tag:blogger.com,1999:blog-8170718846507476773.post3301433689369554682..comments2022-12-13T14:45:12.233+00:00Comments on Martin Goodall's Planning Law Blog: Curtilage confusionMartin H Goodallhttp://www.blogger.com/profile/07079479984296674469noreply@blogger.comBlogger154125tag:blogger.com,1999:blog-8170718846507476773.post-88514910791805054222021-08-23T15:45:15.308+01:002021-08-23T15:45:15.308+01:00I’m sorry, but I simply don’t understand this ques...I’m sorry, but I simply don’t understand this question. Public footpaths either exist or they don’t. It makes no difference what type of property they cross. Public footpaths should appear on the definitive map, and if they don’t then the highway authority can be asked to correct the map (and various statutory procedures would then kick in).<br /><br />A public footpath is a highway, and can only be created if the landowner has shown an intention to dedicate the path as a public right of way. However, such dedication can be presumed from long use without the path having been closed-off (even if only for one day of the year each year) or, alternatively, without notices being posted to indicate that the path is not dedicated as a public right of way, or by means of some other type of periodic challenge to negative the presumption of dedication.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-19912053884114312072021-08-21T15:30:25.867+01:002021-08-21T15:30:25.867+01:00Can a footpath not on the definitive map then be p...Can a footpath not on the definitive map then be placed through the curtilage of a listed buildingAnonymoushttps://www.blogger.com/profile/16374911477796049568noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-42307686891167276352020-11-20T13:06:33.158+00:002020-11-20T13:06:33.158+00:00As my anonymous correspondent appreciates, Scottis...As my anonymous correspondent appreciates, Scottish planning law differs in various respects from English planning law, but I am not personally familiar with those differences. I am unable to say, therefore, whether or to what extent the principles established by the English legislation for the protection of various heritage assets may be relevant North of the border.<br /><br />In England, section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 provides that in considering whether to grant planning permission for development which affects a listed building <i>or its setting</i>, the local planning authority must have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.<br /><br />I would not be at all surprised if there is an equivalent provision in the Scottish legislation, but my unfamiliarity with the way in which the Scottish planning legislation is organised prevented me from finding it during an admittedly brief and rather superficial search on the Legislation (UK) website.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-50639350147376698002020-11-19T15:32:01.010+00:002020-11-19T15:32:01.010+00:00Dear Martin, We have a situation with a listed bu...Dear Martin, We have a situation with a listed building we own in Scotland whereby a planning application has been submitted for a sizeable shed requiring electrical and plumbing for commercial use and a commercial 2500 above ground fuel tank to be erected across the road from our house. This will not be in keeping with the historic nature of the neighbourhood. We consider that the proposed development would affect the setting of our listed building which is a building of historic interest. The development of the shed and exterior bunding would also block an iconic view for visitors to the site as well as ourselves. Would the laws in England and Wales be relevant to a case such as this in Scotland? Thank you for your consideration to my question. I would prefer to remain Anonymous as we are challenging the Council on this building application. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-66630400071350922112020-11-16T10:37:36.419+00:002020-11-16T10:37:36.419+00:00Just a quick addendum to this reply: First, there...Just a quick addendum to this reply: First, there are a couple of typos in the last line, the end of which should read: “the Part 2 PD rights are entirely separate from and unrelated to those under Part 1.”<br /><br />Secondly, I stated that a gate, fence, wall or other means of enclosure can be erected <i>anywhere</i> as permitted development under Part 2 (Class A). This is correct, but it must nevertheless serve the function of <i>enclosure</i> (as it clearly does in the case referred to above.)<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-9631496824221836112020-11-16T10:03:13.522+00:002020-11-16T10:03:13.522+00:00A gate, fence, wall or other means of enclosure ca...A gate, fence, wall or other means of enclosure can be erected <i>anywhere</i> as permitted development under Part 2 (Class A) of the Second Schedule to the General Permitted Development Order. This permitted development right is <i>not</i> confined to the domestic curtilage of a dwelling; in fact it need not be associated in any way with any building or any identified planning unit at all. (Nor, in contrast with the formation of an access to a highway, which is permitted by Class B in Part 2, does it have to be required in connection with any other permitted development.)