concerns on privacy and need to fully understand what curtilage means.

Thank you

Martin H Goodall LARTPI said...

Janet’s question doesn’t really relate to curtilage as such. This is not so much a question of what residents of the new development would have the right to do - they would naturally have the right to use the whole of their property for all normal domestic activities. Their right to erect fences would arise from Part 2 of the 2nd schedule to the GPDO, but this right could be removed or modified by a condition attached to the planning permission.

However, what the situation calls for is a robust objection to this application on the grounds of its serious detrimental effect on the residential amenities of neighbours, including noise and disturbance, overlooking, loss of privacy, and so on. For further information, see my guide - “How to object”, - which can be accessed by clicking on that title at the head of the Home page of this blog.

Lindy said...

We had a 3Kw solar panel system installed about 13 months ago. A neighbour has complained to the local authority (Dacorum Borough Council) and their Conservation Officer has said that two of our panels "affect the setting of curtilage listed buildings". Apparently we have to move them, remove them or apply for permission to keep them.

Comments please?

Martin H Goodall LARTPI said...

In response to Lindy’s query of 15 October, what the planning officer said doesn’t appear to make sense. If the solar panels are actually within the curtilage of a dwelling which is itself a listed building, then they would not be Permitted Development. However, if they are not in the curtilage of any listed building, then the current provisions of Part 40 of the Second Schedule to the General Permitted Development Order will apply. The possibility that they might affect the setting of nearby listed buildings should not affect the position. However, if you are in a conservation area, note the restriction on solar panels visible from the highway. In all cases, it is necessary to bear in mind the conditions in paragraph A.2.

It may be this last point that the planning officer has in mind, but if the solar panels have been located as inconspicuously as is practicable, bearing in mind the need for them to face towards the sun, then there really ought not to be a problem.

Anonymous said...

We live in a farmhouse, with some six barns around it. The farmhouse was listed in 1983. Three of the barns were given planning permission(not listed planning permission)to be used as car workshops in 1985. Later in the same year the listing was amended. There was no mention in either listing documents for the farmhouse in 1983 or 1985 of the barns or surrounding buildings. The planning permission for the workshop/barns was renewed in 1993, 1996 and 2003. No mention was made of them being curtilage-listed in any of the planning permissions granted. When I put solar panels on the workshop/barn a year ago I was told by the council I needed listed planning permission. Although I have been fighting to gain listed planning permission for a year, it now occurs to me that as the workshop/barn has never been required to have it for its operation, the solar panels on the workshop/barn don't need it either. Am I right?

Martin H Goodall LARTPI said...

The answer to the question posed in this case will depend on the precise facts, which are not entirely clear from the necessarily brief summary in the comment. I suggest that my enquirer might find it useful to look at the judgment in R (Egerton) v. Taunton Deane BC [2008] EWHC 2752 (Admin), which dealt with this issue. But it would still depend on the precise facts of the current matter as to whether any of the barns were or were not within the curtilage of the farmhouse at the time of the listing, and were therefore included in the listing. However, on the basis of the Taunton Deane case, and another case on which I was instructed to advise recently, I would suggest that in many instances, nearby barns will not be within the curtilage of the listed farmhouse and so will not themselves be listed.

Anonymous said...

I would appreciate your thoughts in relation to a farmhouse and its barns as to whether they all form a single planning unit , the reason for asking the question is that if in time a decision is made to replace the farmhouse with a new dwelling ie a replacement dwelling and reposition it where the barns are currently , does the fact that the farmhouse has what is in effect a identifiable domestic curtilage within the "planning unit" mean that the replacement dwelling would need to sit where the current farmhouse sits ?

Martin H Goodall LARTPI said...

I must apologise for the delay in moderating this comment. The answer to the question is that the farmhouse will almost certainly be a separate planning unit (used as a single private dwellinghouse within Use Class C3), while the other buildings will be part of the agricultural unit. Only if the farmhouse has been turned exclusively into the farm office and is no longer occupied as a residence would it then form part of the same planning unit as the rest of the farm.

If any of the nearby barns is being used for purposes purely ancillary or incidental to the residential occupation of the farmhouse, then that building (or those buildings) might come within the same planning unit as the farmhouse, although this would have been a material change of use, which would become immune from enforcement only after 10 years of continuous use as part of the residential property.

Planning permission will be required for a new farmhouse. (It can never be permitted development under Part 6.) Its location will simply be a question of convenience, and its acceptability will be subject to the usual planning considerations. A reasonable curtilage around the new farmhouse should be acceptable, but this again will be a matter for consideration, initially by the applicant, and then also by the planners.

