This popular and widely read blog acts as a Legal Commentary on issues affecting Town & Country Planning including recent changes in planning legislation and judicial rulings in planning cases, as well as some thoughts on other issues arising in the course of my work as a Planning Lawyer. It was originally intended mainly for fellow planning professionals, but all are welcome to read it. The views expressed are my own and nobody else’s.
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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
doesnt match caselaw
ReplyDeleteIn 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.
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.
ReplyDeleteInteresting 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.
ReplyDeleteI 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.
ReplyDeleteThe 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).
ReplyDeleteI 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.
ReplyDeleteWhat 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?
ReplyDeleteIf 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.....
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.
ReplyDeleteWe 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?
ReplyDeleteThe comment (or query) posted above is now the subject of a separate post, published on 18 August [“Curtilage problems – a practical example”]
ReplyDeletePLEASE NOTE THAT I HAVE GONE INTO THIS SUBJECT IN MORE DETAIL IN THREE POSTS DATED 6 AND 19 DECEMBER 2011 AND 2 JANUARY 2012.
ReplyDeleteVARIOUS POINTS NOT TOUCHED ON IN THIS FIRST ARTICLE PUBLISHED IN JANUARY 2011 ARE DEALT WITH IN THOSE LATER ARTICLES.
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.
ReplyDeleteOn 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.
ReplyDeleteIn the case of permitted development (for example the updated planning law regarding renewable energy installations eg solar panels), the new legislation states
ReplyDeleteA.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
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.
ReplyDeleteIf 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.
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.
ReplyDeleteMy 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.
ReplyDeleteThe 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.
ReplyDeleteReferring 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.
ReplyDeleteDear Martin,
ReplyDeleteI’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!!!!
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.
ReplyDeleteIt 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.
Thank you Martin,
ReplyDeleteJust 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
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.
ReplyDeleteOnly 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.
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.
ReplyDeleteSubsequently, 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?
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?
ReplyDeleteIn 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?
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.
ReplyDeleteIn 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.
ReplyDeleteLand 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.
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.
ReplyDeleteThank you
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.
ReplyDeleteHowever, 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.
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.
ReplyDeleteComments please?
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.
ReplyDeleteIt 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.
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?
ReplyDeleteThe 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.
ReplyDeleteI 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 ?
ReplyDeleteI 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.
ReplyDeleteIf 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.
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)
ReplyDeleteI 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?
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.
ReplyDeleteCan 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?
ReplyDeleteIf 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.
ReplyDeleteHowever, 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.
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.
ReplyDeleteIs 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.
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.
ReplyDeletedavid asks....
ReplyDeletea 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
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
ReplyDeleteHaving read the earlier bloggs about curtilage, I was wondering if you could point me in the right direction of three questions I have.
ReplyDeleteIn 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?
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.
ReplyDeleteIt 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.
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.
ReplyDeleteIn 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.
ReplyDeleteThe 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.
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
ReplyDeleteIn 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).
ReplyDeleteA 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.
ReplyDeleteMartin,
ReplyDeleteFirst 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
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.
ReplyDeleteAlthough 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.
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.
ReplyDeleteHi 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.
ReplyDeleteWe 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.
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.
ReplyDeleteA 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.
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?
ReplyDeleteMany Thanks
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.
ReplyDeleteFor 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.
Hi,
ReplyDeleteI 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
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.
ReplyDelete(See also the post on "Curtilage and Lawful use" published on 10 July 2013)
That should be - "Curtilage in relation to lawful use" published on Tuesday 9 July 2013.
ReplyDeleteDear Martin
ReplyDeleteWe 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
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.
ReplyDeleteIs 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.
ReplyDeleteI 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.)
ReplyDeleteI 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.
Hi Martin,
ReplyDeleteI 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
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.
ReplyDeleteHi 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
ReplyDeleteShort answer – yes; they can have it both ways.
ReplyDeleteThe 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.]
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
ReplyDeleteHi 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?
ReplyDeleteWe 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
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.
ReplyDeleteI 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.
ReplyDeleteClearly 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.
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?
ReplyDeleteie, 349 Mockingbird St. and 349A Mockingbird St.
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.
ReplyDeleteI live in an old unlisted famhouse with half an acre of garden and parking area.
ReplyDeleteWhen 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?
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.
ReplyDeleteI'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?
ReplyDeleteIn 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.
ReplyDeleteHello, please help me understand this curtilage minefield?!!
ReplyDeleteWe 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.
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.
ReplyDeleteWe 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)
ReplyDeleteIdeally 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.
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.
ReplyDeleteI 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
ReplyDeleteIn 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.
ReplyDeleteI 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.
ReplyDeleteIn 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.
ReplyDeleteWhether 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.)
Dear Martin Goodall
ReplyDeleteI 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
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’.
ReplyDeleteI 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.
ReplyDeleteIn 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?
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.
ReplyDeleteI 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).
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
ReplyDeleteThere 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.
ReplyDeletegood afternoon
ReplyDeletewe have recently purchased a house which has an enclosed swimming pool that was permitted as an extension to the original 1930s house in 1990.
we don't want the swimming pool and wish to convert the (attached) pool room to playroom office and kitchenette.
