What Is the ‘Curtilage’ of a Dwelling in Planning Law?

In planning law, ‘curtilage’ refers to the land immediately associated with a dwellinghouse – the land around it that is so intimately connected so that, in law, it is treated as “part and parcel” of that house.

Not simply a ‘garden’, ‘yard’, or ‘grounds’ in a broad sense. Whether a particular piece of land is part of the curtilage depends on specific legal tests set by case law and the particular facts of each case. The concept has evolved through court decisions over many decades and has a slightly broader meaning in the context of listed buildings.

This is the first of a series of articles on the concept of domestic curtilage in planning law, focusing on the basics outside the listed building context.

The following principles flow from case law:

·   Physical proximity, layout, ownership (past and present), historical use, and how the land is presently used are all relevant considerations.

·   Size can be relevant, but a domestic curtilage is not necessarily small. For example, a sprawling manor house might have a larger curtilage (but a curtilage is unlikely to extend to a 100-acre park around the house, however grand that house might be)

·   Distance too can be relevant, even if not determinative. For example, a swimming pool located beyond the formal garden but within the large grounds might fall outside the curtilage because it is too far removed from the house. Distance can also erode the functional connection to the main house.

·   The relationship is functional as well as spatial. For example, ancillary buildings and structures such as garages, driveways, and gardens may fall within the curtilage if their use is clearly connected to the main house (or could be seen as an extension to the use of the main house).

Why is this concept relevant?

Many domestic permitted development rights are defined by reference to the curtilage of a dwelling. For example, if a planned outbuilding, pool, or extension projects onto land which isn’t in the curtilage of the main house, it may fall outside the scope of permitted development rights conferred by The Town and Country Planning (General Permitted Development) (England) Order 2015 (“GPDO 2015”) and require express planning permission.

Local planning authorities may issue enforcement notices for development carried out outside the curtilage of a dwelling, even years after the development was substantially completed.

Buyers may acquire property assuming certain works are lawful under permitted development rights, then later discover a feature is outside curtilage and requires retrospective permission or removal, with either option being time-consuming and costly.

This risk is increased by the new 10-year enforcement limitation period for operational development, introduced by the Levelling-Up and Regeneration Act 2023.

Practical takeaways for clients

The definition of curtilage is a technical and variable one depending on context, but it has many practical planning consequences. Whether land is inside or outside curtilage can determine whether a project is lawful under the GPDO 2015, whether permission is needed, or whether an existing feature is at risk of enforcement action. For property transactions or planned works, understanding curtilage is important to make sure the right steps and precautions are being taken.

The Planning & Licensing team at Tozers is on hand to provide you with advice so that you can have the peace of mind that your plan, project, or purchase complies with all the relevant planning requirements in force at any given time.

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