Peter said...

I rent land adjoining my listed dwelling house to park my cars. It is not fenced and to outward appearance it is part of my garden, though legally under separate title/ownership (both titles are registered)

I have the owner's permission to build a garage on the land but the Council say that the garage must be built in a style sympathetic to the listed building as it is within its curtilage.

Does separate ownership take land out with the curtilage of a listed building?

Martin H Goodall LARTPI said...

I can’t really answer questions of this sort when posted as comments; I would need more information. If the proposed garage is within the curtilage of the listed building it cannot be built as Permitted Development. If it is outside the curtilage of Peter’s house, the proposed garage cannot be built as Permitted Development. I would need to be properly instructed in order to advise as to whether there is any loophole by virtue of the subsequent addition of land to the planning unit since the house was originally listed, and which has also as a matter of fact and degree been taken into the curtilage, but this would turn on a careful interpretation of the definition of “curtilage” as used in the limitations and exclusions in Part 1, Class E. Right now I haven’t got time to look it up.

Rusty said...

Can anyone help me please on the subject of curtilage? We have a building plot within our garden area and presume this is within the curtilage of our house. We have a separate building plot across the road in our field and would like to know if this is also within the 'curtilage' of our house. would anyone know the answer please?

Martin H Goodall LARTPI said...

If Rusty has followed the discussion on this and other related posts in this blog, he/she will realise that the building plot across the road in a field cannot possibly be within their curtilage, and in fact it is probably not even within the same planning unit as their house (although there are some circumstances in which it could be – it depends on the precise topography and layout of the land). As regards the building plot “within our garden area”, it very much depends on the precise layout and use of the garden as to whether this is within the curtilage of the existing house or not.

However, if this area of garden land is intended to form a future “building plot” it frankly makes no difference whether it is within the domestic curtilage or not. A new house in that location will require planning permission, and its acceptability in planning terms will depend on the relevant policies that apply in that area. If it is within the same planning unit as the existing house (irrespective of whether it is within the actual curtilage of the dwelling) it might possibly be treated as ‘previously developed land’, but this does not automatically guarantee that planning permission would be granted for further development, especially if the site falls outside the confines of any designated development boundary.

It seems to me that Rusty is asking the wrong question here. He/she needs to look at the relevant planning policies, not only in the NPPF, but also in the local Development Plan (whatever form that document or collection of documents currently takes). This may require appropriate advice from a planning professional.

Jason said...

I live in a 4 acres plot and in this plot we have 3 very large old commercial glasshouses totalling around 2000 square meters. I asked my local planning authority if I could remove one as a trade off for an extension on my house (we have used all our permitted development rights and can't get planning permission as we are not allowed to build materially larger than the original cottage. Even though these glasshouses (permanent structures) are in the site boundary, I was informed they fall outside of the domestic curtilage and therefore can not be used as a trade-off. I cannot find any reason in the NPPF why a trade off must be in the domestic curtilage.

Is the council correct ?

Page 55 of the NPPF has the only reference to curtilage under annex 2 : “Previously developed land” is or was occupied by a permanent structure, including the curtilage of the developed land.

Martin H Goodall LARTPI said...

I am afraid that the planning system does not work quite in the way that Jason implies. The thinking behind the restriction on the size of domestic extensions in the Green Belt or in open countryside relates to the desirability of retaining small dwellings that are still affordable for people who work in those areas. It is not just a question of ‘trading off’ one form of built development for another. The glasshouses were built and were formerly used for commercial purposes; they don’t form part of the residential development of the site and, arguably are not even within the same planning unit. So arguments about ‘previously developed land’ may not be of much help in this case. Redevelopment of the site occupied by the glasshouses for some other commercial purpose might be a possibility (subject to planning permission), but this will not assist Jason in the present case.

Anonymous said...

david asks....

a developer purchased a range of barns & outbuildings & converted 1 to a residential dwelling which he then sold but retained the others for personal use, is it possible to apply for a change of use from agriculture to "domestic storage" for the other barns as these would no longer be within a reidential curtilage? (as stated he sold his interest in his converted barn)
many thanks

Anonymous said...