Am I right in thinking such a conversion does not require planning consent, the swimming pool in an attached building patently being 'incidental to the enjoyment of the dwelling house'?
Does the 28 day rule apply to events held outdoors but arguably within the curtillige of a commercial building( in this case a museum)?
ReplyDeleteTemporary uses under Part 4 are excluded within the curtilage of any building. So no, the 28-day use doesn’t apply in this case (assuming that it is actually within the curtilage of the museum – see Sinclair Lockhart’s Trustees and other relevant cases).
ReplyDeleteAnother very belated answer on my part to an anonymous query of 4 November. The question related to the conversion of an indoor swimming pool built as an extension to the house in 1990. The answer is that, unless there are any other circumstances of which I have not been informed by my correspondent (e.g. a condition in the original planning permission that would prevent any such conversion) the proposed conversion to a playroom would be perfectly lawful. It does not even represent development.
ReplyDeleteExcellent posts above with some really informative advice.
ReplyDeleteI have been refused permitted development for a detached garage on land to the rear of a property. The land is used as a garden in conjunction with the use of the house but is separated by a shared access pathway that runs behind the properties between the rear wall and the garden. The council argue that the separation means the garden falls outside of the curtilage and therefore a planning application is required.
Does 'intimate association' necessarily mean the areas have to be connected?
In answer to Unknown’s comment of 12 July - it depends. These issues are always ‘a matter of fact and degree’. Separation of the area in question from the rest of the claimed curtilage nearer to the house may well take it outside the curtilage altogether, but if the path does not separate the land beyond in any meaningful sense, then it may still come within the curtilage. It would require a site inspection to determine this.
ReplyDeleteHi Martin, near me has been placed an enormous caravan in the front garden. The council say its legal..fine but it cannot be driven on the road..its too wide, its been manufactured to fit exactly the space..and it has been placed on a purpose built plinth a metre above the ground, so it cant be driven off. Surely this can be legal... but the council seem to think as long as its on wheels its legal...crazy
ReplyDeleteI see that I have not previously responded to Kevin Martin’s comment of 30 January. The council have no doubt based their view on the extended definition of a caravan in the 1968 Act. But that only applies for the purposes of site licensing under the 1960 Act. In my view, a mobile home, ‘double unit caravan’, or ‘static caravan’ will usually be a building or structure for planning purposes – see the judgments in Skerritts of Nottingham and the ‘Woolley Chickens’case (reported on elsewhere in this blog). Perhaps this point should be put to the council.
ReplyDeleteHi I wonder if you could help?? The matter of residential curtilage appears quite complex! We purchased a farmhouse with 11 acres of land, this is across three title deeds. The farmhouse is on its own title deed without much land to speak of, there is also a barn which previously had cottages behind it too. We have applied to build a granny annex under permitted development next to the barn where the cottages once stood. However, it would appear we ha e been turned down due to the proposed granny annex infringing upon our agricultural land. What is not clear is where the residential curtilage is, the planners are unable to tell us the boundary of the residential curtilage but have provided that as the reason to decline. I have contacted land registry and they were unable to help. Our architect and solicitor are also both struggling to define where the residential curtilage lies. I'm not sure that it does exist for our property? How would be go about finding this out?
ReplyDeleteIn answer to Rachael J (3 March), I can only point back to what I have written in this blog post and in other blog posts on this subject. There is no hard and fast rule, and the starting point is to apply the test in Sinclair Lockhart’s Trustees, and then to consider the other cases to which I have referred. If Rachael’s solicitor is stumped, Keystone Law could advise, either directly or through that solicitor, upon our being formally instructed and being given the full facts of the matter.
ReplyDeleteHi Martin
ReplyDeleteDoes my approval constitute full site approval?
I applied for planning permission for retrospective approval for extension of residential curtilage to encompass drainage works at the rear of my property
The site is just under an acre plot. The application form was completed with current use as residential. Proposed use as residential
The site plan was all outlined in red with residential curtilage edged in red, no part of the site was outlined in blue
All documents were accepted by the planning department the fact that the area of agricultural land was also outlined in red was not questioned.
Approval was given with a condition attached that the curtilage boundary at the rear and front of the property be demarcated in some way. This has recently been demarcated with a 30cm high hedge at rear, there is a supporting wall to the left of the property and then we have erected a small fence which runs at a 45 degree angle across the front of the property.
The land outwith the residential curtilage is to be kept as open space
There is an engineered drainage area at the rear of the property which encorporates land drains and gravel pit., Further up the site beyond this about 35m from the rear of the property we have created a low bank to protect the property as we have experienced severe flooding around the property. This bank consists of small stone subsoil and gravel which we have planted with native shrubs and trees which is working well in preventing the deluge of water we used to have flooding the rear of the property from the field beyond.
This area was clearly marked on the plan that was approved. So in effect we have the residential curtilage area around the property, then approx 35 metres of land that is/was agricultural and then at the boundary of that we have this engineered bank. Our thinking is that if this bank has approval as the approval sought was to encompass all drainage works, and this bank is part of the engineering works, all the site was outlined in red, the application form stated that the current use is residential and the sought use is residential we feel that the whole site must have been approved. Or is it possible to have one part residential a strip of agricultural and then an area beyond this (the bank) approved as residential.
