tag:blogger.com,1999:blog-8170718846507476773.post4910064183285133726..comments2022-12-13T14:45:12.233+00:00Comments on Martin Goodall's Planning Law Blog: Court considers curtilageMartin H Goodallhttp://www.blogger.com/profile/07079479984296674469noreply@blogger.comBlogger20125tag:blogger.com,1999:blog-8170718846507476773.post-90600443682665654212019-12-12T18:00:44.211+00:002019-12-12T18:00:44.211+00:00On checking my own records the other day, I realis...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 <i>Property and Compensation Reports</i> (although, unconnected with this, I am currently unable to access this service myself – our IT people are working on it).<br /><br />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.<br /><br />Incidentally, I have recently written another blog post on 'curtilage', and readers may find it useful to refer to this.Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-17686101865050903222019-12-12T17:00:50.735+00:002019-12-12T17:00:50.735+00:00I'm having problem locating a copy of Sinclair...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, Anonymoushttps://www.blogger.com/profile/05925658475019962995noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-73929603877028260592019-04-09T17:07:24.319+01:002019-04-09T17:07:24.319+01:00In answer to the points raised:
(i) Section 1(5)(...In answer to the points raised:<br /><br />(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 <i>since before 1 July 1948</i>.<br /><br />(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 <i>Burdle</i>). Land in one planning unit cannot be within the curtilage of a building on another planning unit (see <i>Westminster City Council v British Waterways Board</i>, and also <i>Sinclair-Lockhart’s Trustees v Central Land Board</i>).<br /><br />(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 <i>functional</i> 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 <i>Sinclair-Lockhart’s Trustees</i> again, and also <i>R (Egerton) v Taunton Deane BC</i>). Furthermore, it must also have been within one enclosure with the listed building (see <i>Dyer v Dorset CC</i>, also <i>Burford v SSCLG</i>).<br /><br />(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 <i>Sinclair-Lockhart’s Trustees</i>, it almost certainly will be subsidiary. I suspect that what Landman82 has in mind is the rule applying to any object or structure <i>fixed</i> to the building, which is thereby listed under section 1(5)(a). In this case, <i>Debenhams plc v Westminster LBC</i> established that to be listed under section 1(5)(a) the attached structure had to be subordinate or subsidiary to the listed building.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-88960417997882482512019-04-09T14:49:23.061+01:002019-04-09T14:49:23.061+01:00Martin, I note nearly two years have elapsed since...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? <br /><br />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:<br /><br />A structure is a curtilage structure if – and only if – it:<br />(i) was built before 1948; and<br />(ii) was in the same ownership as the principal listed building at the date of listing; and<br />(iii) was in the curtilage of the principal listed building; and<br />(iv) was ancillary to the principal listed building.<br /><br />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?<br /><br />Grateful for any clarity on this particular point that you can give.Landman82noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-19625350685470557102017-12-15T12:48:56.529+00:002017-12-15T12:48:56.529+00:00[To continue.......]
It is on this basis that I d...[To continue.......]<br /><br />It is on this basis that I drew attention in the blog post above, and have reiterated in my latest book, in <i>paragraph 2.2.1</i> on page 23 (and again in <i>paragraph 2.2.2</i> 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 <i>Sinclair-Lockhart’s Trustees</i>, 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.<br /><br />Bearing that last point in mind, I am not suggesting that, <i>as a matter of law</i>, 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 <i>Collins</i>) 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.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-17448815457517477092017-12-15T12:47:48.403+00:002017-12-15T12:47:48.403+00:00I am grateful to my colleague, Ben Garbett, for th...I am grateful to my colleague, Ben Garbett, for this comment. In the case that was before the court in <i>Burford</i>, 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 <i>Collins v SSE</i> [1989] P.L.R. 30 and <i>McAlpine v SSE</i> [1994] E.G.C.S. 189. In <i>Collins</i> 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 <i>Sinclair-Lockhart’s Trustees</i>.) In <i>Burford</i>, the court could have dismissed the challenge to the Inspector’s appeal decision on this ground alone, without resort to other cases such as <i>Dyer</i> and <i>Skerritts of Nottingham</i>.<br /><br />As I have pointed out, the Court of Appeal in <i>Skerritts</i> criticised the adoption by the court in <i>Dyer</i> 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 <i>Dyer</i> 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”.<br /><br />In <i>Burford</i>, Supperstone J also drew attention to the words of Sir Richard Tucker in <i>Lowe v Secretary of State</i> [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 <i>Dyer v Dorset CC</i>, 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 <i>Dyer</i> and <i>Lowe</i> cited above).