Hello, I am wondering if you could help me please. I live in a grade two listed former farm house and the listing doc refers to the brickwork, door and surround and quoins of the front elevation of this building. At the time of listing there where three other buildings within the curtilage. However, the curtilage buildings have undergone quite some changes, one has been demolished and plans have been passed for a replacement dwelling (unfettered in lbc terms as the original building does not now exist). The second (a cottage) has been converted; and the remaining building - a barn has a planning and lbc approval to convert into a dwelling. The original curtilage area is now all subdivided by fences as a result of the permissions granted. The barn does now not relate to the listed farmhouse and the curtilage as it faces inwards. The barn is now in real danger of collapsing and I have had a meeting with the planner and conservation guys with the view of demolishing and replacing with a couple of dwellings in character of the barn and all as they keep saying is that it's listed and we have to work with it. The building is too expensive to convert because of the amount of work that is required to stabilise and replace. The building does not now relate to anything in the previous curtilage, is not in the listing doc -is there a way of clearing the curtilage listing without delisting the former farm house? Many thanks

Jim said...

Having read the earlier bloggs about curtilage, I was wondering if you could point me in the right direction of three questions I have.

In my area there are traditional farms with house, yard and surrounding buildings. Would curtilage include the yard and buildings or would there be some separation between the farmhouse and any garden, and, the rest of the buildings/yard?

Perhaps with reference to McAlpine v's SOS, where a house was within say 2m of a plot boundary, what would be the curtilage position of a plot of land just beyond the 2m (that was agricultural from the point of planning use but had certain drainage rights, septic tanks, etc,) if that plot of land were aquired to extend a garden and gain uncomplicated access to drainage and septic tanks? This plot of land to be aquired would have been originally part of a farm to which the house was the farm house, and apart from the drainage there is some evidence of old buildings in the plot area.

Would an agricultural shed built upon that aquired land under agriculturally permitted planning development, end up being within the curtilage of the house?

Martin H Goodall LARTPI said...

In answer to David’s question, it all depends! The only way forward would appear to be by informal discussions with the planning officer (if necessary as part of a pre-application consultation, for which the council will charge a fee) to see what scope there may be for planning permission being obtained for change of use.

It seems that the barns the developer retained were not in practice used by him for agricultural purposes, and this in itself may be a factor in favour of a grant of planning permission for their ancillary residential use, depending on how long it has been since they were last used for agricultural purposes. Beyond this, I don’t think I can usefully add anything.

Martin H Goodall LARTPI said...

On the de-listing question posed above, it all depends on the age and character of the barn. It is certainly included within the listing. So its demolition or alteration would require listed building consent De-listing is difficult to achieve in practice. The responsible department is the Department of Culture Media and Sport. The local planning authority would undoubtedly be consulted by DCMS, but it is ultimately the Secretary of State’s decision as to whether de-listing is justified. This will depend not only on the ‘listable quality’ of the barn itself but its relationship (in visual terms) with the listed farmhouse. The alternative to de-listing is an application for Listed Building Consent for demolition of the barn. It’s not going to be an easy ride whichever course is taken.

Martin H Goodall LARTPI said...

In answer to Jim, I assume we are not looking here at the extent of the curtilage of a listed farmhouse for the purposes of listed building control, but are simply considering the extent of permitted development rights under Part 1 of the Second Schedule to the GPDO.

The original curtilage would be confined to the area around the house that was in actual domestic use (including any domestic garden). Arguably, any agricultural buildings near the house that remained in agricultural use would, by their very nature, be outside the domestic curtilage. I am not sure that the case of McAlpine is of any assistance here.

The position may possibly have changed over the years and, as the judgment in Sumption indicates, the domestic curtilage of the house can be extended at any time, provided that what is claimed as curtilage is within the same lawfully established planning unit as the house.

The position regarding an agricultural shed built as agriculturally permitted development (under Part 6 of the Second Schedule to the GPDO) could be slightly problematic in view of condition (5) in Part 6, which provides that if the use of the building for the purposes of agriculture within the agricultural unit ceases within 10 years of its erection, that building must be removed from the land (unless planning permission for its retention has been granted within 3 years after its agricultural use ceased).

This brings us back to the question of the lawful extent of the residential planning unit, which would not have included the barn while it remained in agricultural use. So the barn could only end up being within the curtilage of the house if it has been lawfully incorporated within the same planning unit as the house, either as a result of planning permission for change of use or after a lapse of 10 years following an unauthorised change of use.

Like all material in this blog, this comment is subject to the usual disclaimer. A more detailed answer would require formal professional instructions on a fee-paying basis.

Anonymous said...

Hi Martin My friend owns a restaurant and lives above it with his family and pays domestic rates for the flat and commercial rates for the ground floor business .There has been a static caravan on the land next to his garage for many years which has been used for family staff and friends ancillary to his home .The local planning department refused permission for the caravan back in 2006, he asked permission as my friend did not realise he was allowed to use it ancillary to his home .The local planning department now say they want it removed and say it is a business premises not a dwellinghouse and outside its curtilage Please could you post your opinion as I think they are wrong and this is causing him great anguish.f regards Natalie

Martin H Goodall LARTPI said...