Could we apply for a Certificate of Lawful use to clarify this?
I cannot advise on situations such as that postulated by my anonymous correspondent of 21 March without formal instructions. However, my initial (and very provisional) reaction is that the key to this question may be found in the judgment in Barnett v. SSCLG [2009] EWCA Civ 476. This established that redrawing the red line on a later application does not have the effect of enlarging the planning unit if the redrawn red line did not relate to the development in respect of which that later application was made. If more detail is required, it will have to be on the usual fee paying basis.
ReplyDeleteHello Martin
ReplyDeleteI am hoping for your help.
We live in a small village called Blackdog in Scotland. We bought the house for its surroundings, overlooking fields and woodland. Unfortunately a new developer will probably start building soon. My question is, Can they use green open land which belongs to the village as theirs? We would like to extend our back garden just to gain a little bit more privacy and not to look at houses but we were told that that might not be possible as the new developer is using the land in question.
I have published Petra Cowan’s question solely in order to point out that this blog deals only with the law in England. Scotland has an entirely different planning system (although it does have an element of similarity to the English system). The Welsh planning system is also now diverging from the English system, and so it is no longer possible to cover Welsh variants in the blog. (In any event, part of Petra’s question would appear to turn on land ownership, which is a different matter altogether.)
ReplyDeleteDear Martin
ReplyDeleteI am the landlord of a substantial Victorian house that was converted into 6 flats in the 80s. At this point, a nearly all of the large garden was sold off to a neighbour with just a small area retained for car parking. The neighbour has recently passed away, and his daughters have asked I would like to buy the land back.
I live in one of the flats, and the prospect of having a garden are very appealing.
My building is also grade II listed, as is the late neighbor's house.
My question is: will the garden be classed as in the curtilage of a listed building, and therefore need LBC applications for matters such as patios, garden sheds and the like? Or was to excluded from the curtilage when it was separated from the house and sold to the neighbour.
Anthony
The answer to Anthony’s question this morning may well depend on precisely when the house was first listed, and the precise extent of its curtilage at that time. Questions of this sort can only be answered after examining the historical facts in some detail, and so would require formal professional instructions.
ReplyDeleteDear Martin
ReplyDeleteI live in a Grade II listed barn in an AONB surrounded by an orchard owned by A farmer who does not live locally. A few months ago the area directly next to our curtilage was fenced off and the farmer attempted to develop it into an ornamental garden, which was stopped by the council. The farmer has now planted some trees on the land and and is installing a vegetable plot for his family's use, purely domestic activity. He has also dug out footings for hard standing for a large parking bay directly next to our patio which the council is in the process of enforcing against. The land has an agricultural title and no permitted development rights. My questions are 1. Is a vegetable patch for domestic use allowed on agricultural land ( the council thinks it is) and 2. Once the footings and hard standing have been removed Can the farmer continue to park on grass next to our patio in the agricultural field even tho this is hugely intrusive to our privacy (we have farm style ranch fencing and rabbit wire). Many Thanks Joesphine
My advice to anyone who raises this type of query is to report the facts clearly and accurately to the planning enforcment officer. Give full details including dates and times. The enforcement officer will need to know precisely what has been done, and can then decide whether it is lawful or unlawful and, if the latter, what action (if any) would be appropriate.
ReplyDeleteThank you for such a prompt reply, much appreciated. We have indeed reported the issues to the planning dept, hence the enforcement against the ornamental garden and parking bay. However, they seem less certain regarding the rules around veg plots for domestic use and parking on agricultural ground and whilst they discourage both, they seem to think nothing can be done. I have researched this extensively and have found many examples where neither have been permitted in other cases so I was hoping you may be able to clarify any laws relevant to either problem?
DeleteMany thanks
On balance, I take the view that this is likely to be a material change of use from agricultural to domestic use, although this will always be ‘a matter of fact and degree’; there is no hard and fast rule of law. It requires an objective judgement after careful consideration of all the facts and surrounding circumstances. Nonetheless, as I have said, it looks to me like an unauthorised change of use.
ReplyDeleteHello, i would grateful if you could let me know your thoughts. We are in the process of buying a grade 2 1700's listed building. It was listed in 1984. A garage was built 1972 and has planning permission but does not show on the council interactive website as in itself listed. The present owner (deceased) changed the roof on the garage (to a flat roof with skylights) from corrugated type some 10 years ago and turned 3/4 of the garage into a home office with wood windows and an interior door. I cannot find any planning or listed building consent for the change and am confused as i thought it was in the curtilage. The front of the garage viewed from the road next to the house looks like a garage still. The vendors solicitors say as its not in itself listed and done over 10 years ago it isn't an issue. Obviously I'm aware once i purchase the house I am responsible if it should have planning. Should it of had planning as in curtilage or not. Does it not matter as done over 10years ago. We are supposed to be exchanging contracts next week :? Thank you, Debbie
ReplyDeleteCommenting briefly on Debbie's query, the garage within the curtilage of the listed building did not exist prior to 1 July 1948, so is not included in the listing. Planning permission is required for any operational development within the curtilage of a listed building (but Listed Building Consent is not required unless the works are physically joined to the fabric of the listed building, or to the fabric of any pre-1948 outbuilding or boundary wall, and the works to the fabric also affect the character of the listed building as such).
