Curtilage confusion – some further thoughts

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).

As some readers have discovered, the ‘curtilage’ of a dwelling (or of any other building) is not necessarily co-extensive with the property as a whole. If one is dealing with a suburban house on a comparatively small plot, then the curtilage may in fact cover the whole property, and I suspect it is this which has led to the widespread habit (but not among lawyers) of using the word ‘curtilage’ in this rather loose and, in fact, inaccurate way.

However, where a house stands in larger grounds, as many do in the country, the curtilage almost certainly won’t include the whole of the grounds surrounding the house. It is in these cases where the difficulty of defining what is or is not within the curtilage of the house arises. As I have said before, this does not matter so far as primary and ancillary uses of the property are concerned. The whole of the land lying within one and the same planning unit as the house can lawfully be used for all domestic purposes, whether or not the use in question takes place inside or outside the actual ‘curtilage’ as such. (This is subject to the proviso that the area in question has not been added to the planning unit, without planning permission, within the past ten years.) Where the identification of the curtilage becomes important is in deciding whether or not the various operational development which is authorised by Part 1 of Second Schedule to the General Permitted Development Order can be carried out as permitted development – it is permitted only if it is within the ‘curtilage’ of the house. Another case where the precise extent of the curtilage is important is in relation to Listed Buildings; the listing extends to the whole of the ‘curtilage’, but not to any buildings or structures which lie outside the curtilage.

Regrettably, there is no clear definition of ‘curtilage’ (and the usually quoted dictionary definition is of only limited use). The best one can do is to refer to the various judicial authorities which have discussed the concept over the years. Arguably, not only the word but also the idea of a ‘curtilage’ is an anachronism, and we ought perhaps to adopt a clearer and more modern definition of the land which is beneficially used with a building.

It seems to me that the idea of the ‘planning unit’ is a much more useful concept and it is much easier to identify in a particular case, although even here we are dependent on ‘judge-made’ law for the definition (proposed by Bridge J, as he then was, in the case of Burdle.) Unfortunately, the word ‘curtilage’ is written into our planning legislation (both in the 1990 Planning Acts and in the GPDO), and so it will take an Act of Parliament to consign the word to the dustbin of history and to refer to the planning unit instead (with a statutory definition based on Burdle). I frankly see no prospect of genuine planning law reform of this nature ever being brought about, despite the stated intention of successive governments to ‘reform’ the planning system.

There appears to be an assumption that for an area of land to be defined as ‘curtilage’ or to be included within that definition, it must be contiguous with the building (usually a house) to which it relates. However, so far as I can recall, none of the judicial authorities on the definition of ‘curtilage’ actually says this, although it would need to be reasonably close to the dwelling and would probably need to be directly connected to it (e.g. by a path). One correspondent raised this point with me in relation to cottage gardens arranged ‘in tandem’. I don’t see why cottage gardens arranged in this way should not be necessarily be regarded as being within the curtilage of the relevant cottage, and it might be worth arguing by means of an application for a Lawful Development Certificate (seeking confirmation that, say, the erection of a garden shed, would be permitted development under Part 1 of the Second Schedule to the GPDO) and then appealing any refusal of that application to the Planning Inspectorate.

In practice, I suspect that the most practical way of tackling the problem is simply to treat the gardens as (part of) the ‘curtilage’ of the cottage to which each belongs and to assume that the usual PD rights apply. In many cases, no-one will complain about a garden shed or the like, and the local planning authority may never get to hear about it. I have found from experience that in many cases it makes sense just to get on with minor developments of this sort, rather than getting entangled with the planners in advance over whether or not they require planning permission.

My correspondent also raised with me the question of parking a car on this area. However, as I pointed out above, when considering this or any other use of the land ancillary to the occupation of the dwelling, it does not matter whether the area in question is within the ‘curtilage’ of the dwelling or not, provided that it is within the same planning unit. This was the point of my original article on this topic. Such an ancillary use is lawful, and does not in fact constitute development at all (but this is subject to the proviso which I mentioned earlier, that the area in question has not been added to the planning unit, without planning permission, within the past ten years).

© MARTIN H GOODALL