Tuesday, 6 December 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).

The one topic which has received more page views than any other on this blog is the short article entitled “Curtilage Confusion” published in this blog on 11 January 2011. It has now been read more than 2,500 times. Clearly this issue is proving to be a serious problem for a large number of people.

As I have explained in several posts in the blog, the ‘curtilage’ of a house (or other building) is not necessarily co-extensive with the boundaries of the property on which the house stands. Where the house is located on a modest plot in an urban or suburban area, the domestic curtilage may well encompass the whole of the property, and I strongly suspect that this is what leads people to refer loosely (and inaccurately) to the whole of the land around their house as the ‘curtilage’. However, on larger plots in rural and semi-rural areas, the curtilage often proves to cover rather less than the whole of the property. It is in these circumstances that the inaccurate use of the word ‘curtilage’ begins to cause problems.

If we are dealing with a house occupied with a substantial area of surrounding land, there may be a need to establish - (a) whether the domestic use of certain parts of the property is lawful and (b) whether certain outbuildings, a swimming pool or ornamental ponds, tennis courts, etc. are Permitted Development within Part 1 of the General Permitted Development Order.

It is necessary to make a clear distinction between issues relating to the use of land and issues relating to operational development (i.e. building, engineering or other operations) involved in creating a building or other structure or facility, including (for example) a swimming pool or a tennis court. The rules relating to the lawfulness of the erection or creation of the building, structure or other facility differ in certain important respects from the rules relating to the lawfulness of their use, or (to be more precise) the lawfulness of the use of the land on which they are located.

It may come as a considerable surprise to some planning officers, but the lawfulness of the use for domestic purposes of various parts of the property surrounding a house is not dependent on the area or areas in question being within the ‘curtilage’ of the house.

The origins of the confusion which has clearly arisen can be traced back to what is now Section 55(2)(d) of the Town & Country Planning Act 1990, which provides that “the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such” is not to be taken for the purposes of this Act to involve development of the land. Taken at face value, it might seem that this does confirm that, in order to be lawful, uses associated with a single private dwelling must be within the ‘curtilage’ and must be purely ‘incidental’ to the use of the house as a dwelling, but this is not so.

When the predecessor of s.55(2)(d) first went on the statute book (in 1947), single private dwellings were what lawyers call a sui generis use, i.e. a use of its own kind. However, that changed in 1987, when a new version of the Use Classes Order included ‘dwellinghouses’ for the first time. Since then, use as a dwellinghouse, whether or not as a sole or main residence, has come within Use Class C3.

It seems to have escaped the notice of quite a few planning professionals that the inclusion of dwellings in the Use Classes Order had an important knock-on effect. It brought dwellings within the provisions of what is now Section 55(2)(f) of the 1990 Act, which provides that “in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section [i.e. the Use Classes Order], the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or other land, for any other purpose of the same class” is not to be taken for the purposes of this Act to involve development of the land. So in the case of a dwelling, which by definition comes within Use Class C3, it is lawful by virtue of s.55(2)(f) to use any part of the buildings or other land for any other purpose falling within Use Class C3, whether that purpose is primary, ancillary or incidental to the use of the house as a dwelling. This has effectively made s.55(2)(d) redundant, although it remains on the statute book because no-one has spotted the fact that it is of no further relevance.

There is just one point that needs to be clarified. What exactly counts as “any part of the buildings or other land” ? You won’t find the answer to this question anywhere in the planning legislation, but the courts have long since developed the concept of the ‘planning unit’, and the way in which the planning unit is to be defined is clearly set out in the judgment of Bridge J (as he then was) in Burdle v. SSE [1972] 3 All ER 240; 24 P&CR 174. The basic rule is that the unit of occupation is the appropriate planning unit, unless and until some smaller unit can be recognised as the site of activities which amount in substance to a separate use both physically and functionally.

This is a point which should be borne in mind when we are considering a house which is occupied with a large area of surrounding land. In these circumstances, it cannot automatically be assumed that the whole of the land falls within one and the same planning unit as the house. Some of the land could, for instance, be in agricultural use, or might be used for some other purpose. Thus the property might possibly include another planning unit which, in terms of the activities carried on there, is physically and functionally separate from the remainder of the property.