ReplyDeleteThe 4-year rule applies to works carried out without planning permission (provided it wasn’t ‘concealed’). The 10-year rule would apply to any change of use, but it sounds as though the use to which the garage has been put is ancillary to the residential use of the dwelling, so is unlikely to have amounted to a material change of use.
A Listed Building Enforcement Notice can be served without time limit with regard to any works carried out on or after 1 January 1969 without Listed Building Consent, but this does not apply in the present case, because no Listed Building Consent was required (provided the garage as built was free-standing, as mentioned above).
I must stress, however, that these remarks must not be relied upon as legal advice. We would need proper instructions to advise, and the complete facts of the case, if a definitive answer is to be given.
I am really confused regarding curtilage. There is a building to the rear of my property which has had a change of use from pub to chapel, meeting halls and community centre. There was a grassed garden area and the church has now converted this to a sports pitch which the council says is ancillary use and is allowed as it is in the curtilage of the property.
ReplyDeleteThe question raised by my anonymous correspondent on 19 July really has nothing at all to do with curtilage. What is relevant here is the planning unit. So the answer to the question depends on the precise nature and scope of the change of use for which planning permission was given, and whether the sports pitch use is within the same planning unit. (I assume it is.) In other words, is this use of land within the planning unit within the scope of the authorised change of use or is genuinely ancillary to it. If, on the other hand, the sports pitch constitutes a separate planning unit, then we are looking at a separate (and presumably unauthorsied) change of use.
ReplyDeleteThank you so much for answering my question, but I am not sure of some of your answer. Are you saying that if Planning for Change of Use was given, and even though a Sports Area was never mentioned in the original Planning Permission, it can be ancillary to it and they don't need permission - All the homes that back on to this (27 of them) have complained regarding constant excessive noise and the council do nothing.
ReplyDeleteIt all depends. One would need to know the full facts relating to this development in order to be able to make any further comment. This really isn’t practicable on the Comments page. It would require proper (paid) professional instructions).
ReplyDeleteIn practice, a claim in reapect of Nuisance may be the most effective way of dealing with the problem, rather than going down the route of potential planning enforcement.
I have received a query from Robert Brown (Monday 5 September), the details of which are rather too complex to admit of a quick answer, and I have therefore refrained from publishing the original comment or query. I would respectfully draw the attention of all readers to a blog post I published earlier this year, stressing that the Comments facility on this blog is not suitable for the type of query that in effect seeks legal advice on a particular situation. We would have to be instructed professionally in order to be able to give this type of advice.
ReplyDeleteHi Martin,
ReplyDeleteI live in a terraced street circa 1900's where all the gardens to each property are separated by a footpath which gives access to the house and the garden. I have built a shed in the garden and received a complaint from the council saying I need retrospective planning permission as the garden is outside of my curtilage. Can you advise if this is correct as reading your other posts I would have thought that the garden was part of my domestic boundary and therefore would not require planning for an outbuilding.
Thanks
In answer to Amanda (24 December 2016), “it depends”. I would need to know the full facts in order to be able to answer this question. This could only be done on the basis of full professional instructions.
ReplyDeleteWe have a possible dispute over a hedgerow. Under The Hedgerow Regulations I understand that the restrictions for removal of a hedgerow do not apply if the hedgerow is within, or marking a boundary of, the curtilage of a dwelling-house even if the land on the other side is subject to the regulations. I am hoping that due to the 'hedge and ditch presumption' that the hedge does belong to us despite the fact that it borders an area of specific scientific interest. we wish to remove part of it to install a gate. However our property sits within a 3 acre field, no garden borders as such just our converted barn in the corner of the field so would it be considered curtilage?
ReplyDeleteThe key to the anonymous query of 14 February, as I think the enquirer recognises, is whether the hedge does in fact form the boundary of the residential curtilage (as distinct from the boundary to the property). On the facts as recited (viz: the property sits within a 3 acre field, no garden borders as such, just the converted barn in the corner of the field), I rather doubt this [unless, possibly, the house is in the corner nearest the hedge in question], but we would have to be professionally instructed in order to be able to advise on the point.
ReplyDeleteMartin,
ReplyDeleteI have joint ownership of a ground floor flat in Cornwall. It is a flat of 4 with a central door access. It is listed. A breeze block wall was removed some 10 years ago to reveal the full open front direct to the highway. I'm assuming that this space roughly 10ft deep and running the length of my flat is my curtilage? No dropped kerb was made and we have used it as parking when there as parking is of a premium in the town. Judging by what 'Anonymous' said in answer to your initial blog, we are making use of said curtilage? My question is,before seeking legal confirmation... is am I to assume that this is fair useful use of the ground; that the ground is indeed our curtilage to generally make useful use of said attached ground that is marked within my individual deeds?
