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05th July 2017

Meaning of residential curtilage clarified by High Court

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The Planning Court has recently considered the meaning of ‘residential curtilage’ in Burford v Secretary of State for Communities and Local Government and Test Valley Borough Council.

Defining the curtilage of a dwelling house is very important in the contexts of permitted development rights and listed buildings. There is no legal definition of curtilage and it is a matter for the court in each case to decide what falls within the curtilage of a particular building.

Three criteria for identifying curtilage were laid down by the Court of Appeal in Sutcliffe v Calderdale BC in 1982, namely the physical layout, the past and present ownership, and the past and present use and function of the land. In Burford, the judge confirmed that these are matters of planning judgement for the decision maker, and a decision can only be challenged on the grounds of being so unreasonable that no reasonable decision maker would reach the same decision.

The land in question in Burford was in common ownership with the dwelling house and had a Lawful Development Certificate confirming that it could be used for purposes incidental to the enjoyment of the dwelling house. It was physically separated from the rest of the land by hedges and fencing. Mr Burford argued that the building he had erected on the land was lawful under permitted development rights attached to the dwelling house. However the inspector found that the land was not curtilage because it was not attached to the dwelling house forming one enclosure with it. The building erected on the land was therefore unlawful. The judge confirmed that the planning inspector was entitled to make his finding, and that the function of the land, whilst being relevant to the question of curtilage, was not determinative. The inspector’s decision was therefore not unreasonable, and was upheld.

This case will be of interest to anyone considering exercising permitted development rights on land associated with a residential dwelling, or wanting to establish whether a structure is listed by virtue of being within the curtilage of a listed building. It demonstrates that use and function of land alone is not enough to determine whether it is curtilage.

For more information please contact Gemma Dudley on 01223 532747 or click here to email Gemma.