Wednesday, 19 July 2017

Court considers curtilage

I have not posted any new items on this blog for a while, because I have been extremely busy finishing the text of my next book, which I am hoping to send off to the publishers this week. (It is due for publication in the late Autumn.) But there is one case in particular that I have been wanting to write about here, which brings me back to one of my favourite topics – the issue of “curtilage”.

In Burford v SSCLG [2017] EWHC 1493 (Admin), in which judgment was given on 23 June, the High Court had to consider the definition of “curtilage” in the context of Part 1, Class E of the Second Schedule to the GPDO. This arose from a decision in an enforcement notice appeal, which the claimant was seeking to challenge under section 289.

I have written ad nauseam on the distinction between the planning unit and the curtilage of a building that stands within that planning unit. The two are not synonymous. In the instant case, an LDC had been issued that confirmed that an area of land (which included the land on which an outbuilding was subsequently built, purportedly as PD) was within the residential planning unit, and it was contended that the wording of the LDC confirmed in effect not only that the land in question was within the planning unit but also that it formed part of the residential curtilage.

It is well understood that the “curtilage” of a building (such as a dwellinghouse) does not represent a use of the land for the purposes of the planning legislation. Thus, it is not possible to obtain a Lawful Development Certificate that will confirm that part (or the whole) of a particular piece of land is within the curtilage of the dwelling as such. [In practice, this can be achieved by applying for an LDC under section 192 in respect of the intended erection of an outbuilding or swimming pool, etc. If the LPA believes it is not within the domestic curtilage, and cannot therefore be PD under Part 1, Class E, they will refuse to issue a certificate. In the event of a dispute, the refusal to grant an LDC may be tested by way of an appeal under section 195.]

The basis of the legal challenge in Burford was that the Inspector’s decision, dismissing a section 174 appeal against an enforcement notice directed at the erection of the building in question, was irreconcilable with the terms of an LDC that the LPA had previously issued, confirming the lawfulness of “use of the land and buildings within the land edged red on the plan for purposes incidental to the enjoyment of the dwelling house known as Oakcutts”. However, in his decision letter in the enforcement appeal, the Inspector stated :- “All that the LDC confirms is that all of the land edged red (which is all within the ownership of the appellants) may be used for the purposes stated in the LDC; that may be garden-type use or it may be some other incidental use, e.g. a paddock for horses, or it may be a mix of several incidental uses. Further, curtilage is not a land use at all and does not necessarily comprise all of the land in someone’s ownership or all of the land forming a planning unit. What constitutes the curtilage of any dwelling is a matter that has been before the courts on a number of occasions and is a matter of law. Whilst I will make a determination on the curtilage in this decision, it is ultimately for the courts to determine in any given case.”

There was no dispute between the parties that all the land forming the LDC application and decision was one planning unit or that its use was now residential; i.e. a dwelling and other uses and buildings that were incidental to the residential use of that dwelling. However the Inspector concluded that, whilst this was now an accepted fact, it did not appear to him that the land was curtilage. The domestic curtilage of the house was confined to the clearly physically separate land immediately to the north, west and south of the dwelling. All the other land was physically separated from it by fences and hedges at least until November 2015. Prior to October 2014 there seem to have been just paddocks on the large area to the east and northeast of the dwelling except for the mobile home and other buildings close to the northern boundary. That use, albeit with others, may have continued until November 2015.

This led to the Inspector’s finding that, whether looked at in terms of how it appears on the ground or the uses to which it was and is put, and taking into account the way in which the courts have considered what is and what is not the curtilage of a building, the large rectangular area that lay to the east of the dwelling could not be described as curtilage. It was used as horse paddocks, with the animals being kept separate from the much smaller garden area that constituted the curtilage.

Even without this case having come to court, I would unhesitatingly have said that, based on his findings of fact, the Inspector was absolutely right.