Jeremy
I am very sorry that I had overlooked Kevin Martin’s comment of 30 January. It seems not to have appeared on the comments page, so I’ copy iy here:
ReplyDeleteKevin wrote: “Hi Martin, near me has been placed an enormous caravan in the front garden. The council say its legal..fine but it cannot be driven on the road..its too wide, its been manufactured to fit exactly the space..and it has been placed on a purpose built plinth a metre above the ground, so it cant be driven off. Surely this can be legal... but the council seem to think as long as its on wheels its legal...crazy”
The planning officers are clearly basing their view on the definition of a “caravan” in the Caravan Sites and Control of Development Act 1960, as extended by the Caravan Sites Act 1968, but they may have overlooked the fact that, whilst the stationing of a caravan within the curtilage of a dwellinghouse is exempt from the requirement to obtain a caravan site licence under the 1960 Act, it is not permitted development within Part 5, Class A of the Second Schedule to the GPDO.
Use of any buildings or other land within the curtilage of a dwellinghouse for purposes incidental to the enjoyment of the dwellinghouse as such is not development for the purposes of section 55 of the 1990 Act (see section 55(2)(d)). However, this applies only to the use of existing buildings. The erection of a building within the curtilage of a dwellinghouse may be permitted development within Part 1, Class E of the Second Schedule to the GPDO (but not if it is in the front garden).
The fact that the object in question in this case may be defined as a “caravan” for the purposes of the 1960 Act does not prevent its being a building [or structure] within the meaning of section 336(1) of the 1990 Act. When one has regard to the judicial authorities, such as Cardiff Rating Authority, Skerritts of Nottingham and Save Woolley Valley Action Group, there is no doubt in mind that the object in question is a building that requires planning permission.
If it has been in place for less than 4 years, the legal points explained above should be brought to the attention of the council’s enforcement officer, and the council should be pressed to take enforcement action against this breach of planning control in the absence of any planning application being made for retention of the caravan on its present site. Needless to say, there would appear to be fairly strong grounds for opposing any such planning application that may be made.
In answer to Jeremy Catling’s query of 20 February, what he is referring to is simply the use of land for parking. It is irrelevant whether or not that use falls within the domestic curtilage; what matters is whether it is within one and the same planning unit as the part of the building in conjunction with which that land is being used. If it is within the same planning unit then (assuming it is not being let out for commercial parking) its use would clearly be ancillary or incidental to the residential use.
ReplyDeleteWhere the identification of the curtilage becomes relevant is in relation to any permitted development rights that it is sought to exercise under Part 1 of the Second Schedule to the GPDO. However, this cannot arise at all in the present case, because the building in question is divided into flats (not to mention the fact that it is a listed building).
Can a listed structure which is not a building have a curtilage? I ask because I am in the process of preparing a 'Notification for prior approval for change of use ...' from an un-listed shop with accommodation over, in a conservation area, which stands immediately next to (but not structurally part of) a listed bridge. It has been suggested that if the development affects the curtilage of the bridge it may require listed building consent. This appears to be nonsense to me, but in the absence of a legal definition of curtilage which covers all cases I'm left scratching my head.
ReplyDeleteThe basic definition of ‘curtilage’ was set out in the case of Sinclair Lockhart’s Trustees. It comprises the ground which is used for comfortable enjoyment of the building; it is land that can be said to serve the purpose of the building in some necessary or useful way.
ReplyDeleteI would not agree that a structure other than a building (as normally understood) could never have a curtilage, as any structure can come within the definition of a ‘building’ (see section 336 of the 1990 Act.) However, the nature and use of the ‘building’ in question must necessarily govern or limit what land (if any) can reasonably be said to serve the building in some useful and necessary way. Land at the approach to a bridge might come into this category (if it is used to reach the bridge), and an ancillary building such as a tollhouse might also come within the ‘curtilage’ of a bridge.
On the other hand, mere proximity is definitely not enough in itself to put land within the curtilage of a nearby building; there must be an essential functional connection bringing the land within the definition in Sinclair Lockhart’s Trustees.
However, an actual answer to the question posed by my anonymous correspondent would dpend om the precise facts of that particular case.
Hello, I purchased a new build property which was sold with a shared boundary and around 5 feet in front of this boundary the house builder erected a fence for privacy. I was advised that I owned the land between this inner fence and the post and rail and that I could remove it. I had a planning enforcement office visit as I wanted to check this was the case and he advised yes you can remove the inner fence as the curtilage boundary is the post and rail, but the trees/hedging in this ‘strip’ must remain.
ReplyDeleteThis was all clear, the planting has died and I will be replacing it. The issue I now have is the landowner is kicking up a fuss because I have taken down the inner fence and moved it back to open the garden up (all still on the plot I legally own), as such has complained to the house builder who has issued letters asking for fences/screens to land not in the curtilage to be replaced and the planting to be replaced (which I will be doing) to maintain the planting buffer (a condition of planning), where the planting is on my legally owned plot as specified upon seed transfer during sale.