In answer to Natalie’s question, and on the basis of the facts as stated, this does not appear to be a property to which permitted development rights would attach under Part 1, Class E of the Second Schedule to the GPDO. The residential accommodation is in the form of a flat, and the GPDO makes it clear that flats do not have the permitted development rights that attach to houses. The static caravan might well be treated for planning purposes as a building or structure, but if it has been in place for at least 4 years, it is possible that it is now immune from enforcement and therefore lawful. This is a necessarily brief comment based on limited facts, and so I must emphasise the disclaimer of liability that applies to all material published in this blog (as explained in the introduction).

Martin H Goodall LARTPI said...

A further thought on Natalie’s query: If the caravan is within the curtilage of a dwellinghouse, and is used for a purpose that is incidental to the enjoyment of the dwellinghouse as such, it might benefit from the exemption provided by paragraph 1 of the First Schedule to the Caravan Sites Act 1960. However, whilst the garden mentioned by Natalie may (possibly) be within the curtilage of the building containing the restaurant, with flat above, I am not sure whether it would necessarily qualify as the curtilage of a dwellinghouse. This would require further consideration (which I am not in a position to give to the question in the immediate future). This would in any event be fact-dependent in the particular case.

Folk for Heroes said...

Martin,

First may I congratulate you on such a useful and well informed blog.

I have a house on one side of a road (unclassified) in the countryside. I own land across the road, opposite the house, part of which is wooded and unused for any purpose, and part is used as a parking area. The parking area is accessible directly from the road through a five bar gate. The area is behind a dry stone wall.

The rest of the land is separated from the parking area and accessible through another five bar gate. My neighbour owns land adjoining my parking area, which he accesses over my land. There are sheds and outbuildings on his land, but no buildings on mine.

By way of further background, the land abutting the parking area is a long narrow strip that gives access to a lake shore. The land was transferred to my property as a land swap with the neighbour in 1970.

My parking area has clearly been in domestic use since the 1970s at the latest.

So here are my queries:-

a) do you think that my parking area can be part of my residential curtilage if separated from the house by a public highway?

b) The land clearly was not part of my residential curtilage before 1970. Can a residential curtilage be expanded by the acquisition of additional land, such as the parking area in my case, or is a residential curtilage fixed for all time?

c) Am I right in concluding that unless the parking area forms part of the residential curtilage, I cannot erect even a wooden shed without planning permission? ( I have a large log pile on the land, which I want to house in a wood shed, where the wood now stands, behind the stone wall)

I hope this is something you can comment upon.

Thanks
Steve

Martin H Goodall LARTPI said...

It is impossible to answer a question such as that posed by Steve (Folk for Heroes) without rather more detail. However, it seems a little unlikely that a parking area separated from the dwelling by a public highway can be regarded as being within the domestic curtilage of a house on the other side of the road. Furthermore, since the parking area is by definition forward of the part of the house nearest the highway, a wooden shed could not in any event be erected on that location under Part 1, Class E of the Second Schedule to the GPDO.

Although the point is academic in the context of this particular query, the curtilage of a dwelling can very easily be extended (see the case of Sumption v. Greenwich LBC), but only if the area into which the curtilage is extended is lawfully part of the same planning unit as the house. But this doesn’t help Steve in the present case.

Martin H Goodall LARTPI said...

Someone called Giles left a comment on this item on 22 June that was far too long and of too detailed a nature to be reproduced here. This was a query that clearly requires careful consideration based on its precise facts, and is the sort of point on which Keystone Law’s planning law team would be happy to advise if we were to receive instructions in the matter. An email direct to me at martin.goodall@keystonelaw.co.uk will enable me to assign it to an appropriate team member.

Anonymous said...

Hi Martin, my new neighbour has (whilst I have been away on holiday) built 3 large outbuildings on a plot of land that was previously a paddock behind my and three of my neighbours gardens. The plot of land has always been agricultural land and the views across open fields were a deciding factor in our buying our home.

We live in a conservation area and my neighbour does not appear to have made any planning applications apart from to cut down some hawthorn. The new buildings block our view and are easily as large as a small bungalow. The paddock adjoins his garden to the side but is not and never has been garden.

I would be interested to know whether you would consider the paddock to be outside the domestic curtilage of the property? And if so, how would we go about getting the buildings taken down?

Many thanks.

Martin H Goodall LARTPI said...

From the information given, it seems unlikely that the paddock could be claimed to be within the curtilage of the neighbouring house. Thus the three buildings would not have been permitted development and would require planning permission.

