Tuesday, 9 July 2013
Curtilage in relation to lawful use
I have received a comment from a planning officer which raises a question about a particular LDC application that they have received. I don’t think I should publish the officer’s comment in the form in which it was submitted, as it discusses the application in more detail than is perhaps appropriate in this forum. Nevertheless, the comment raises specific points of interest which I thought it worth discussing here.
A CLOPUD is being sought for development which is claimed to be permitted development. This depends on the land in question being domestic curtilage so as to bring it within the terms of Part 1 of the Second Schedule to the GPDO.
Planning permission was granted for the erection of a dwelling on a smallholding. The officer says this was an outline permission. But before the dwelling was built there must have been a reserved matters approval. In any event it is the outline permission that constitutes a planning permission, and section 75 of the 1990 Act provides that where planning permission is granted for the erection of a building, the grant of permission may specify the purposes for which the building may be used, and if it doesn’t then the permission is to be treated as authorising its use for the purpose for which it was designed. (I am assuming that the house has actually been completed - failing which no PD rights under Part 1 could arise yet.)
If the approved drawings are examined, it should be easy enough to determine the extent of the planning unit to which that permission related, but this may no longer be of any great relevance because, in the case in question, evidence apparently indicates that the relevant area (now claimed to be ‘curtilage’) has been used as garden land well in excess of 10 years, and this would seem to indicate that its use has become lawful, so that it lawfully forms part of the same planning unit as the house.
Notwithstanding this, my correspondent refers to an appeal decision on another site in 2001 in an appeal against the refusal of a CLEUD for “use of surrounding area of land to house to use as residential”, which was dismissed because the Inspector concluded that “whilst it is unusual for a home not to have residential curtilage – no area is defined on the permission”. With respect to that inspector, this is a rather inaccurate and woolly statement. I suspect that what the inspector meant was that the permission did not identify any planning unit other than the footprint of the house itself (which is unusual but not unknown). However, in the present case, this is no longer relevant, because an area of garden land has been added to the planning unit, and the evidence indicates that this change of use has become lawful under the 10-year rule.
The next question is how far the domestic curtilage extends. I have discussed this issue in this blog ad nauseam, so just take a look through the various discussions on this issue. But ‘use’ as domestic curtilage is not a use for planning purposes – it is just a matter of fact, and it can change at any time very easily.
Two points should be borne in mind. First, by virtue of Art. 3(5)(b) of the GPDO, PD rights cannot be exercised over land whose use is unlawful. It follows that permitted development within a domestic curtilage cannot be carried out on land that is not lawfully in domestic use. So whilst there is no qualifying period for land to become domestic curtilage, it cannot be treated as domestic curtilage for the purposes of the GPDO if its residential use is unlawful or has not yet become lawful. On the other hand, if the relevant area is lawfully used as part of a planning unit falling within Use Class C3 (i.e. a single private dwellinghouse and the land occupied with it and lawfully used for domestic purposes) the domestic curtilage can be extended at any time to include an enlarged part or even the whole of that planning unit (see Sumption v. Greenwich LBC). Whether this has in fact happened is simply a question of fact, applying the test in Sinclair Lockhart’s Trustees and the other cases discussed in previous posts.
If the garden land is lawfully used as such (as seems to be the case here), then it is capable in principle of having become part of the domestic curtilage. In fact, if it forms part of the formal garden around the house, or a vegetable garden, and is not separated from the house by, say, a paddock or area of rough grass, then it is very likely that it is indeed part of the domestic curtilage. An LDC cannot be issued in respect of the ‘use’ of land as ‘domestic curtilage’ (for the reason previously mentioned) but a certificate can be issued in respect of permitted development that is dependent on the land in question being within the domestic curtilage (i.e. PD within Part 1), which in effect provides the desired confirmation of the status of the land as domestic curtilage, albeit by a slightly different route.
So in the case mentioned by my correspondent, it seems that the land in question is lawfully part of the residential planning unit, and it is simply a question of deciding whether as a matter of simple fact it does actually form part of the domestic curtilage as such. If it does, then (subject to the rules in Part 1 as to the precise siting and dimensions of extensions and outbuildings), it would appear that a CLOPUD ought to be issued in respect of the proposed domestic extensions.
I have gone through this case simply to show how questions of this sort should be approached. The outcome of the pending application to which I have referred will ultimately turn on a factual judgment as to the actual extent of the domestic curtilage, and this will depend on the evidence put forward by or on behalf of the applicant. In assessing this, planning officers should always bear in mind paragraph 8.15 in Annex 8 to Circular 10/97 and the judgment in FW Gabbitas v. SSE referred to in that paragraph.
© MARTIN H GOODALL