<br /><br />However, where the gate, fence, wall or means of enclosure is erected or constructed adjacent to a highway used by vehicular traffic, its height must not exceed 1 metre above ground level. In other cases, its height must not exceed 2 metres above ground level. (There is a prohibition on this type of development where it is either within the curtilage of a listed building or surrounds a listed building.)<br /><br />The planning officer appears to have got in a muddle over this, and would appear to have assumed that the right to erect a wall, fence, etc. derives from Part 1, rather than Part 2 of the Second Schedule to the GPDO, whereas (as I have pointed out above) the Part 2 PD rights are entirely separate fand unrelated to those under Par 1.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-4581678902168388182020-11-15T19:20:47.207+00:002020-11-15T19:20:47.207+00:00Good evening, we recently purchased a semi detache...Good evening, we recently purchased a semi detached house with a nice side plot. We wanted to extend to make a nice family home but since we knocked the garage and surround brick walls down to put a fence in we have had nothing but problems. We erected a 6foot fence round the boundary line to use the full extent of our garden for the children and dogs. We then received a letter of complaint from the council saying they had, had a complaint and we must either put in for planning to keep it at 6foot, cut it down to a meter as it’s adjacent to a high way or move it back to here the wall was and have no issues. We chose to cut it down and keep it where it is, we had been given a date to have this done by which we kept to but they actually hadn’t bothered to come check if we had Done it. A month has gone by now and we have since had all the land flattened and top soiled and then last week laid 200 turfs. Monday I received another email saying that although I had cut the fence down that now Is not acceptable and the land is actually residential curtilage and I must remove the fence and put it back to where the old brick wall was (around 3metres further back into the garden).<br />The planning officer stated that the precious officer has got it wrong and I have 14 days to remove it or they will send people round to remove it at my expense. <br />She explained that all though I own the land I cannot use it and that we must just keep it but not Use it. <br />Please help. <br />Stevehttps://www.blogger.com/profile/01152500041184812485noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-85993115012974732132018-11-23T17:04:53.825+00:002018-11-23T17:04:53.825+00:00In answer to Darren (16 November), it is for a loc...In answer to Darren (16 November), it is for a local planning authority to devise their own planning policies (subject to the statutory procedure leading to their formal adoption). If the LPA in question has chosen to define ‘infill’ development by reference to domestic curtilages, as distinct from residential planning units, then this is largely a matter for them.<br /><br />I can see the argument that the planning unit ought to be considered, and it is something that might be argued appeal, but I cannot give Darren any encouragement as regards the outcome of any such appeal, in view of the terms of the adopted local plan.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-27204748075379439462018-11-16T15:57:54.507+00:002018-11-16T15:57:54.507+00:00Afternoon
Our local authority currently has a poli...Afternoon<br />Our local authority currently has a policy for infill housing within its adopted local plan. In determining whether a site is infil housing or development in the countryside it uses the Residential Curtilage as the benchmark, i.e. anything outside the residential curtilage of a site is deemed development in the countryside. Having read this post however it seems to me that its actually the planning unit that they should be using not the "residential curtilage" would that be reasonable or correct?Darrenhttp://channeldesignltd.co.uknoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-15617602867484628592018-11-15T15:17:14.668+00:002018-11-15T15:17:14.668+00:00In answer to my anonymous correspondent of 14 Nove...In answer to my anonymous correspondent of 14 November, the law gets you either way! If the land on which the summer house is erected is within the curtilage, it is disqualified from permitted development. Paragraph E.1 provides that development is not permitted by Class E if –<br /><br />(c) any part of the building or strcuture would be situated on land forward of a wall forming the principal elevation of the original dwellinghouse;<br /><br />or<br /><br />(g) the building, or structure would be situated within the curtilage of a listed Building.<br /><br />If the summer house is not within the curtilage, then it does not come within Class E of Part 1 anyway, which permits development only <i>within the curtilage</i> of a dwellinghouse.<br /><br />Thus the summerhouse would require planning permission, for which a formal planning application must be made.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-86391318462862352832018-11-14T21:32:47.017+00:002018-11-14T21:32:47.017+00:00Another convert to your excellent website.
