Curtilage confusion (3)

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 doubt whether we shall ever be rid of problems revolving around the issue of ‘curtilage’ until legislation is eventually introduced to do away with curtilage as a legal concept altogether, and to substitute the planning unit as the appropriate entity in planning terms, by reference to which the use of land, permitted development and other issues are to be considered.

Meanwhile, the curtilage problem will continue to rumble on, and a further point has been raised by one of my readers following on from what I recently wrote on this topic. I had pointed out that, whilst the incorporation of extra land within the planning unit would become lawful if its use continued for 10 years, this would not necessarily have the effect of making that land part of the domestic ‘curtilage’ as such. This land might or might not also be incorporated within the domestic curtilage of the dwelling (though probably not in most cases); the point I was making was that inclusion in the curtilage did not automatically follow. However, that statement should not be taken as applying to the incorporation into the domestic curtilage of land already forming part of the same planning unit and which is already being lawfully used for residential purposes, even though it did not previously come within the actual curtilage of the dwelling. The question which arises in that case is for how long an extension of the domestic curtilage within the existing planning unit has to be used in such a way as to qualify it as ‘curtilage’ before the legal consequences (in planning terms) of its being within the curtilage then apply.

My correspondent has drawn my attention in this connection to the decision of the High Court in Sumption v. Greenwich LBC [2007] EWHC 2776 (Admin) [Just as an aside, one is accustomed to s.288 and s.289 applications being incorrectly cited as “R (on the application of X) v. SSCLG”, but this seems to be an example of the converse error – citing an application for JR under CPR54 as “X v. Y”.] Very briefly, Jonathan Sumption QC (who will being taking his place this year as a judge of the Supreme Court, the first such appointment directly from the bar) successfully challenged the grant of a Lawful Development Certificate to a neighbour of his who had erected a wall and gates around his property. This would normally be permitted development under Part 2 of the Second Schedule to the General Permitted Development Order (subject to certain height limits), and it does not have to be within the curtilage of a dwellinghouse, but it is not permitted development if it is within the curtilage of a listed building.

The issue before the Court was whether or not the newly erected wall and gates were in fact within the curtilage of the listed building. The Council had decided that they were not; therefore they were lawful as permitted development. The case for the Council was that they had decided as a matter of fact and degree, applying the criteria laid down in the well-known line of judicial authorities on the point, that the part of the property where the wall and gates had been erected did not fall within the domestic curtilage of the listed building, and that this decision was unassailable unless it could be shown that it was Wednesbury unreasonable.

The LDC application had referred to the ‘recently expanded garden of Hillside House’ and stated that the proposal comprised ‘the formation of a new means of enclosure to part of the western boundary of Hillside House adjacent to a highway’. It went on to seek to demonstrate that the development was outside the curtilage and would not surround the house. It was said that it was separated from the cultivated garden which had been attached to the house since the 1840s. No work, other than some mowing and tidying, had been done to the land in question and it did not ‘serve the property in a useful or necessary manner’, nor did it provide amenity space for the enjoyment of the occupier of Hillside House, or serve any functional purpose. It was visually separated from the original garden, in that it was enclosed by shrubs and trees. There had been no historical connection, bearing in mind that it was not even in the same ownership until 2004.

The learned judge acknowledged that the decision of the Court of Appeal in A-G v Calderdale BC (1982) 46 P. & C.R. 399, at 409, is authority for the proposition that there should be some historical connection of the area in question with the principal building. However, whilst Collins J accepted that lack of any such connection was a relevant fact, in his view it was not determinative. The reason for the erection of the fence in this case would not of itself determine whether the land enclosed by it comes within the curtilage. He therefore felt it was necessary to look at the factual situation created by the erection of the fence. In an urban environment, land attached to a dwelling house which is able and intended to be used in conjunction with the house (whether or not formally described as its garden) is likely to be within its curtilage. [This rather obviously begs the question, where the planning unit is large enough to embrace land which might not come within the usually accepted definition of ‘curtilage’.]

Collins J then posed this question: “Over the years, land may have been acquired which extends a garden. One has to ask oneself whether there is a minimum period over which it has to be held and perhaps used before it can properly be said to form part of the curtilage.” However, this is a question which the learned judge does not seem to have attempted to answer. Instead, he said that it seemed to him that it is necessary to determine the status of the land from the factual situation existing at the date of the application. The land had been acquired in 2004, it had been fenced and it was useable and was intended to be used as an extension of the garden of Hillside House.