A complaint regarding this apparent breach of planning control should be made (preferably in writing - e.g. by email) to the council’s planning enforcement team.

Rather than immediately serving an enforcement notice, the council might invite the developer to submit an application for retrospective planning permission (to which neighbours could object). Whether planning permission might be granted would depend on the applicable planning policies and other material considerations, including the effect of these buildings on the residential amenity of neighbouring properties, etc.

Anonymous said...

A local situation. Planning permission granted for a house with integral garage on a large site in the countryside. Said house and small area around it sold by the builder. Builder now constructs a separate garage on another part of the site still owned by him (behind the house and adjacent to it) and claims this is permitted development since he intends to sell it to the house owner at some unspecified time in the future. The garage is physically fenced off from the house and has a separate access. The builder is currently using it in connection with his business. So its within the planning unit as I understand it but clearly is not at present incidental to the enjoyment of the dwelling house or within its curtilage. Do I have grounds to ask the local authority to intervene?

Many Thanks

Martin H Goodall LARTPI said...

If you think there has been a breach of planning control, you should draw this to the attention of the council. You don’t need grounds to do so; it is up to the council, when they have been alerted to the matter, to decide whether or not there has been an actual breach and, if so, whether it is expedient to take enforcement action, or what other action (if any) they should take in the matter.

For what it's worth, I am reasonably sure that this is not permitted development. It requires planning permission and the council should definitely be told about it.

Tina said...

Hi,

I have been living in my house for over 4 years and have always used the field I own at the rear of my house as part of my garden (climbing frame trampoline and flowers). How long do I need to continue using it like this before it becomes classified as domestic use with out receiving planning permission?
Thanks
Tina

Martin H Goodall LARTPI said...

In answer to Tina's query, the change of use of the extra land taken into a domestic garden, if that land had previously been in some other (non-residential) use, e.g. agricultural, will not become immune from enforcement and therefore lawful until there has been 10 years’ continuous and uninterrupted use of that land following the unlawful change of use. The 4-year rule only applies to the unauthorised change of use of a building to use as a single private dwellinghouse. A reasonable area of land included in that unauthorised change of use and forming part of the residential planning unit thereby created would also be covered by the 4-year rule, but where extra land (which was not already in lawful residential use) is added to an existing dwelling, the change of use of that extra land is governed by the 10-year rule.

(See also the post on "Curtilage and Lawful use" published on 10 July 2013)

Martin H Goodall LARTPI said...

That should be - "Curtilage in relation to lawful use" published on Tuesday 9 July 2013.

Karen said...

Dear Martin

We are considering adding an 8x6 summberhouse/cabin to our garden. The area is at the back of our property and at the end of a stepped garden. Previously this has been used as an area to park a car for the residents of the property but we have converted this into planted and sitting garden area - fenced to make it more private and more contained for our dog. The land on which this sits is within the garden curtilage and the land which runs on from it is also our land and extends to the farmers field at the back of the property. As we live in a row of old mill cottages access from the garden areas to the perimeter wall of the field has to be left free for vehicle access which it does. Therefore, by not affecting this, can we add a summerhouse to this garden area? We do not intend to convert the garden to allow a car to park there as we enjoy our outside garden area too much and the summerhouse would mean that we would have more use of tghe garden in more inclement weather. Our council plannig have said that it is fine so long as it is within our garden curtilage.
regards
Karen

Martin H Goodall LARTPI said...

I trust that Karen is aware that this is public forum. Individual queries might be better sent by email. But to deal very briefly with this query - as the planning officer has pointed out, it entirely depends on whether the proposed location of the summerhouse/cabin is actually within the curtilage of the house. The query as written does not give me enough information to be able to answer that question, but it is the sort of point on which Keystone Law’s planning law team would be happy to advise if we were to receive instructions in the matter.

Anonymous said...

Is there any case law or a definitive ruling on what curtilage means in relation to the Hedgerow Regulations 1997 are you aware please? Many thanks.

Martin H Goodall LARTPI said...

I assume that this query relates to Reg 3(3), which provides that the Hedgerow Regulations do not apply to any hedgerow within the curtilage of, or marking the boundary of the curtilage of, a dwelling-house. The word ‘curtilage’ is not defined in the regulations, and so it must bear its ordinary meaning, as it does for the purposes of almost all other planning legislation. (I am aware of one exception where ‘curtilage’ is given a special meaning for the purposes of one particular provision, but this has no application in the present context.)