When this matter came before the High Court, the judge rather surprisingly made no mention of the judgment that I have always regarded as the locus classicus in relation to this issue - Sinclair-Lockhart’s Trustees v Central Land Board (1950) 1 P.& C.R. 195. Instead, he cited the Court of Appeal decision in Attorney General ex rel Sutcliffe v Calderdale BC (1982) 46 P.&C.R. 399 (a case on which it would be unwise to place too much reliance). He also mentioned Dyer v Dorset CC [1989] 1 QB 346 (complete with its misleading reference to the dictionary definition of “curtilage”), although he did then draw attention to the Court of Appeal’s reservations about this, as expressed in Skerritts of Nottingham Ltd v SSETR [2001] QB 59. In that Court of Appeal judgment, Robert Walker LJ went on to say this: “.........the curtilage of a substantial listed building is likely to extend to what are or have been, in terms of ownership and function, ancillary buildings. Of course, as Stephenson LJ noted in the Calderdale case, 46 P&CR 399, at 407, physical ‘layout’ comes into the matter as well. In the nature of things the curtilage within which a mansion’s satellite buildings are found is bound to be relatively limited. But the concept of smallness is in this context so completely relative as to be almost meaningless, and unhelpful as a criterion.

Nevertheless I still retain my reservations about Calderdale.

The challenge in the instant case was based on a submission that in determining the curtilage for the main dwelling house at the Site, the Inspector erred by reaching a conclusion on the curtilage issue which was irreconcilable with the extant LDC (or CLEUD) granted by the LPA in respect of the Site in December 2015 or, alternatively, by failing adequately to have regard to the functional relationship between the dwelling house and the land on which the Building was constructed. This involved arguing that the paddock area should properly be included within the curtilage, a proposition which seems to me to have been pretty hopeless in view of numerous findings over the years that have reached a contrary conclusion in relation to such areas.

Supperstone J rejected the contention that the Inspector’s conclusion concerning the curtilage of the dwelling house was irreconcilable with the LDC. All that the LDC determined was that the Site may lawfully be used for purposes incidental to the enjoyment of the dwelling-house. The LDC did not consider whether the land was within the curtilage of the dwelling house, nor did it accept that the land (including the Site) fell within the “garden” of the dwelling-house. His lordship accepted the counter-submission made on behalf of the Secretary of State and the LPA that whilst the function of the land is relevant to the question of curtilage, it is not determinative. The LDC simply certified that the land in question had been used “for purposes incidental to the enjoyment of the dwelling house known as Oakcutts”. It was determinative only of one necessary condition of the Site forming part of the curtilage, and the Inspector treated it as such. The LDC was of no assistance in resolving the question of whether the land is attached to the dwelling house forming one enclosure with it.

Nor did his lordship accept the Appellant’s contention that the Inspector failed to have regard to the functional relationship between the dwelling house and the land on which the Building was constructed. It was clear from the Inspector’s analysis in his decision letter that he did so. Supperstone J observed that the challenge to the Inspector’s decision was essentially a rationality challenge. Whether something falls within a “curtilage” is a question of fact and degree and thus primarily a matter for the decision maker. It was for the Inspector to decide what weight should be given to each of the relevant factors. The judge was satisfied that, on the evidence, the Inspector was entitled to conclude that the land on which the building subject to the enforcement notice was erected was not within the curtilage of the dwelling house because it “was physically separated from other land by fences and hedges at least until November 2015”. The land was therefore unattached to the land surrounding the dwelling house and not forming one enclosure with it.

Accordingly, for the reasons given in the judgment, the Inspector did not err in deciding that the building did not benefit from the permitted development right in Part 1, Class E of the Second Schedule to the GPDO because it was not “within the curtilage of the dwelling house”.

On balance, I do not believe that this takes the law on the definition of “curtilage” any further. It simply follows the well-known rules that have become established over the past 70 years or so. It seems to me that the judge was bound to reach the conclusion he did, as was the Inspector, whose original appeal decision was clearly unassailable. The one point which the case does perhaps amplify is that the identification of a building’s curtilage is not solely dependent on its functional relationship with the building in question (under the Sinclair-Lockhart test), but that it must also be within an area of land surrounding the building that forms one enclosure with it. To that extent, the judgment in Dyer may still be relevant, provided that one bears in mind that other aspects of the Dyer judgment were expressly rejected by the Court of Appeal in Skerritts of Nottingham.



  1. I imagine the unsuccessful claimants could simply take down some fences, pull up some hedges, start using the land for things within the LDC that are more intimately associated with the house than keeping horses.

    None of this would normally require PP (assuming no restrictive conditions etc).

    And as curtilage is not a use of land that requires PP (or 10 year immunity) they could presumably claim curtilage PD rights the very next day.

