Friday, 12 August 2011

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

7 comments:

Paul Kellett said...

If curtilage and property boundary (lets call the latter the planning unit) are not co-extensive then how does one decide what is the curtilage for PD purposes as a Certificate of Lawfulness application can not determine 'curtilage' or curtilage use as neither of these constitute development within the meaning OF The Town and Country Planning Act 1990.

The GPDO therefore is wholly misleading and inept as any reference it makes to 'curtilage' has no meaning or definition. How can anyone therefore determine what is PD and what is not

Any thoughts as I am presently trying to advise 2 clients on this subject.

Martin H Goodall LARTPI said...

In answer to Paul's query, it is "a matter of fact and degree" in each case. The only guidance is the various well-known judgments on the issue, which are not entirely consistent or reconcilable one with another.

I entirely agree that reference to the "curtilage" in the GPDO (and elsewhere in the planning legislation)is frankly anomalous, but we are stuck with it until or unless the legislation is changed.

It is a source of endless difficulties for householders and their advisers, and the failure of planning officers to understand the legal ramifications only compounds these difficulties.

Paul Kellett said...

Martin

Unfortunately "a matter of fact and degree" is at the discretion of the planning officer, need I say more?

Martin H Goodall LARTPI said...

Not entirely, Paul. This is still a matter of objective judgment - it is not a matter of discretion or personal preference.

And if the planners (including elected members) get it wrong, there is a right of appeal. Inspectors are much better at sorting these things out than planning officers and councillors are.

You can also look for help from people like me. In fact, where I have been brought in early enough, I have been able to sort out some problems simply by writing a robust letter to the LPA, thus saving the clients the expense of an appeal against a wrong decision.

Robert Seaton said...

The issue of "curtilage" in the debate over what land should be subject to statutory (right-to-roam) access rights in Scotland. Ultimately the Land Reform (Scotland) Act 2003 excluded access rights from the curtilage of non-domestic buildings, but in relation to houses (and also caravans and tents) excluded access from "sufficient adjacent land to enable persons living there to have reasonable measures of privacy in that house or place and to ensure that their enjoyment of that house or place is not unreasonably disturbed". There have been several "country house" cases considering application of access rights to extensive grounds, e.g. Perth & Kinross v Gloag and Highland v Snowie. Local authority officers often refer to the area around a house excluded from access rights as "curtilage" by way of shorthand. I wonder if it is, or if this is another unit, in addition to the curtilage, the planning unit, and the property.

Martin Pinnington said...

Dear Martin,

Firstly, thank you for your superb blog and guide to permitted changes of use, it has helped me no end during my time training in local government.

I wonder if you could provide some guidance with the (seemingly) never ending debate over curtilage. I have been asked to advise on a matter whereby the owner of a residential property has cleared some vegetation from a severely sloped section of land within his legal boundary (but beyond the curtilage of his dwelling in my view) and erected some pretty substantial wooden steps leading from his legal boundary up to the edge of the curtilage (looking at the photographs I would say the slope is at a negative (downward) 45 - 55 degree angle and around 30 - 40 metres in length. The steps are around a metre wide).

My conclusions are that the vegetated land, whilst not curtilage, is within the same planning unit (the sloped land was within the red line of the original planning application for the residential dwelling, which was approved) and as such whilst the PD rights do not apply, the question is whether the erection of the steps could be deemed operational development. In my view, as a matter of fact and degree, they do satisfy the definition of building development (due to size, degree of permanence and physical annexure). Would this require planning permission in your view?

Thank you in advance,

Martin Pinnington.

Martin H Goodall LARTPI said...

I am afraid that pressure of time prevents my giving more than a very brief answer to Martin Pinnington's question.

Whether the erection of the wooden stairs amounts to development (or whether it is in practice de minimis) is inevitably ‘a question of fact and degree’, and a determination of this question must depend entirely on an objective judgement as to the extent, visual impact (and so on) of this construction.

If the conclusion were to be reached that this does amount to development, it would then be necessary for the council to consider whether it is ‘expedient’ to take enforcement action (see section 172 of the 1990 Act). In practice, the usual way forward would be to invite an application for retrospective planning permission, although former ministerial practice advice (which may or not have been carried forward to the current online Planning Practice Guidance) was not to insist on a retrospective application merely in order to ‘regularise’ something that is unexceptionable in planning terms.

While I am writing, I would remind readers of my latest blog post in relation to 'curtilage' - dealing with the High Court judgment in he case of Burford, which addressed again the question of the definition of 'curtilage'.