I am not aware of any case law or definitive ruling as to the interpretation of ‘curtilage’ for the purposes of Reg 3(3) of the Hedgerow Regulations. The appropriate criteria must therefore be taken to be those identified in the relevant judicial authorities on the ordinary meaning of ‘curtilage’, including Sinclair Lockhart’s Trustees’, Skerritts of Nottingham and Sumption.

David said...

Hi Martin,
I have just endured a pre planning meeting with curtilage the word of the day. The Council have a strict non development outside of the curtilage. In my cases this is a hedge planted years ago of an irregular shape. Clear evidence of domestic usage outside said curtilage is clear with a washing line. Second issue (if we are restricted to the curtilage), is the new house that would be double the old - 1000sq foot to 2000. This is seen as too large for a plot that by todays standards is large. From the above, are the Council correct to apply the curtilage restriction and can they dictate the size of the new development in view of clear local contradiction?
Thank you
David

Martin H Goodall LARTPI said...

This question does not admit of an answer in this forum, as it clearly requires careful consideration based on its precise facts. However, it is the sort of point on which Keystone Law’s planning law team would be happy to advise if we were to receive instructions in the matter.

Anonymous said...

Hi Martin,i built a bungalow 27 years ago i separated the rear garden with access to it via a cull de sac so the land was not in the same curtilage as the bungalow but the council think it is back land development and refused my planning application for a bungalow .they say i have no permitted development rights on that land because its not in the same curtilage but still view the rear land as rear garden to the original bungalow,my question is can they have it both wats

Martin H Goodall LARTPI said...

Short answer – yes; they can have it both ways.

The separated land is clearly not part of the curtilage of the frontage property (having been separated from it), so no permitted development rights apply to it. But development of that land at the rear might well be seen as ‘back land development’, which the council clearly wants to resist. [These remarks are subject to the general disclaimer that applies to all material on this website – see the Introduction.]

Anonymous said...

Thanks martin for your responce,would the planner be right in thinking the rear land is back land or back garden delopment for one bungalow when its clearly noi longer in the same curtilage as the front planning unit. i was hopeing to put forward an appeal on that basis as the council refuse my application as backland and qouted that it did not comply with planning policy HS10. also they think the access drive which is 14 m inl length would cause undue noise and disturbance to the propertys either side even though people in the cul de sac have beeb using the drive to park on for 27 years with my permission. thank you

Cassie said...

Hi sorry if I'm asking you to repeat yourself, but we own the woodland behind our property and built a log store open sided with a corrugated steel roof, the posts are concreted into the ground. We have been advised by the planning department that we need to apply for retrospective planning as it is outside our residential curtilage, is it advisable to do this or look into moving our boundaries OR saw through the legs and fit brackets so that it is not a permanent fixture?
We have been advised that we would probably be granted planning permission but I am concerned that if our neighbour is asked to comment she will object as I think she reported us to the planning officer, we were completely unaware that we would need planning consent for a log store.
I appreciate your comments
Thank you

Martin H Goodall LARTPI said...

Regrettably, time does not permit me to discuss the point raised by Cassie, as this clearly requires further consideration based on its precise facts. However, it is the sort of point on which Keystone Law’s planning law team would be happy to advise if we were to receive instructions in the matter.

Martin H Goodall LARTPI said...

I published the further comment from Anonymous this morning (posted before Cassie's comment above) simply to illustrate the sort of problems likely to be encountered in such cases.

Clearly the issues raised by the council in that case will need to be addressed in any appeal. My colleagues in our planning law team can advise as to costs in the event that we were to be instructed in the matter.

Anonymous said...

AS far as curtilage is concerned, Would a building on the property be considered part of the residential curtilage if it legally has it's own address?

ie, 349 Mockingbird St. and 349A Mockingbird St.

Martin H Goodall LARTPI said...

Unlikely, but it would depend on the precise facts. This is the sort of point on which Keystone Law’s planning law team would be happy to advise if we were to receive instructions in the matter.

Anthony O said...

I live in an old unlisted famhouse with half an acre of garden and parking area.
When the property was purchased in 1990 an immediately adjacent hay field was included in the sale to provide grazing for a pony.
The property has been sold and resold since then and there has been no pony for 10 to 12 years.
The "field" has been untended and has been planted to encouraged it to return to nature for wildlife. We now regarded it as part of the domestic amenity of the property.
In your opinion might it be regarded as within the curtilage of the property for the purpose of installing ground mounted solar panels?

Martin H Goodall LARTPI said...