    I suspect this is a problem that won't go away until the GPDO is amended to remove any definition to curtilage but...

  2. I have also had considerable reservations about Calderdale, not least, because my understanding of that case was that at the time the question of curtilage was considered, the ownership of the land had moved from the County Council to the District Council. Thus the question of continuity of ownership the property, deemed to be crucial in determining whether the property was in the same ownership at the time of the listing, was missing. In other words, the cottages had been sold off at the time of the listing and therefore, by definition, we're not in the same ownership and therefore curtilage at the time of listing.
    Thank you as always for your attention to detail.

  3. In answer to Richard W’s comment of 21 July, what he suggests might be a way forward in a case such as this, provided that the land in question does actually form part of the same planning unit (in accordance with the rule in Burdle) and is lawfully used as such.

    It would still, however, be ‘a matter of fact and degree’ as to whether such land could genuinely be seen to be ‘curtilage’ in accordance with the Sinclair-Lockhart test, bearing in mind the “single enclosure” test proposed by Dyer v Dorset CC (as now applied in Burford).

    It is possible that the proposed location of the outbuilding in a case such as this might still be too far away from the house for the area in question to be accepted as ‘curtilage’.

  4. I follow your posts relating to curtilage with interest and they have helped significantly with my understanding of this area of planning law.

    I have observed that in some instances you reference domestic curtilage and in others you reference residential curtilage; are the two interchangeable or is there a difference in law from a planning point of view?

    Many thanks.

  5. Yes. There is no distinction between ‘domestic curtilage’ and ‘residential curtilage’. They are just different ways of describing the same thing.

    It should be remembered that it is not just dwellinghouses that have a curtilage; any building (if it is the principal building on the planning unit) may have a curtilage, provided the land immediately surrounding it complies with the Sinclair-Lockhart test, and also with the “single enclosure” test (as per Dyer, and now Burford).

  6. If one obtains a lawful use certificate after 4 years will the curtilage used as a garden in that time become lawful with it,even if it s a large garden circa 1.25 acres.and will your new book out in October covers this as on order.
    Thanks in advance.

  7. In answer to my anonymous correspondent today, my new book (due out in November) does indeed cover this point. But where land not previously in residential use has been added to a residential property, I have made the point that it is the 10-year rule that applies, not the 4-year rule. Bearing in mind that the use of the extra land in question would not be lawful until 10 years have elapsed, Article 3(5) of the GPDO will prevent the exercise of an any PD rights on that extra land until then (and would then depend on this extra land, or the relevant part of it, genuinely being within the curtilage of the house at that time).

  8. I thank you Martin for your prompt comment (8 September),does this mean one could carry on using the land as garden till 10 years time bar without enforcement action! As garden as a use seems not to be recognised.many thanks in advance.

  9. An unauthorised change of use remains potentially liable to enforcement action at any time until the relevant time limit for enforcement action has been reached (in this case, 10 Years). [One should not ignore the possibility that the LPA might claim even after that that the unauthorised development had been ‘concealed’ in some way, which would enable them to seek an extension of time within which to serve an enforcement notice. But I have always taken the view that ‘concealment’ needs some sort of deliberate conduct on the part of the landowner. The mere fact that the council never noticed it does not, in itself, amount to ‘concealment’.]

  10. While doing house-keeping on the computer, I have just re-read the original query of 8 September.

    One point I did not mention is that if the LDC referred to is sought and obtained under the 4-year rule on the basis of a change of use of a building (which had not previously been in use within Use Class C3) to use as a single private dwelling, then the land occupied with it at that timeand forming an integral part of the planning unit whose use has been changed to residential use should be included in the LDC application, and the LDC will apply equally to that land as it does to the building itself.

    So in that case, the garden land will be covered by the 4-year rule. However, this will be ‘a matter of fact and degree’, and the LPA (or an Inspector on appeal) would have to satisfied, on the balance of probability, that the whole of the land claimed to be in the residential planning unit has genuinely been used as part of that planning unit throughout the 4-year period. However, as I pointed out on Friday, if the land in question is added to the planning unit at any time after the change of use of the building took place (or is added to any other building that is already lawfully in use as a dwelling), then the change of use of this extra land will not benefit from the 4-year rule, and so the 10-year rule will apply to the change of use of that extra land.