I also...Another convert to your excellent website.<br /><br />I also have a question which has perplexed me and others in my battle with the LA.<br /><br />I own a Grade II Listed cottage built circa 1720. At the front is an unadopted track (think bridle way) and beyond this is a front garden about 90 feet in length and about 50 feet at its widest. <br /><br />I plan to put in a wooden summer house about 14ft by 10ft which would be 50% surrounded by bushes and barely visible from any of the houses. It would be hidden from the main road due to the small matter of a 12 foot high hedge along the entire length of the garden. It would be a good 50 feet or so from the main road (not the bridle way).<br /><br />The LA are insisting on a full planning application due to the proposed summer house being within the curtilage of the house (which was listed I believe in the 1950's or 1960's). <br /><br />What would your thoughts be? I note the regulations changed in 2008, not sure if they have changed again since.<br /><br />Thank you in advanceAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-59865033487161062022018-03-22T15:25:57.730+00:002018-03-22T15:25:57.730+00:00The answer to yesterday's enquiry from my anon...The answer to yesterday's enquiry from my anonymous correspondent is - “Yes, several!”<br /><br />This is therefore a matter on which we could only advise on the basis of full professional instructions. <br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-87758196306000805142018-03-21T15:14:58.826+00:002018-03-21T15:14:58.826+00:00I have owned land with an agricultural designation...I have owned land with an agricultural designation for just over 10 years and have continuously and demonstrably used this land as an extension to my garden for this time and now wish to invoke the 10-year rule as I wish to place a Yurt on the land for personal use and rental purposes (a great deal easier if it is designated as garden rather than agricultural land!). My property is Grade 2 listed. Are there any impediments to me invoking this rule?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-19450425242168171512018-03-15T17:46:59.940+00:002018-03-15T17:46:59.940+00:00The actual identification of the precise extent of...The actual identification of the precise extent of the domestic curtilage of a house is always a question of fact. That having been said, the curtilage of any building can very easily be extended (provided that this extension falls wholly within the existing planning unit). The essential point is that the area in question must serve the property in some useful and necessary way. As things stand, an area outside the existing garden fence might not be seen as part of the domestic curtilage, in view of the fact that (as I understand it) this area does not form part of one enclosure around the house, by reason of the fact that it lies outside the present garden fence.<br /><br />I am not confident that one could necessarily extend the curtilage by removing the existing garden fence and then immediately erect a new garden fence as permitted development under Part 2, Class A in the Second Schedule to the General Permitted Development Order (which, because it abuts the highway, must be no more than 1 metre in height). I think one would need to review the judgment in <i>Sumption v Greenwich LBC</i> [2007] EWHC 2776 (Admin) in order to reach a view on this.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-86185988723128128682018-03-14T12:36:42.263+00:002018-03-14T12:36:42.263+00:00Hi We are quite confused as to the meaning of curt...Hi We are quite confused as to the meaning of curtilage even after searching the internet Our problem is We applied for planning to move our 6ft garden fence up to the boundary marked on our deeds This would have enclosed 5ft of land that is currently situated on the other side of the fence (that locals use as a dog toilet) next to a road that leads into a small Close behind our property. Planning was refused on the grounds that a 6ft fence would obstruct the view of drivers coming out of the close. We have been informed that we would not need planning permission to errect a 3ft fence next to the road as long as the land comes under the curtilage of our house Does this land come under the curtilage of our property Our deeds show the boundary of our property is right up to the kerb but we are still unsure about the curtilage Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-63835497071107852222018-03-06T21:48:25.574+00:002018-03-06T21:48:25.574+00:00Thank you so much for your clear reply - very much...Thank you so much for your clear reply - very much appreciated and we will go down the CLEUD route, as the LA have suggested. <br />PS due to