Thursday, 18 August 2011

Curtilage problems - a practical example

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 I have mentioned before, if you want to contact me, you need to send an email. I have no means of responding to someone who simply leaves a comment on the website, especially if they do not give any clue as to their identity.

I am nevertheless responding by means of this post to a recent note received from a correspondent who is inevitably identified simply as ‘Anonymous’ (because they did not leave any name or other details), as an example of the sort of problems people frequently encounter in trying to work out what is included in their domestic curtilage, and what lies beyond it, and what can and cannot be lawfully done both inside and outside the curtilage.

My correspondent wrote : “We are very interested in your comments regarding confusion on the 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 9½ 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 continuity 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?”

My comments are, of course, subject to the usual ‘health warning’ published in the Introduction to this blog – “Every possible care has been taken in the preparation of this material but no responsibility can be accepted by me, by Keystone Law or by the site owner for loss occasioned to any person acting or refraining from action in reliance on any material appearing in any part of this blog.”

With that proviso in mind, the first point that occurs to me is to ask what was the planning unit in respect of which planning permission was originally given? In principle, it should have been the whole of the land within the red line (but not the blue line, if any) on the application drawings. [Notice that I have been careful not to refer to ‘curtilage’ in this context.]

Assuming that the original planning unit comprised the barn and a comparatively small area around it, it appears that the planning unit has subsequently been significantly expanded. This would have involved a material change of use of the land in question, which in the absence of express planning permission was a breach of planning control, but if it took place more than 10 years ago (as seems to be the case) and provide also that the use has been continuous and unbroken ever since, then this change of use has now become immune from enforcement and therefore lawful.

One still has to be careful in identifying the precise extent of the planning unit. The well-known rule in Burdle is subject to the proviso that no part of the unit of occupation is physically and functionally separate from the remainder. So in the present case we have to consider whether some part or parts of the 2 acres might be physically and functionally separate, so as not to be in domestic or residential use as such. It does seem, however, that most (and perhaps all) of the 2 acres is now within one and the same planning unit as the house (the former barn), and that the change of use of the land which brought that about is now lawful.

(There may have been one or more conditions attached to the planning permission for the barn conversion which might have been relevant in this context, but if any such condition has been continuously breached for more than 10 years, then that breach of condition would now also have become lawful.)

It follows from this that the use of the whole of the current (enlarged) planning unit for all domestic purposes, whether they be primary or ancillary uses or merely incidental, would appear to be lawful.

We then come to the operational development which has been carried out – the creation of a tennis court and the construction of a drive. The first thing to say is that operational development is subject to the 4-year rule, so if these works were substantially completed more than four years ago, they are now immune from enforcement and therefore lawful.

But let us assume that these works were more recent than that. Let’s look first at the drive. It is worth remembering that it is only those types of development which fall within Classes E, F and H in Part 1 of the Second Schedule to the General Permitted Development Order which are restricted to the ‘curtilage’ of a dwellinghouse. The erection of a gate, fence, wall or other means of enclosure and the formation, laying out and construction of a means of access to a highway (e.g. a private drive) fall within Part 2 and are not confined to the ‘curtilage’ of a dwellinghouse; in fact they need not be associated with any building at all.

The permitted development allowed by Class B of Part 2 is slightly tricky – it doesn’t apply to any and every means of access to a highway. First of all, the highway must not be a classified road, and that does not just mean ‘A’ and ‘B’ class roads. It is a little known fact that there are also ‘C’ class roads (formerly referred to as ‘Class III’ roads) which also count as classified roads for this purpose. They are not indicated on road signs or shown on Ordnance Survey maps, but there a quite a few minor roads which are in fact ‘C’ Class roads. The problem is that it is very difficult to identify them, unless you send a Local Land Charges Search and accompanying form of inquiries to the Local Authority. (Your solicitor would have done so when you bought your house, so that may be the best place to look.)

There is also case law to show that this permitted development right only applies to a direct means of access to a highway. If the access passes through other land, or joins another driveway, so that it gives only indirect access to the highway, then it is not permitted development within this class.

The other limitation, which people often seem to overlook, is that the formation of a new access to a highway is only permitted development if it is “required in connection with development permitted by any Class in this Schedule (other than Class A of this Part)”. So you can only lay a new driveway as permitted development if it is required (which denotes some measure of need) in connection with some other class of permitted development, and that permitted development must be something other than (or in addition to) the erection of any gate, fence, wall or other means of enclosure. This does have the effect of reducing the scope of this particular class of permitted development quite significantly.

Turning to the tennis court, this is the one item where we need to determine whether it lies inside or outside the ‘curtilage’ of the house. My correspondent referred to “most of the other 2 acres” being used “as garden, though some was rather unkempt, rough meadow in continuity with mown lawn in an enclosed overall plot.” I am not going to try to guess from this description exactly where the boundary of the curtilage should be drawn, but it is unlikely to embrace any area which lies outside the formal cultivated garden close to the house. Any rough grass, paddock or other area of informal recreation is likely to be seen as falling outside the curtilage. So if the tennis court was built in that area, it was not permitted development and would require express planning permission.

So, does my correspondent have any defence? Well, as I indicated above, timing is the first factor to look at. It seems that the addition of about 2 acres of land to the planning unit has become lawful under the 10-year rule. If the tennis court was substantially completed more than four years ago, then that is lawful under the 4-year rule. The same would apply to the driveway.