  11. Martin,I thank you again for you comments on this point worryingly not all planners seem to understand this point!
    But you have confirmed my thoughts,looking forward to November book launch purchased last book very very helpful to me,recommend to anyone.regards anonymous.

  12. I have read this (and several other related) articles with great interest. I have been advised that I require listed building consent for works to a building in my ownership because the planning authority consider it to be curtilage listed. I disagree with this assessment (issues of historic use and physical relationship suggest to me that it is not). I am, however, at a loss as to how I can challenge the authority's assertion. I do not want to undertake the works only for enforcement action to be taken against me and for me to have to defend against this to get a decision, but can find no details of any other mechanism being available to me. Are you aware of this issue arising elsewhere? Or are you aware of any other options available to me? Many thanks.

  13. If you wish to confirm that the works in question do not require Listed Building Consent (because this building is not ‘curtilage listed’) you can make an application to the local planning authority under section 26H of the Planning (Listed Buildings and Conservation Areas) Act 1990 for a Certificate of Lawfulness of Proposed Works, citing in the application the judgments in Sinclair-Lockhart’s Trustees v Central Land Board (1950) 1 P. & C.R. 195, R (Egerton) v Taunton Deane BC [2008] EWHC 2752 (Admin) and also Burford v SSCLG [2017] EWHC 1493 (Admin). If the LPA refuses to grant this certificate or fails to determine the application, you can then appeal to the Planning Inspectorate under section 26K of the Act.

    This may seem a somewhat cumbersome and expensive way of going about it, but it has the advantage of clarifying the position without having to take the risk of doing the works, and then facing either a Listed Building Enforcement Notice or even prosecution under section 9 of the Act, in the event that your assertion that the building in question is not in fact ‘curtilage listed’ proves to be wrong.

  14. As you have consistently highlighted, definition of the curtilage will invariably require a fact and degree assessment where it is important to consider the building’s physical and functional relationship. In Burford the court decided that the degree of physical separation was a relevant consideration for the Inspector to take into account when deciding the true extent of the curtilage. However, the court did not rule that an absence of physical separation must always be present for land to be considered as curtilage. Indeed, the court could not have made such a ruling, as it will always be a matter of fair planning judgement.

  15. I am grateful to my colleague, Ben Garbett, for this comment. In the case that was before the court in Burford, there was an obvious distinction between the land immediately surrounding the house which was clearly within its domestic curtilage, and land further away from the house that lay outside the curtilage. Other examples that could be cited are Collins v SSE [1989] P.L.R. 30 and McAlpine v SSE [1994] E.G.C.S. 189. In Collins an 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.) In Burford, the court could have dismissed the challenge to the Inspector’s appeal decision on this ground alone, without resort to other cases such as Dyer and Skerritts of Nottingham.

    As I have pointed out, the Court of Appeal in Skerritts criticised the adoption by the court in Dyer of the dictionary definition, and in particular the use of the word “small” in that definition. But they did not demur from that part of the dictionary definition that refers to the piece of ground being “attached to a dwelling-house, and forming one enclosure with it”. On this basis, the Court of Appeal in Dyer had accepted the proposition (drawn from the authorities in that case) that “an area of land cannot properly be described as a curtilage unless it forms part and parcel of the house or building which it contains or to which it is attached”.

    In Burford, Supperstone J also drew attention to the words of Sir Richard Tucker in Lowe v Secretary of State [2003] EWHC 537 (Admin), when he observed: “Of the authorities cited to me, I derive most assistance from the decision of the Court of Appeal in Dyer v Dorset CC, and in particular the judgment of Nourse LJ …… . The expression ‘curtilage’ is a question of fact and degree. It connotes a building or piece of land attached to a dwelling house and forming one enclosure with it. It is not restricted in size, but it must fairly be described as being part of the enclosure of the house to which it refers.” Supperstone J was therefore satisfied that on the evidence the Inspector was entitled to conclude that the land on which the building subject to the enforcement notice was not on land comprising curtilage of the dwelling house because it “was physically separated from [other land] by fences and hedges at least until November 2015”, and so he was satisfied that the land was therefore unattached to the land surrounding the dwelling house and not forming one enclosure with it. “Curtilage”, he reiterated, is an area of land “attached to” a house and “forming one enclosure with it” (see Dyer and Lowe cited above).

