Monday, 19 December 2011
Curtilage confusion (2)
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).
I frustrated several readers of my last piece on this topic by stopping short of discussing the actual definition of the ‘curtilage’ of a dwellinghouse (or other building). So now at last we come to that definition and its significance in planning terms. As I mentioned before, there is no such thing in planning law as ‘use as residential curtilage’. This is not a use in planning terms; it is simply a physical description of an area of land which is closely associated with a house (or other building). The use of a property for residential purposes (within Use Class C3) relates to the whole of the planning unit comprising the house and its grounds. The ‘curtilage’, as I mentioned before, may very well be a smaller area, the use of which in planning terms does not differ materially from the use of the planning unit as a whole.
The dictionary definition is helpful to a certain extent [“a small court, yard, garth 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” - OED], but does not give the whole answer. I usually take as my starting point a quotation from 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.”
A later case which has often been cited is Dyer v. Dorset County Council [1989 1 QB 346, in which the Court of Appeal adopted the dictionary definition mentioned above, but this decision of the court of Appeal can no longer be relied upon. For one thing, the case was not being decided in the context of planning law, but was concerned with the ‘right to buy’ under housing legislation. More importantly, the use of the word “small” in the dictionary definition is misleading, and was held to be irrelevant by the Court of Appeal in Skerritts of Nottingham Ltd v. SSETR  2 PLR 102;  JPL 1025, who decided that Dyer had gone too far in adopting the dictionary definition word for word.
Beyond this, there is not much further judicial help in reaching a definition. It is, to use a favourite phrase of planning lawyers, “a matter of fact and degree” in each individual case, and this was the principal point established by Skerritts of Nottingham. You have to look at all the circumstances in the particular case in question.
One practical point which can clearly be derived both from decided cases in the courts and from inspectors’ appeal decisions is that if something like a tennis court or a swimming pool is separated from the house by an area of rough grass or is situated in a field or paddock which is clearly not part of the formal garden closer to the house, then it is very unlikely to be seen as falling within the curtilage of the house. (For examples of this, see Collins v. SSE  PLR 30 and McAlpine v. SSE  EGCS 189. In Collins the area of rough grass was held not to be part of the curtilage because it did not serve the dwellinghouse in some necessary or useful manner, echoing the words used in Sinclair-Lockhart’s Trustees).
The significance of ‘curtilage’ in planning terms arises from the use of the word in both primary and subordinate legislation. We have already seen that the use of land or outbuildings within the curtilage of a dwellinghouse, which is mentioned in s.55(2)(d), is no longer of any relevance, as the inclusion of dwellinghouses in Use Class C3 in the Use Classes Order brings the whole planning unit (not just the curtilage) within the terms of s.55(2)(f). However, ‘curtilage’ is still important in other contexts. I do not propose to explore every use of the word in the planning legislation, but will just mention the two most important references to the term. The first is in Part 1 of the Second Schedule to the General Permitted Development Order, and the second is in section 1(5)(b) of the Planning (Listed Buildings and Conservation Areas) Act 1990.
Permitted development within Part 1 in the GPDO (and in particular under Class E) can only be carried out within the ‘curtilage’ of a dwellinghouse, and not within any part of the planning unit which lies outside the curtilage. As regards the Listed Buildings Act, the inclusion of a building in the statutory list of buildings of architectural or historic interest embraces not only the building itself, but also any object or structure within the curtilage of the building which, although not fixed to the building, forms part of the land [within the curtilage] and has done so since before July 1, 1948. Thus in these two cases, it is important to define the curtilage in order to determine the effect of these statutory provisions to particular parts of the property.
© MARTIN H GOODALL