Tuesday, 6 December 2011
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  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.
© MARTIN H GOODALL