    [It seems that there is now a limit on the length of comments (!), so I will have to continue in a second comment.]

  16. [To continue.......]

    It is on this basis that I drew attention in the blog post above, and have reiterated in my latest book, in paragraph 2.2.1 on page 23 (and again in paragraph 2.2.2 at the bottom of page 27) that, to be within the curtilage of a building, the area of land in question must not only satisfy the functional test laid down in Sinclair-Lockhart’s Trustees, but must also form one enclosure with the building. I agree with Ben, however, that this must always be ‘a matter of fact and degree’ involving a factual judgment on the part of the decision-maker. This has clearly been stressed by the courts, and I repeated this point at the bottom of page 23.

    Bearing that last point in mind, I am not suggesting that, as a matter of law, an absence of physical separation must always be present for land to be considered as curtilage, but in light of the clear judicial authorities on this point, an element of physical separation (whether by means of fences, walls or hedges, or even just a visible change between mown lawns and rough grass or a paddock, such as the example in Collins) would justify a decision-maker in deciding on this basis that the land beyond this actual or notional boundary is not in fact within the curtilage, and this will be the likely outcome in most cases.

  17. Martin, I note nearly two years have elapsed since your last post on the matter of curtilage in the context of listed buildings. Hopefully you will not object to me revisiting an old post?

    If i have understood correctly all of the following criteria have to be met for a building or structure to be considered to be within the curtilage:

    A structure is a curtilage structure if – and only if – it:
    (i) was built before 1948; and
    (ii) was in the same ownership as the principal listed building at the date of listing; and
    (iii) was in the curtilage of the principal listed building; and
    (iv) was ancillary to the principal listed building.

    If for example the curtilage structure was not within the same ownership as the principal listed building at the time it was listed (ii above), then it would fail to meet the test and therefore not be subject to curtilage listing?

    Grateful for any clarity on this particular point that you can give.

    1. In answer to the points raised:

      (i) Section 1(5)(b) of the Listed Buildings Act applies the listing to any object or structure within the curtilage of the building which, although not fixed to the building, forms part of the land and has done so since before 1 July 1948.

      (ii) As regards ownership, different ownership (at the time of listing) will almost certainly be evidence that that there were two different planning units (see the rule in Burdle). Land in one planning unit cannot be within the curtilage of a building on another planning unit (see Westminster City Council v British Waterways Board, and also Sinclair-Lockhart’s Trustees v Central Land Board).

      (iii) To have been within the curtilage of the listed building at the time of listing, the part of the land on which the subsidiary building was located must have had an essential functional relationship with the listed building. So if the listed building was in residential use, then the use of the subsidiary building must have been domestic in nature (e.g. domestic storage, garaging, laundry or whatever) (see Sinclair-Lockhart’s Trustees again, and also R (Egerton) v Taunton Deane BC). Furthermore, it must also have been within one enclosure with the listed building (see Dyer v Dorset CC, also Burford v SSCLG).

      (iv) This is not a necessary qualification in the case of a building situated within the curtilage of the listed building (as opposed to being physically attached to it) although, in practice, bearing in mind the rule in Sinclair-Lockhart’s Trustees, it almost certainly will be subsidiary. I suspect that what Landman82 has in mind is the rule applying to any object or structure fixed to the building, which is thereby listed under section 1(5)(a). In this case, Debenhams plc v Westminster LBC established that to be listed under section 1(5)(a) the attached structure had to be subordinate or subsidiary to the listed building.

  18. I'm having problem locating a copy of Sinclair-Lockhart’s Trustees v Central Land Board (1950) 1 P.& C.R. 195. Is there one freely available online or is there a reasonable priced way of acquiring a copy. Kind regards,

    1. On checking my own records the other day, I realised that I no longer have my own copy of this judgment, having cleared out a lot of paper copies of judgments last year. So I must rely on my firm’s online subscription service to the Property and Compensation Reports (although, unconnected with this, I am currently unable to access this service myself – our IT people are working on it).

      A large law library might have copies of this report series. This case was in the very first volume in the series (published in 1950). Offhand, I can’t think of an alternative way of accessing this case report, but if any reader can assist my unknown correspondent, perhaps they would like to post a reply here.

      Incidentally, I have recently written another blog post on 'curtilage', and readers may find it useful to refer to this.