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Definition of “residential curtilage” clarified by High Court

Posted on 11th July 2017 in Planning and Licensing

Posted by

Amy Cater

Partner and Solicitor
Definition of “residential curtilage” clarified by High Court

The case involved a landowner who had been served with an enforcement notice for erecting a building on land which he claimed to be residential curtilage. 

The landowner sought to rely on permitted development rights (Class E of Schedule 2 of the General Permitted Development Order 2015) for the building and argued that the land was within the curtilage of the main house as evidenced by the fact that the Local Planning Authority had previously granted a certificate of lawfulness for the use of that land as a garden incidental to the enjoyment of the main dwellinghouse.   The Planning Inspector upheld the enforcement notice and the landowner appealed.  The High Court dismissed the appeal, accepting the Inspector’s decision that the land was not curtilage.

The word curtilage is not defined in statute.  However, there are some important cases which discuss curtilage, and the Judge in one of the leading cases (Dyer) described it as “an area of land attached to a house and forming one enclosure with it”.   The High Court in this case confirmed that whether or not land is within the curtilage of a dwellinghouse will be a question of fact and degree each time for the decision maker (Local Planning Authority or Planning Inspector).  When determining what constitutes curtilage the decision maker has to identify (i) the physical layout (ii) ownership, past and present and (iii) use or function, past and present.    Whilst the function of the land is relevant to the question of curtilage, it is not determinative.  The fact that the land in question had been used for domestic purposes for more than 10 years did not mean that it was residential curtilage.

This case confirms the principle that curtilage is not a land use but rather it is a description of land attached to a building.

 

See: Burford v Secretary of State for Communities and Local Government and Test Valley Borough Council [2017] EWHC 1493 (Admin)

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