So how is a planning unit comprising a house and its grounds created, and how can it lawfully be enlarged to include extra land? If planning permission is sought for the erection of a new house, the red line on the site plan should be drawn round all the land which is intended to be used and occupied with the house. The land within the red line will be the planning unit, and the grant of planning permission for the erection of the house will necessarily authorise the use of all the land within the planning unit for the same purpose. Section 75 of the 1990 Act confirms this, and the effect of s.55(2)(f), as we have seen, is to allow the use of every part of the planning unit for any purpose falling within Use Class C3. If the planning permission is for a change of use (for example a barn conversion), the same considerations apply to the land shown in the planning permission (i.e. edged red on the approved site plan) as being part of one and the same planning unit.

The application drawings should therefore include within the red line on the site plan all the land which is intended to form part of one and the same planning unit as the house. Note that the planning unit may well be larger than the more tightly defined domestic ‘curtilage’. However, there must be some reasonable limit as to how much land can properly be included in the planning unit when a planning application is made. Being greedy about the amount of land to be included in the planning unit might lead to a refusal of planning permission altogether if it is felt that involves a change of use of too large an area of land to use for residential purposes.

The subsequent incorporation within the property of land which was outside the originally defined planning unit represents a material change in the use of that land (in many cases from use for agriculture) to use for domestic or residential purposes, but please note is does not represent a change of use to ‘use as residential curtilage’, even if it is close enough to the house to come within the curtilage, because this is not a use in planning terms. It is an enlargement of the planning unit and a material change of use of that land to use for residential purposes (or, possibly ‘to a use or uses ancillary to a residential use of the planning unit in which it has been incorporated’). Such a change of use requires planning permission, which most local planning authorities will be very reluctant to grant in most cases. However, if such a change of use takes place without planning permission and this unauthorised use continues without interruption for 10 years, then it will become immune from enforcement and therefore lawful. But please note that this does not have the effect of making that land part of the domestic ‘curtilage’ as such.

Following the inclusion of dwellinghouses in the Use Classes Order in 1987, as Use Class C3, the definition of the curtilage is no longer relevant to the lawfulness of the use of any particular part or parts of the planning unit, because this is now governed by section 55(2)(f) rather than by section 55(2)(d), as explained above.

However, it is when we come to the consideration of Permitted Development within Part 1 of the Second Schedule to the General Permitted Development Order that the precise definition of the actual ‘curtilage’ of the house is of crucial importance, particularly in relation to Class E. The precise definition of the curtilage of a listed building is also important for the purposes of listed building control.

I will return in a future post to the question of how the precise extent of the curtilage can be determined.



Dr Anton Lang said...

Excellent, as ever.

One typo - 'is' should be 'this' para 13 "please note is does not"

PGH said...

Rather than seek to minimise the extent of the planning unit, many planning authorities dealing with barn conversions, or indeed any development in rural areas, insist that the whole of the route of the access between the building and the nearest public highway be included within the red line boundary of the application site - even when this might be an existing private drive already serving say a separate agricultural building. Personally I doubt the necessity to incorporate an access drive which is not public highway within an application site when no works constituting development are proposed to it. However, many authorities will not register applications unless this access route is within the red line. Maybe the realisation that they are conferring residential use rights onto a much larger area than originally intended may make them think again?

Anonymous said...

I am pleased to be relieved of the turmoil that Curtilage versus Planning Unit has been creating. However, can we hurry up with the Curtilage definition/determination please and life will be complete.

I am a student of the dark arts of Planning and my pet subject, today, is Unit v Curtilage.

My local LPA, North Somerset, think they are one in the same for rural dwellings, as per McAlpines definition.


Martin H Goodall LARTPI said...

I share PGH's doubts about the appropriateness of automatically including the access drive within the red line, but planning officers seem to think it is essential. I confess that I have never seen the reason for this and, as PGH points out, it leads to some anomalous situations.

Martin H Goodall LARTPI said...

In answer to Freddy, I hope to publish a post on the definition of 'curtilage' shortly.

JPM said...

Good advice - but how can people exercise their rights in accordance with s55 2 f of the
Act for the lawful use of the land within the planning unit when the new owner of that
part of the land within the planning unit which contains the private access road and the
car parking space, has blocked the entrance and exit to those previously enjoyed amenities
(notwithstanding the use of those amenities were also included in the planning consent)
and refuses to negotiate a grant of easement for such access/car parking. i.e. If these
rights do exist under the legislation how can they be exercised and enforced. Does it
become a major and expensive litigation issue or is it a Planning Department matter?