Do I have to put the inner fence back up or not is the question and I keep getting differing answers and no response from planning since the initial advice from the planning enforcement officer in May 2016.
Should I seek legal advice on this or is it all a storm in a teacup?
I’d appreciate any advice on this as it is beginning to wear me down to the extent of wanting to move less than 2 years after moving in.
The answer to Duncan McGregor’s query depends on the precise terms of the planning permission that authorised the development. Was the ‘extra’ land included within the red line or not? Were any conditions imposed on the planning permission for the development which refer to the ‘buffer’ area, or not?
ReplyDeleteIf the area in question fell outside the red line on the approved site plan, then it would appear that there may have been a material change of use which would require planning permission.
Professional advice may be required if the position is unclear, or if advice is required as to the interpretation and practical application of any relevant condition relating to the area in question (including any condition that referred to the erection, removal or maintenance of any fences).
Thanks Martin, the buffer is within the red line on the conveyancing plan and also within the red line marking my plot with land registry. The conditions say’s
ReplyDelete‘and maintain repair and rebuild as necessary any fences constructed by the transferor to divide or screen the property from land which does not form part of the curtilage of any neighbouring dwelling house’
I guess the question is the post and rail the curtilage mark or the inner fence, if the former then do I have an issue?
I have requested clarity from the house builder again and planning, even though both said I could remove the inner fence previously!
Many thanks for the response by the way.
The only further comment that I would make is that the plan that counts is the approved site plan that accompanied the planning application for the development, and which now forms part of (or must be read with) the planning permission. The conveyancing / Land Registry plans may coincide with the site plan (but they may not; hence the need to check). As I observed in my previous comment, the planning permission really does need to be checked, both with regard to the approved site plan and also in order to see what conditions were attached to that permission. (Again, it is the conditions in the planning permission that are relevant in determining the position for planning purposes. The covenants in the title deeds may not necessarily coincide with the conditions attached to the planning permission.) The planning permission should be accessible online on the Council's website.
ReplyDeleteIt seems to me that such definitions are founded upon a judge's discretion. Consider a property bought at auction including a reasonably sized detached house being so close to a road as to have no front garden. Included in the sale are brick and stone built stables and garage, a stone barn large enough to be converted into s dwelling, and grounds approximately 3.5 acres bounded by hedges. The property was specifically purchased for the owners children to enjoy for horses and other outdoor activities. 40 years later the same owners of the entire property installed a solar array about 150 metres away from the main house and concealed from the rest of the village behind a thick hedge.
ReplyDeleteI propose that as the entire property was sold and purchased as a whole, that the paddock remains within the curtilage of the house and therefore within the current right of development. Views will be most welcome.
I can’t agree with Alison Wunderland’s comment. Whilst there is a clear case for a proper legislative definition of ‘curtilage’, the judicial authorities on the subject are pretty clear. There is nothing quirky or arbitrary about them (with the possible exception of Calderdale).
ReplyDeleteIn the scenario envisaged by Alison, I doubt whether the whole of a 3.5 acre site could ever qualify as ‘curtilage’. A paddock or other ground not forming part of the formal gardens (and/or vegetable plot) near the house is unlikely to be seen as forming part of the curtilage. Cases like Collins and McAlpine spring to mind as practical examples.
For a full explanation, see Part 2.2 of Chapter 2 in my recent book, The Essential Guide to the Use of Land and Buildings under the Planning Acts (on pages 21 to 32).
Thank you, Martin, useful, but in the planning act on permitted development not requiring planning permission and with regard to solar PV and other alternative energy projects, 'grounds of a house' are also mentioned as well as curtilage. This brings up a debatable argument as to size of grounds, for example Burleigh House near Stamford may have grounds of several 100 acres, so where does the definition of 'grounds' compare with that of 'curtilage'? Would it be fair to say that if a house is purchased to include an attached parcel of land as one complete lot that this would be a 'house and grounds'? The other problem is that the village envelope runs between the paddock and the house and outbuildings, this also places the paddock outside the conservation area, the solar PV could not be sited within the village envelope without being a visual impairment to the village and neighbours so siting them in the paddock is the best option. Can I get your book on Amazon?
ReplyDeleteI don’t think I can usefully add anything to what I said in response to Alison Wunderland’s initial query.
ReplyDeleteI confirm that both of my books, including the recent one, are available from Amazon, although the poor old author doesn’t get much money from sales through that outlet, and I would much prefer purchasers to buy the book from an orthodox book shop, or direct from the publishers (or, even better, via my blog!)
Thank you for your blog and the interesting comments and replies - reading through has helped to clarify my question , but I am still unsure as to the answer I need:
ReplyDeleteIn a dispute about the extent of the planning unit for a detached house set in several acres of grounds - is the question of the planning unit legally separate to the fact a material change of use (of the land, agricultural to domestic) has occured?
The LA say a CLEUD is the only way to enable them to recognise the larger planning unit. Is the planning unit based solely on the current situation (ie currently no functional or physical separation from the unit of occupation, all the land was purchased together originally and the house built in 1920s) , or does it need to be proved >10 yrs, as for material change of use from agricultural to residential C3?