In answer to Anthony O - In order to be able to advise properly on the question that has been raised, I would need to be formally instructed in this matter. However, the facts as stated tend to suggest that the “field” would probably not be regarded as being within the curtilage of the dwelling, having regard to the rule in Sinclair Lockhart’s Trustees, so that PD rights under Part 1 of the Second Schedule to the GPDO would not apply to that part of the property. This must, however, remain subject to a more detailed consideration of the relevant facts in the event of our being instructed to advise on the matter.

Glyn Chapman said...

I've recently bought a barn with planning permission for residential dwelling. It has an attached paddock which is outside the curtilage. Only the barn, the courtyard and drive are part of the curtilage. Due to lack of space and the need for a sewage treatment plant and LPG tank, would I be able to put these in the paddock?

Martin H Goodall LARTPI said...

In answer to Glyn - By virtue of the fact that these items will be located in the paddock (and therefore outside the curtilage of the dwelling, albeit in the same planning unit) they cannot be permitted development and will therefore require planning permission. However, subject to the location and design being acceptable, the council may well be prepared to grant planning permission. Before an application is submitted it may be worthwhile to discuss the matter informally with the planning officer.

Sarah B said...

Hello, please help me understand this curtilage minefield?!!
We have set up an outside marquee wedding reception (no civil ceremonies) in the grounds of our private dwelling. We had been led to believe that by obtaining a TENs licence this effectively allowed us to hold 12 events at the property.
We have now been advised by planning that TENs is completely seperate and planning permission is required. We could normally apply the 28 day rule however because we would prefer/choose to site the marquee on a lawn area adjacent to the house (as the house provides a nice back drop and does have a wall and fence between the 2) that this is classed as being within the curtilage of the building and is therefore not allowed and we would either have to locate the marquee in another (closeby) area of the 'garden'(which is actually closer to the nearest neighbour) or apply for full change of use planning. Frustratingly the planning officer agreed that that there is no 'legal' definition of the curtilage area and therefore the planning officer can determine (define) this themselves. The property is not in a residential area (so curtilage becomes a bit of an irrelavant point I would suggest?)there is only one house that is effectively on the boundary (that would be most affected) so it seems ridiculous that we cannot run this type of event/business on a 28 day rule.
Please help as I am losing the will to live!! Your help and expertise is much appreciated.

Martin H Goodall LARTPI said...

The 28-day rule does not apply within the curtilage of a building. The proposed marquee/use, if within the curtilage, does not appear to be permitted development, so it looks as though planning permission will be required (see the Skerritts of Nottingham case.) I am sorry that I can’t go into any more detail without being professionally instructed.

helend said...

We own a woodand (32 acres) and built a barn and wood store there under permitted development. It is sited in a fenced off 2 acre area of the woodland (no neighbours). We wish to rent out this area for private tented camping for groups (under the 28 day rule)

Ideally we would like to offer the covered area of the barn as a communal area to campers in bad weather. It seems that this would not be allowed? How far away from the building would the tents need to be? Also do you have any idea why planners suspend 28 day rule in respect of a building that is not a dwelling? Thank you.


Martin H Goodall LARTPI said...

Time prevents my answering Helen D's question, as it would require some detailed consideration of the facts. However, it is the sort of point on which Keystone Law’s planning law team would be happy to advise if we were to receive instructions in the matter.

Anonymous said...

I have a grade 2 listed building. We have recently aquired the neighbouring land whcih contains a tubling down barn. We wish to repair the stone walls and replace the collapesed roof. Do we require listed building consent (because the barn is now withinthe curtilage of the listed building) or not (because it was not in the curtilage when the cottage was listed) ? Hope you can help. JR

Martin H Goodall LARTPI said...

In response to the anonymous comment of 17/02/14, a detailed answer to this question would require more information as to the precise facts of the matter. However, the general rule is that what is included in the listing is those buildings and structures built before 1 July 1948 which were within the curtilage of the listed building at the time when it was listed. Subsequent changes to the size and shape of the curtilage would not affect the position.

Anonymous said...

I came across this but am not sure that I understand it all. What I am searching for is clarification about part of my own garden. Some neighbours of ours bought a very small field which the then used domestically for years. Out of need they then sold part of it to us which adjoined our garden and it was incorporated into our garden with vegetable plot, extra lawns, and we put a summer house and shed there. This has been like this for about 3 years now. Suddenly the neighbours came round to our house and threatened to have our summer house taken down. There was no reasoning with them we were very upset and shocked. Particularly as we paid a very high price for the bit of land which is about 60 foot by 60 foot. I was wondering how to get the land converted to domestic use so as to protect it from further threat.

Martin H Goodall LARTPI said...