Martin H Goodall LARTPI said...

The answer to JPM’s query, unfortunately, is that problems over access and rights of way are issues that relate purely to the law of real property, in which the local planning authority will not wish to get involved. It may well become the subject of expensive litigation. It is not an area with which I deal personally (as I confine my work strictly to pure planning issues), but I have colleagues in Keystone Law who could advise on issues of this nature. For further advice, email admin@keystonelaw.co.uk , and mention that you were referred via this blog.

JPM said...

Now I am totally confused with the 'curtilage confusion". My property has been part of a 'planning unit ' since the 2 planning applications of 1988 and 2000 received consent with changes of use to the same use class ie. dwelling houses - when a large listed building and its grounds (where our property was part of the East Wing - with access to the private access road and parking 'as instituted') were converted into a number of dwelling houses all within the same planning unit. Furthermore, the LPA acknowledges that the planning consent 'allowed for our property to have access to the private access road for the purposes of parking'. Moreover a parking space which was identified in the approved plans for our property as part of that planning consent, and the private access road were identified as 'residential amenities'. Aren't the new owners of the part of the land containing the access road and the majority of the car park in breach of the conditions of the planning consent, which states that no structures should be erected which would prejudice 'the amenities of the adjoining properties' (i.e. our property) when they have installed an electronically controlled gate and have erected a fence which blocks our access at the other end of the private access road. Half a car parking space is actually within our boundary - but has been now fenced off.
Why doesn't the LPA initiate an 'Enforcement Order' to remove the structures which prejudice our use of the amenities as approved.
My thoughts are that section 55 2 f is in this case is essentially effective in conjunction with the relevant planning consents regardless of title deeds and boundaries. Otherwise, what is the purpose of the TCPA 1990 s55 2 f legislation then if it is not to give the 'lawful use of land of someone else's title?' If it just applied to the land owner's land they would have that entitlement in any event!
Is this not then a pure 'planning issue'? ie breach of planning conditions and preventing 'the lawful use of the land as approved by the planning consent and within the approved planning unit as identified in the planning applications of 1988 and 2000?
Things are never as straight forward as they appear to be - especially since I read your planning blogs about the 'use of land within the planning unit'
What else can the legislation mean- i.e. What is the 'use of land' in respect of the TCPA 1990? i.e. is it about walking on the land - or tending to the land - or driving on the land or parking on the land etc etc - or is the 'use of the land’ only with the approval of the respective land owner - or does it mean as I have interpreted it to mean that any part of the land within the planning unit including the approved use of the amenities, involves the lawful use of the land?
It is still unclear - if you have the lawful use of the land under section 55 2 f how can this be exercised and/or enforced?
Am I missing something hugely fundamental here from your blogs????

Martin H Goodall LARTPI said...

In answer to JPM’s further note, if there has been a breach of condition, then the Council should be alerted to this, and this should be pursued with them as a complaint. If the Council accepts that there has been a breach of condition, they can serve a Breach of Condition Notice (or possibly an Enforcement Notice, although a BCN is usually the preferred option). Questions over what constitutes ‘curtilage’ and the legal effect of section 55(2)(f) really don’t come into it. There are just two possible issues – (1) alleged breach of condition (see above), and (2) alleged infringement of your private property rights. The latter can only be pursued direct with the other party, with the help of a property lawyer or a lawyer dealing with dispute resolution in relation to property matters. The Council has no role in relation to this second issue.

Martin H Goodall LARTPI said...

Perhaps I should have added in my last note that section 55(2)(f) simply provides that where a planning unit is within a particular Use Class, the use of that planning unit for another purpose which also falls wholly within the same use class is not taken for the purposes of the Act to be ‘development’. It does not confer any legal rights on anyone; it simply avoids the need for planning permission for a change of use within one and the same use class.

Anonymous said...

The effect of s55(2)(f) seems not to be the only matter which has escaped the notice of planning professionals. As a lay person your blog has been very helpful in helping me to grill prospective planning consultants (many of whom seem to be ex local authority planners)to see where their opinion falls on some of these knotty issues- as an indication of their general proficiency. Needless to say I cut short a phone "interview"of an alleged "expert" whose response in relation to query about a PD extension to the front of a house (not facing a highway) in the green belt was that PD rights did not apply at all in the green belt. Keep up the good work!