<br /><br />[It seems that there is now a limit on the length of comments (!), so I will have to continue in a second comment.]Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-25531912641921190782017-12-15T10:10:26.703+00:002017-12-15T10:10:26.703+00:00As you have consistently highlighted, definition o...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.Ben Garbettnoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-73630514920728512512017-09-29T15:33:10.098+01:002017-09-29T15:33:10.098+01:00If you wish to confirm that the works in question ...If you wish to confirm that the works in question do not require Listed Building Consent (because this building is <i>not</i> ‘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 <i>Sinclair-Lockhart’s Trustees v Central Land Board </i> (1950) 1 P. & C.R. 195, <i> R (Egerton) v Taunton Deane BC</i> [2008] EWHC 2752 (Admin) and also <i> Burford v SSCLG</i> [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.<br /><br />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.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-74117694598094454432017-09-29T14:53:17.123+01:002017-09-29T14:53:17.123+01:00I have read this (and several other related) artic...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.John Davisnoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-40483242695339799672017-09-12T18:35:33.307+01:002017-09-12T18:35:33.307+01:00Martin,I thank you again for you comments on this ...Martin,I thank you again for you comments on this point worryingly not all planners seem to understand this point!<br />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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-56060794299954072052017-09-11T12:46:30.218+01:002017-09-11T12:46:30.218+01:00While doing house-keeping on the computer, I have ...While doing house-keeping on the computer, I have just re-read the original query of 8 September.<br /><br />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 <i>at that time</i>and 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.<br /><br />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 <i>added</i> to the planning unit at any time <i>after</i> 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.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-59841490483754032412017-09-11T12:25:03.907+01:002017-09-11T12:25:03.907+01:00An unauthorised change of use remains potentially ...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 Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-54088935706327083902017-09-10T17:43:53.140+01:002017-09-10T17:43:53.140+01:00I thank you Martin for your prompt comment (8 Sept...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.<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-7001504365820930322017-09-08T17:44:38.299+01:002017-09-08T17:44:38.299+01:00In answer to my anonymous correspondent today, my ...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).Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-79485751319691676112017-09-08T15:43:20.881+01:002017-09-08T15:43:20.881+01:00If one obtains a lawful use certificate after 4 ye...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.<br />Thanks in advance.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-25667144467160040892017-08-02T10:46:23.856+01:002017-08-02T10:46:23.856+01:00Yes. There is no distinction between ‘domestic cu...Yes. There is no distinction between ‘domestic curtilage’ and ‘residential curtilage’. They are just different ways of describing the same thing.<br /><br />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 <i>Sinclair-Lockhart</i> test, and also with the “single enclosure” test (as per <i>Dyer</i>, and now <i>Burford</i>).<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-68144169124262188532017-08-02T10:17:50.603+01:002017-08-02T10:17:50.603+01:00I follow your posts relating to curtilage with int...I follow your posts relating to curtilage with interest and they have helped significantly with my understanding of this area of planning law.<br /><br />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?<br /><br />Many thanks.Matthew Rnoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-32359560344151919462017-08-01T19:07:05.953+01:002017-08-01T19:07:05.953+01:00In answer to Richard W’s comment of 21 July, what ...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 <i>Burdle</i>) and is lawfully used as such.<br /><br />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 <i>Sinclair-Lockhart</i> test, bearing in mind the “single enclosure” test proposed by <i>Dyer v Dorset CC</i> (as now applied in <i>Burford</i>).<br /><br />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’.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-37027305588229723322017-07-23T18:40:47.830+01:002017-07-23T18:40:47.830+01:00I have also had considerable reservations about Ca...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. <br />Thank you as always for your attention to detail.David Forbesnoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-73513466980011164382017-07-21T14:13:31.813+01:002017-07-21T14:13:31.813+01:00I imagine the unsuccessful claimants could simply ...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.<br /><br />None of this would normally require PP (assuming no restrictive conditions etc).<br /><br />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.<br /><br />I suspect this is a problem that won't go away until the GPDO is amended to remove any definition to curtilage but...Richard Wnoreply@blogger.com