I am aware that even if the planning unit disagreement could be solved without applying for a CLEUD ,the LA could then choose to enforce against the material change of use and we would then have to apply for a CLEUD anyway).
Would be v interested in your reply.
As I have been at pains to point out, the concept of “curtilage” is quite separate and distinct from the identity of the planning unit (although on a small urban plot the two may well coincide). A change of use can only be identified by reference to the planning unit as a whole. Identifying the extent of the planning unit is therefore essential in order to determine whether a material change of use may have taken place.
ReplyDeleteWhere there is doubt or a dispute about the extent of a planning unit, an application for a Lawful Development Certificate may be the best way to resolve it.
These issues are explained in detail in my second book, The Essential Guide to the Use of Land and Buildings under the Planning Acts. Part 2.1 of Chapter 2 explains “the planning unit” in detail, and Chapter 20 contains a comprehensive explanation of Lawful Development Certificates and the procedures involved in submitting and processing an LDC application. (Appeals against the refusal of an LDC are then explained in detail in Chapter 21.)
Thank you so much for your clear reply - very much appreciated and we will go down the CLEUD route, as the LA have suggested.
ReplyDeletePS due to your patient repetition in this blog, I feel confident that I do have an understanding of the difference between curtilage and planning unit - so, thank you - I thought you should know that your pains are appreciated! (In our situation there is no PD involved so the area that may or may not be curtilage is not being questioned - we just want to be free to continue using our whole garden as.. garden. )
Hi We are quite confused as to the meaning of curtilage even after searching the internet Our problem is We applied for planning to move our 6ft garden fence up to the boundary marked on our deeds This would have enclosed 5ft of land that is currently situated on the other side of the fence (that locals use as a dog toilet) next to a road that leads into a small Close behind our property. Planning was refused on the grounds that a 6ft fence would obstruct the view of drivers coming out of the close. We have been informed that we would not need planning permission to errect a 3ft fence next to the road as long as the land comes under the curtilage of our house Does this land come under the curtilage of our property Our deeds show the boundary of our property is right up to the kerb but we are still unsure about the curtilage
ReplyDeleteThe actual identification of the precise extent of the domestic curtilage of a house is always a question of fact. That having been said, the curtilage of any building can very easily be extended (provided that this extension falls wholly within the existing planning unit). The essential point is that the area in question must serve the property in some useful and necessary way. As things stand, an area outside the existing garden fence might not be seen as part of the domestic curtilage, in view of the fact that (as I understand it) this area does not form part of one enclosure around the house, by reason of the fact that it lies outside the present garden fence.
ReplyDeleteI am not confident that one could necessarily extend the curtilage by removing the existing garden fence and then immediately erect a new garden fence as permitted development under Part 2, Class A in the Second Schedule to the General Permitted Development Order (which, because it abuts the highway, must be no more than 1 metre in height). I think one would need to review the judgment in Sumption v Greenwich LBC [2007] EWHC 2776 (Admin) in order to reach a view on this.
I have owned land with an agricultural designation for just over 10 years and have continuously and demonstrably used this land as an extension to my garden for this time and now wish to invoke the 10-year rule as I wish to place a Yurt on the land for personal use and rental purposes (a great deal easier if it is designated as garden rather than agricultural land!). My property is Grade 2 listed. Are there any impediments to me invoking this rule?
ReplyDeleteThe answer to yesterday's enquiry from my anonymous correspondent is - “Yes, several!”
ReplyDeleteThis is therefore a matter on which we could only advise on the basis of full professional instructions.
Another convert to your excellent website.
ReplyDeleteI also have a question which has perplexed me and others in my battle with the LA.
I own a Grade II Listed cottage built circa 1720. At the front is an unadopted track (think bridle way) and beyond this is a front garden about 90 feet in length and about 50 feet at its widest.
I plan to put in a wooden summer house about 14ft by 10ft which would be 50% surrounded by bushes and barely visible from any of the houses. It would be hidden from the main road due to the small matter of a 12 foot high hedge along the entire length of the garden. It would be a good 50 feet or so from the main road (not the bridle way).
The LA are insisting on a full planning application due to the proposed summer house being within the curtilage of the house (which was listed I believe in the 1950's or 1960's).
What would your thoughts be? I note the regulations changed in 2008, not sure if they have changed again since.
Thank you in advance
In answer to my anonymous correspondent of 14 November, the law gets you either way! If the land on which the summer house is erected is within the curtilage, it is disqualified from permitted development. Paragraph E.1 provides that development is not permitted by Class E if –
ReplyDelete(c) any part of the building or strcuture would be situated on land forward of a wall forming the principal elevation of the original dwellinghouse;
or
(g) the building, or structure would be situated within the curtilage of a listed Building.
If the summer house is not within the curtilage, then it does not come within Class E of Part 1 anyway, which permits development only within the curtilage of a dwellinghouse.
Thus the summerhouse would require planning permission, for which a formal planning application must be made.