your patient repetition in this blog, I feel confident that I do have an understanding of the difference between curtilage and planning unit - so, thank you - I thought you should know that your pains are appreciated! (In our situation there is no PD involved so the area that may or may not be curtilage is not being questioned - we just want to be free to continue using our whole garden as.. garden. )Evahttps://www.blogger.com/profile/10563975937044685819noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-51765935529869765262018-03-06T09:43:38.515+00:002018-03-06T09:43:38.515+00:00As I have been at pains to point out, the concept ...As I have been at pains to point out, the concept of “curtilage” is quite separate and distinct from the identity of the planning unit (although on a small urban plot the two may well coincide). A change of use can only be identified by reference to the planning unit as a whole. Identifying the extent of the planning unit is therefore essential in order to determine whether a material change of use may have taken place.<br /><br />Where there is doubt or a dispute about the extent of a planning unit, an application for a Lawful Development Certificate may be the best way to resolve it.<br /><br />These issues are explained in detail in my second book, <i><b>The Essential Guide to the Use of Land and Buildings under the Planning Acts</b></i>. <i>Part 2.1</i> of <i>Chapter 2</i> explains “the planning unit” in detail, and <i>Chapter 20</i> contains a comprehensive explanation of Lawful Development Certificates and the procedures involved in submitting and processing an LDC application. (Appeals against the refusal of an LDC are then explained in detail in <i>Chapter 21</i>.) <br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-37057375040272186852018-03-05T22:46:56.854+00:002018-03-05T22:46:56.854+00:00Thank you for your blog and the interesting commen...Thank you for your blog and the interesting comments and replies - reading through has helped to clarify my question , but I am still unsure as to the answer I need:<br /><br />In a dispute about the extent of the planning unit for a detached house set in several acres of grounds - is the question of the planning unit legally separate to the fact a material change of use (of the land, agricultural to domestic) has occured? <br /><br />The LA say a CLEUD is the only way to enable them to recognise the larger planning unit. Is the planning unit based solely on the current situation (ie currently no functional or physical separation from the unit of occupation, all the land was purchased together originally and the house built in 1920s) , or does it need to be proved >10 yrs, as for material change of use from agricultural to residential C3? <br /><br />I am aware that even if the planning unit disagreement could be solved without applying for a CLEUD ,the LA could then choose to enforce against the material change of use and we would then have to apply for a CLEUD anyway). <br /><br />Would be v interested in your reply. Evahttps://www.blogger.com/profile/10563975937044685819noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-28945789173309273172018-01-16T18:03:30.318+00:002018-01-16T18:03:30.318+00:00I don’t think I can usefully add anything to what ...I don’t think I can usefully add anything to what I said in response to Alison Wunderland’s initial query.<br /><br />I confirm that both of my books, including the recent one, are available from Amazon, although the poor old author doesn’t get much money from sales through that outlet, and I would much prefer purchasers to buy the book from an orthodox book shop, or direct from the publishers (or, even better, via my blog!)<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-87759973294228030852018-01-16T17:15:02.419+00:002018-01-16T17:15:02.419+00:00Thank you, Martin, useful, but in the planning act...Thank you, Martin, useful, but in the planning act on permitted development not requiring planning permission and with regard to solar PV and other alternative energy projects, 'grounds of a house' are also mentioned as well as curtilage. This brings up a debatable argument as to size of grounds, for example Burleigh House near Stamford may have grounds of several 100 acres, so where does the definition of 'grounds' compare with that of 'curtilage'? Would it be fair to say that if a house is purchased to include an attached parcel of land as one complete lot that this would be a 'house and grounds'? The other problem is that the village envelope runs between the paddock and the house and outbuildings, this also places the paddock outside the conservation area, the solar PV could not be sited within the village envelope without being a visual impairment to the village and neighbours so siting them in the paddock is the best option. Can I get your book on Amazon?Alison Wunderlandhttps://www.blogger.com/profile/12639480524108015013noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-18400738024446765602018-01-08T16:27:41.886+00:002018-01-08T16:27:41.886+00:00I can’t agree with Alison Wunderland’s comment. W...I can’t agree with Alison Wunderland’s comment. Whilst there is a clear case for a proper legislative definition of ‘curtilage’, the judicial authorities on the subject are pretty clear. There is nothing quirky or arbitrary about them (with the possible exception of <i>Calderdale</i>).