In answer to the anonymous query of 25/3/14 – If the use of the land was changed from agricultural use to domestic use more than 10 years ago, and this use was continuous for the whole of the ensuing 10 years, then it would appear that this change of use has become lawful. The change of ownership would not appear to have affected the position.

Whether or not the land in question has now been incorporated in the domestic curtilage of the enquirer's house is a slightly different point, but the purposes it serves (vegetable plot, extra lawns, etc.) would certainly appear to make it part of the curtilage (as per Sinclair Lockhart’s Trustees). Provided that the use of the land for domestic purposes has become immune from enforcement, and therefore lawful, under the 10-year rule, its more recent incorporation in the domestic curtilage is also an established fact (see Sumption v. Greenwich LBC).

Permitted development rights under Part 1 of the Second Schedule to the GPDO would therefore appear to apply, provided that (as I have indicated above) the change of use whereby the use of the land in question became part of a residential use (originally of the neighbouring dwelling) really has become lawful under the 10-year rule, and provided also that permitted development rights are not precluded either by a condition attached to a planning permission relating to this property or by an Article 4 Direction, or by the building in whose curtilage it is now incorporated being a Listed Building. However, permitted development rights cannot be exercised over this part of the property if its use has not yet become lawful under the 10-year rule. (Also check for any restrictive covenants that may have been imposed when the land was purchased from the neighbour).

Whether the summer house is in fact permitted development may depend on one or two other points that need to be checked out, relating to its size and its precise location within the curtilage and any raised decking that may be incorporated in its construction.

If necessary, the lawfulness of the summer house can be tested by making an application under section 191 of the 1990 Act for a Certificate as to the Lawfulness of Existing Use or Development. However, an application should not be made until it has been confirmed, on proper professional advice, that it is indeed lawful. In fact, if there is really no doubt about the position, it may not be necessary to apply for a certifcate at all, because lawfulness is not dependent on the grant of a certificate to that effect.

(This comment is subject to the usual disclaimer as to liability. We would need to be professionally instructed if the enquirer wants to be certain of the position.)

James W said...

Dear Martin Goodall
I have a question if I may … our cottage is part of a small terrace of 5 dwellings , ours is the 3rd cottage in but our garden sits just after the terrace … we have a small paved courtyard to the rear of the cottage for hanging washing and access but our garden sits 7m further down the lane on the end of the rest of the terraces gardens … we wondered if this is still considered the curtilage and if it is subject to permitted development for a studio … any advice would be gratefully received. Thank you in advance

Martin H Goodall LARTPI said...

The problem posed by James W on 07/04/14 does not admit of an easy answer. It will depend on the precise layout of the property, but as a general rule I would suggest that any area of land separated from the dwelling is unlikely in most cases to qualify as ‘curtilage’.

Patrick said...

I have twice come accross this situation: a small agricultural holding of, say, 15 to 20 acres, with a house, barns and a holiday cottage. In one case, the owner wanted to extend his garden/curtilage by about a quarter acre. In the other, the LPA made him define his curtilage on a plan when he got permission for a house extension.

In both cases, the LPA said he would need planning approval to extend his garden. My view is that the planning unit is a mixed residential/agricultural use and a small exension to the garden would not be a material change of use of the whole.


In principle, who is right?

Martin H Goodall LARTPI said...

I am afraid that I can’t agree with Patrick’s analysis. I would regard the house and the land occupied with it for domestic purposes as a distinct planning unit, separate from the planning unit comprising the agricultural land. Thus extending the domestic garden into the agricultural land would, in my view, be a material change of use requiring planning permission.

I am not so sure as to the correctness of the LPA’s insistence on the ‘curtilage’ being defined when a house extension was built. In principle, this should not have made any difference to the planning unit (see the judgment in Barnett, both at first instance and in the Court of Appeal).

In any event, the curtilage cannot be restricted in this way. Provided a future extension of the curtilage is wholly within the lawfully established planning unit (and does not go outside it) the curtilage can be extended at any time (see Sumption).

Anonymous said...

10 years ago my house was extended and part of a field (agricultural land) was purchased and was bought into use as garden/orchard next to the house. a)How long do you have to use land as garden for it to become part of the curtilage? b)does making the house bigger imply a bigger curtilage? I wish to build a tennis court on this land which will be difficult if the land is deemed outside the curtilage. Any advice/ideas/help appreciated

Martin H Goodall LARTPI said...

There is a limit to the number of times I can repeat myself. This is all set out in the above post and other related posts. Incorporation of land within the residential planning unit is subject to the 10-year rule. Whether in practice it comes within the residential curtilage after that date is purely a matter of fact – see Sumption.