Afternoon
ReplyDeleteOur local authority currently has a policy for infill housing within its adopted local plan. In determining whether a site is infil housing or development in the countryside it uses the Residential Curtilage as the benchmark, i.e. anything outside the residential curtilage of a site is deemed development in the countryside. Having read this post however it seems to me that its actually the planning unit that they should be using not the "residential curtilage" would that be reasonable or correct?
In answer to Darren (16 November), it is for a local planning authority to devise their own planning policies (subject to the statutory procedure leading to their formal adoption). If the LPA in question has chosen to define ‘infill’ development by reference to domestic curtilages, as distinct from residential planning units, then this is largely a matter for them.
ReplyDeleteI can see the argument that the planning unit ought to be considered, and it is something that might be argued appeal, but I cannot give Darren any encouragement as regards the outcome of any such appeal, in view of the terms of the adopted local plan.
Good evening, we recently purchased a semi detached house with a nice side plot. We wanted to extend to make a nice family home but since we knocked the garage and surround brick walls down to put a fence in we have had nothing but problems. We erected a 6foot fence round the boundary line to use the full extent of our garden for the children and dogs. We then received a letter of complaint from the council saying they had, had a complaint and we must either put in for planning to keep it at 6foot, cut it down to a meter as it’s adjacent to a high way or move it back to here the wall was and have no issues. We chose to cut it down and keep it where it is, we had been given a date to have this done by which we kept to but they actually hadn’t bothered to come check if we had Done it. A month has gone by now and we have since had all the land flattened and top soiled and then last week laid 200 turfs. Monday I received another email saying that although I had cut the fence down that now Is not acceptable and the land is actually residential curtilage and I must remove the fence and put it back to where the old brick wall was (around 3metres further back into the garden).
ReplyDeleteThe planning officer stated that the precious officer has got it wrong and I have 14 days to remove it or they will send people round to remove it at my expense.
She explained that all though I own the land I cannot use it and that we must just keep it but not Use it.
Please help.
A gate, fence, wall or other means of enclosure can be erected anywhere as permitted development under Part 2 (Class A) of the Second Schedule to the General Permitted Development Order. This permitted development right is not confined to the domestic curtilage of a dwelling; in fact it need not be associated in any way with any building or any identified planning unit at all. (Nor, in contrast with the formation of an access to a highway, which is permitted by Class B in Part 2, does it have to be required in connection with any other permitted development.)
DeleteHowever, where the gate, fence, wall or means of enclosure is erected or constructed adjacent to a highway used by vehicular traffic, its height must not exceed 1 metre above ground level. In other cases, its height must not exceed 2 metres above ground level. (There is a prohibition on this type of development where it is either within the curtilage of a listed building or surrounds a listed building.)
The planning officer appears to have got in a muddle over this, and would appear to have assumed that the right to erect a wall, fence, etc. derives from Part 1, rather than Part 2 of the Second Schedule to the GPDO, whereas (as I have pointed out above) the Part 2 PD rights are entirely separate fand unrelated to those under Par 1.
Just a quick addendum to this reply: First, there are a couple of typos in the last line, the end of which should read: “the Part 2 PD rights are entirely separate from and unrelated to those under Part 1.”
DeleteSecondly, I stated that a gate, fence, wall or other means of enclosure can be erected anywhere as permitted development under Part 2 (Class A). This is correct, but it must nevertheless serve the function of enclosure (as it clearly does in the case referred to above.)
Dear Martin, We have a situation with a listed building we own in Scotland whereby a planning application has been submitted for a sizeable shed requiring electrical and plumbing for commercial use and a commercial 2500 above ground fuel tank to be erected across the road from our house. This will not be in keeping with the historic nature of the neighbourhood. We consider that the proposed development would affect the setting of our listed building which is a building of historic interest. The development of the shed and exterior bunding would also block an iconic view for visitors to the site as well as ourselves. Would the laws in England and Wales be relevant to a case such as this in Scotland? Thank you for your consideration to my question. I would prefer to remain Anonymous as we are challenging the Council on this building application.
ReplyDeleteAs my anonymous correspondent appreciates, Scottish planning law differs in various respects from English planning law, but I am not personally familiar with those differences. I am unable to say, therefore, whether or to what extent the principles established by the English legislation for the protection of various heritage assets may be relevant North of the border.
DeleteIn England, section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 provides that in considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority must 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.
I would not be at all surprised if there is an equivalent provision in the Scottish legislation, but my unfamiliarity with the way in which the Scottish planning legislation is organised prevented me from finding it during an admittedly brief and rather superficial search on the Legislation (UK) website.
Can a footpath not on the definitive map then be placed through the curtilage of a listed building
DeleteI’m sorry, but I simply don’t understand this question. Public footpaths either exist or they don’t. It makes no difference what type of property they cross. Public footpaths should appear on the definitive map, and if they don’t then the highway authority can be asked to correct the map (and various statutory procedures would then kick in).
DeleteA public footpath is a highway, and can only be created if the landowner has shown an intention to dedicate the path as a public right of way. However, such dedication can be presumed from long use without the path having been closed-off (even if only for one day of the year each year) or, alternatively, without notices being posted to indicate that the path is not dedicated as a public right of way, or by means of some other type of periodic challenge to negative the presumption of dedication.