<br /><br />In the scenario envisaged by Alison, I doubt whether the whole of a 3.5 acre site could ever qualify as ‘curtilage’. A paddock or other ground not forming part of the formal gardens (and/or vegetable plot) near the house is unlikely to be seen as forming part of the curtilage. Cases like <i>Collins</i> and <i>McAlpine</i> spring to mind as practical examples.<br /><br />For a full explanation, see <i>Part 2.2</i> of <i>Chapter 2</i> in my recent book, <i><b>The Essential Guide to the Use of Land and Buildings under the Planning Acts</b></i> (on pages 21 to 32). <br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-86634694978877685302018-01-06T20:45:11.892+00:002018-01-06T20:45:11.892+00:00It seems to me that such definitions are founded u...It seems to me that such definitions are founded upon a judge's discretion. Consider a property bought at auction including a reasonably sized detached house being so close to a road as to have no front garden. Included in the sale are brick and stone built stables and garage, a stone barn large enough to be converted into s dwelling, and grounds approximately 3.5 acres bounded by hedges. The property was specifically purchased for the owners children to enjoy for horses and other outdoor activities. 40 years later the same owners of the entire property installed a solar array about 150 metres away from the main house and concealed from the rest of the village behind a thick hedge.<br />I propose that as the entire property was sold and purchased as a whole, that the paddock remains within the curtilage of the house and therefore within the current right of development. Views will be most welcome.Alison Wunderlandhttps://www.blogger.com/profile/12639480524108015013noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-49284468243249764432017-11-23T09:22:09.768+00:002017-11-23T09:22:09.768+00:00The only further comment that I would make is that...The only further comment that I would make is that the plan that counts is the approved site plan that accompanied the planning application for the development, and which now forms part of (or must be read with) the planning permission. The conveyancing / Land Registry plans may coincide with the site plan (but they may not; hence the need to check). As I observed in my previous comment, the planning permission really does need to be checked, both with regard to the approved site plan and also in order to see what conditions were attached to that permission. (Again, it is the conditions in the planning permission that are relevant in determining the position for planning purposes. The covenants in the title deeds may not necessarily coincide with the conditions attached to the planning permission.) The planning permission should be accessible online on the Council's website.Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-50346685574324983472017-11-22T19:23:49.916+00:002017-11-22T19:23:49.916+00:00Thanks Martin, the buffer is within the red line o...Thanks Martin, the buffer is within the red line on the conveyancing plan and also within the red line marking my plot with land registry. The conditions say’s<br /><br />‘and maintain repair and rebuild as necessary any fences constructed by the transferor to divide or screen the property from land which does not form part of the curtilage of any neighbouring dwelling house’<br /><br />I guess the question is the post and rail the curtilage mark or the inner fence, if the former then do I have an issue?<br /><br />I have requested clarity from the house builder again and planning, even though both said I could remove the inner fence previously!<br /><br />Many thanks for the response by the way.Anonymoushttps://www.blogger.com/profile/16598160963990963394noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-62835275385338602772017-11-22T11:56:19.658+00:002017-11-22T11:56:19.658+00:00The answer to Duncan McGregor’s query depends on t...The answer to Duncan McGregor’s query depends on the precise terms of the planning permission that authorised the development. Was the ‘extra’ land included within the red line or not? Were any conditions imposed on the planning permission for the development which refer to the ‘buffer’ area, or not?<br /><br />If the area in question fell outside the red line on the approved site plan, then it would appear that there may have been a material change of use which would require planning permission.<br /><br />Professional advice may be required if the position is unclear, or if advice is required as to the interpretation and practical application of any relevant condition relating to the area in question (including any condition that referred to the erection, removal or maintenance of any fences).<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.com