If the 4-year rule cannot be relied upon in respect of this operational development, then the lawfulness of the driveway as permitted development would depend on the factors mentioned above, and the lawfulness of the tennis court as permitted development would depend on its precise location in relation to the ‘curtilage’ of the house.

I have used this example to illustrate the way in which problems like this one should be approached in practice. I am afraid that I won’t be able to answer other queries in the same way. If you were to ask Gypsy Rose Lee to read your palm, she would reply: “If you wants yer fortune told, dearie, you ’as to cross me palm wiv silver.” I operate on the same principle, but we always agree a fee budget with our clients before we start work, so you should have a reasonable idea how much my services are going to cost you before you commit yourself to instructing me. (It’s worth every penny, of course.)



  1. In development for an estate of 70 houses, how would you define the planning unit for each individual house? I assume that the original planning unit would have been the whole development.

    I have been told that the land at the side of my house isn't part of my curtilage even though it was part of the plot when I bought the house from the developer. There is a wall separating this area from my back garden but it is a continuation of my front garden.

  2. Where planning permission is given for a housing development or for any other development involving the creation of a number of separate units of occupation, each of these will be a separate planning unit. The application site may have comprised a single pre-existing planning unit (or may have embraced more than one pre-existing planning unit), but new planning units will be created, in accordance with the planning permission, as the development proceeds. Thus each house, together with the whole of the plot on which it is erected (and which is conveyed with it by the builder to the purchaser), constitutes a separate planning unit.

    On a single plot in a housing development of the type you describe I would be surprised if the land at the side of your house is not part of your curtilage, especially as it is a continuation of your front garden. I would not expect the position to be influenced by the fact that there is a wall separating this area from your back garden.

    I have come across this problem before, particularly on corner plots, where planners try to argue that the land at the side of the house is not part of the curtilage or is ‘amenity land’. One planning officer even tried to argue that it was ‘public open space’!

    The key to this situation often proves to be an ‘open plan’ condition, which requires such areas to be kept open. These tend to be quite strictly enforced, and planning inspectors seem reluctant to go behind such conditions. However, in the absence of such a condition, planning authorities may have little control over such areas within individual properties.

  3. I must add that operational development which results in a change of use of the land is subject to a 10 year period of immunity and not 4. For example, an outbuilding used for residential purposes but erected outside the residential curtilage would not be lawful even if it had been in situ for more than 4 years. The period of immunity in such cases is 10 years, the same could be said for the tennis courts in this case.

  4. I dealt with this issue in an earlier post on this blog [ “4-year rule or 10-year rule?” published on Tuesday, 20 April 2010 ]. I would disagree with the previous comment in the terms in which it has been expressed. The 10-year rule would only apply to the erection of the building if that operational development also involved a change of use of the planning unit on which it is located, or was associated with a change of use (as per Murfitt). If the building or other operational development is outside the residential curtilage but is nevertheless within the same planning unit as the house, its erection as an ancillary building would not constitute a change of use of the land, and the 4-year rule would apply to that operational development.

    If there has been a separate change of use of the land on which the building is erected unconnected with the erection of the building, and the building itself is not associated with that change of use, then whilst that change of use will be subject to the 10-year rule (assuming that the change of use did not consist of a change to use as a single private dwellinghouse - where the 4-year rule applies in any event), the erection of the building will still be subject to the 4-year rule (provided that the erection of the building does not in itself involve a further change of use of the planning unit on which it was erected).

    Where 'Anonymous' may have a point is that if the planning unit has been extended to take extra land into the grounds of the house and this change of use has not become immune from enforcement and therefore lawful under the 10-year rule, the erection of a building on that part of the land for ancillary domestic purposes will be subject to the same 10-year rule, in accordance with the rule in Murfitt. However, if 6 years or more have already elapsed since the change of use, then it will be the 4-year rule which will in practice apply to the erection of the building.

    I do wish we could just have a single limitation period (say 6 years) in order to avoid these difficulties and complications.

  5. Dear Martin

    Thank you for your blogs.

    With regard to permitted development allowed by Class B of Part 2, I am trying to establish if this can be used to provide access for a building permitted by Class Q? I note the highway must be unclassified and must not pass through other land.

  6. The answer to Richard is “Possibly, yes”. For the full explanation, see my book, A Practical Guide to Permitted Changes of Use – paragraph 5.2.9 in Chapter 5.

  7. Martin, with reference to permitted development rights under Class E - I have acquired a piece of garden land that previously belonged to my neighbour. There has been no change in use of the land from residential but the ownership has changed. The land is accessed directly from my garden and now forms part of the planning unit. Can I rely on Class E permitted development rights? The garden is part of the planning unit and has a direct purpose to the house. Class E does not state it needs to be "original" curtilage.

  8. In answer to my anonymous correspondent of 23 September, this situation would appear to be very similar to the Sumption case (see “Curtilage Confusion (3)” posted here on Monday 12 January 2012). Land already lawfully used for domestic purposes which is added to the planning unit may not automatically become part of the curtilage, but if its use is sufficiently closely associated with the house to meet the Sinclair Lockhart test, then it will also be part of the curtilage. No change of use is involved, and so neither the 4-year rule or the 10-year rule applies. This was the position in Sumption, and it may well be the case here. If this is indeed the case, permitted development rights should be available on this part of the curtilage (always assuming that the development also meets the other criteria in Class E).