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.

© MARTIN H GOODALL

11 comments:

Richard W said...

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...

David Forbes said...

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.

Martin H Goodall LARTPI said...

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’.

Matthew R said...

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.

Martin H Goodall LARTPI said...

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).

Anonymous said...

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.

Martin H Goodall LARTPI said...

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).

Anonymous said...

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.

Martin H Goodall LARTPI said...

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’.]

Martin H Goodall LARTPI said...

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.

Anonymous said...

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.