Mr Sumption (in challenging the LDC) relied on the fact that the land was physically proximate to the house, had been enclosed with the house and was being landscaped with the rest of the grounds. In addition, he relied on the reference in the certificate to the erection of a ‘boundary wall and gates’ to Hillside House. The nub of Collins J’s judgment was set out in paragraph 27 - He concluded that once the wall was erected and the garden use confirmed so that the land did indeed form part of the garden of Hillside House it would be well nigh impossible to contend that it was not within the curtilage. It did not seem to him to be relevant that the garden use had not formally been approved. What mattered was what was in fact the use being made of the land. It was clearly capable of being used by the owner and some work had been done, if only tidying. He had access to it and it was now part of the land attached to Hillside House and being enjoyed with it. The learned judge did not regard the historical lack of connection as being capable of carrying weight in the circumstances. It was the situation as at November 2006 which was material. He was clearly of the view that the facts permitted of only one conclusion, namely that the curtilage of Hillside House does extend over the land in question. The reference in the application to the ‘recently expanded garden’ was accurate and was fatal to the grant of the certificate.

[I have deliberately refrained from going into a subsidiary argument about the precise wording of paragraph A(1)(d) in Part 2 in the GPDO, as that raises a different point.]

It seems to me that, when considering permitted development rights within Part 1 of the Second Schedule to the GPDO, the decision in Sumption may be taken as authority for the proposition that land does not have to be incorporated within the domestic curtilage for any specific length of time before the legal consequences of its being so defined take effect. That coincides with my own view of the position, although the way in which I had approached the point was to argue that incorporation of land within the curtilage of a dwellinghouse (or other building) is purely a matter of fact and degree; it is not a ‘use’ of the land for planning purposes, and so concepts relating to material changes of use are irrelevant, as are the time limits under the 4-year or 10-year rules. It is for that reason that I would agree that it is the position at the material date which has to be considered, which in the case of an LDC application is the date of the application.

This does, however, leave several points unresolved. First, it is difficult to reconcile this view with the view apparently taken by the Court of Appeal in Calderdale that there should be some historical connection of the area in question with the dwellinghouse (or other principal building), although it may be relevant to point out that that decision related to the curtilage of a listed building (a point to which I will return below).

Secondly, there is also an outstanding query arising from the lawfulness of the use of the area of land under consideration. Collins J seems to have lightly swept this point aside in Sumption, but it might well be argued that land cannot be treated, as a matter of fact and degree, as being within the curtilage of a dwellinghouse if its use as part of the planning unit (comprising the dwellinghouse together with the land occupied with it) is not lawful, because it has been incorporated in the planning unit without planning permission and this change of use has not become immune from enforcement under the 10-year rule. The converse proposition could lead to some mind-boggling anomalies. If the lawfulness of the use of the land had no bearing on its being within the curtilage, permitted development rights would in principle apply to that land, even though its use for residential purposes remained unlawful!

A third point, which might arise when considering a listed building, is the extent of the listing in relation to outbuildings, boundary walls, gates, etc. It seems to me that for this purpose one should consider the curtilage as it was at the time of the original listing, in accordance with Calderdale.

I freely admit that I seem to be advocating a different approach when considering the curtilage in relation to the extent of the listing in the case of a listed building, compared with the approach which I have suggested to the identification of the curtilage in relation to permitted development rights under Part 1 (and in particular Class E) of Schedule 2 to the GPDO. The ‘historical connection’ does seems to me to be relevant in the context of a listed building, but I am still inclined to take the ‘current situation’ as the appropriate starting point in considering the curtilage in the context of PD rights for non-listed buildings. There is just one minor problem with this dual-pronged approach - arguably Sumption should have been decided on the ‘historical connection’ basis, as per Calderdale, rather than on the basis of the ‘current situation’ (!)

This may not be the conclusion which my correspondent had expected, but I stress that the view I have expressed is potentially open to challenge, and so must be regarded as a provisional or tentative view for the present . This means, I fear, that the High Court may be troubled by this issue again at some date in the future, and Planning Inspectors will have to wrestle with it as best they can in the meantime.

© MARTIN H GOODALL