WHAT IS THE DEFINITION OF DOMESTIC CURTILAGE?
Whilst we deal with a great many planning applications, one of the most interesting issues we have come across over the years is one that should actually be relatively simple - how do we define the 'curtilage' of a building? Well, when we answer that today we always say 'with caution..'
Whilst our cousins across the sea in the USA have given quite some consideration to this topic (pertaining mainly to the fact that in many states they have implicit and extensive rights to defend their own homes and consequently their curtilage) in the UK we have perhaps not had need to consider a legal definition so rigorously.
The generic dictionary definition of curtilage is quite simple when describing the word:
"the enclosed area of land adjacent to a dwelling house"
However, for our purposes here perhaps a better fundamental definition can be found in The Oxford Dictionary of Law. Not only does this give reference to the difference between UK and American law, however it specifically mentions the word being important to planning issues:
"A piece of ground lying immediately next to and belonging to a dwelling, typically a courtyard or garden with any outbuildings etc"
In the USA, curtilage is an important concept in those parts of the common law relating to privacy, trespass and search and seizure; however in the UK it is now cited chiefly in local planning rules and the listed buildings legislation.
The reality is, that the definition of domestic curtilage in planning terms is far from simple (and this can be the cause of so much confusion in planning departments) - especially when many local authorities would appear to have an innate desire to limit and restrict its use.
The definition of curtilage in planning terms has been considered many times through planning appeals and the high court alike. Most recently in Burford v SSCLG  EWHC 1493 (Admin) - in their judgement (given on 23 June 2017) the High Court was once again asked to take consideration of this tenuous definition - and once again the courts assessment of the definition of 'curtilage' was largely consistent with rulings seen previously...
In past cases, three criteria for identifying curtilage were laid down by the Court of Appeal in Sutcliffe v Calderdale BC in 1982, These consisted of:
- 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.
To this end we see that a simplified, or more simply implied, definition is unlikely to be forthcoming in the near future.
What is clear however, is that just because an area is acknowledged as being 'garden' or 'land used in conjunction with the private enjoyment of a dwelling', this does not automatically make that area 'curtilage'. Vis-a-vis, we can also say that just because curtilage is prescribed as the area immediately adjacent to a dwelling, this does not mean that its size should be considered de minimis.
Indeed, whilst some dwellings have very limited curtilage space, case law has shown that curtilage can be extensive. If we consider McAlpine v Secretary of State (1995) we can see that the curtilage in this case was deemed to be circa 12 acres! All in all then, we must take the view that each case must be treated on its own merits, and when defining domestic curtilage, it must be done on a basis of law as opposed to a one-fit-for-all definition.
There is one legal definition of curtilage that is worth bearing in mind at this point, where curtilage is in fact defined under planning statute. If we consider the GPDO 2015 we can see the definition arising when considering the conversion of redundant agricultural buildings into residential dwellings. The definition states:
“curtilage” means, for the purposes of Class Q, R or S only— (a) the piece of land, whether enclosed or unenclosed, immediately beside or around the agricultural building, closely associated with and serving the purposes of the agricultural building, or (b) an area of land immediately beside or around the agricultural building no larger than the land area occupied by the agricultural building, whichever is the lesser;
It should be noted here that the highlighted text clearly states that this definition is only to be used in this very specific instance, that is for Class Q, R or S developments only. If we consider this against the 12 acre figure previously mentioned from McAlpine, this would seem somewhat limited when weighed against one of the few technical definitions of curtilage that is actually listed in planning statute.
So, having stated that there is no easy way of trying to assess curtilage, let us begin the unenviable task of doing just that...
We can ascertain that curtilage is an area of land surrounding or attached to a dwelling house - and is typically described as the enclosed area of land normally enjoyed by the residents of the associated dwelling. Buildings other than dwellings also have a curtilage, but for the purposes here we will solely consider residential curtilage.
Numerous court cases have tested the legal definition over the years. From these cases, we can deduce that curtilage is a matter of fact and degree and therefore must be assessed on the merits and circumstances of each individual case. However it is fair to observe that the the land defined as curtilage is always enclosed (but may also contain within it further means of enclosure) and is always attached to the dwellinghouse with which it is associated.
Curtilage is a matter of fact and degree - which means that there is no fixed method of establishing what is and what is not curtilage - without assessing each case on its own unique merits. The way in which curtilage is established is through the interpretation of relevant legal precedent and case law.
- Change in location and size over time according to use
- Include paddocks or any other land 'useful to the domestic enjoyment of the occupants of the dwelling'
- Be used for 'agricultural' and 'horticultural' type purposes - provided that those activities are incidental to the enjoyment of the dwelling (e.g. a market garden used for self sufficiency, an orchard where the fruit is consumed solely by the occupiers).
It categorically cannot be:
- Separated or disconnected from the parent dwelling by a road or other means of shared or public access (e.g. a drive or footpath)
- In separate ownership to the associated dwelling (although it can be held under separate title)
- Be open, public or unenclosed land
- Be defined or restricted to an imaginary line on a plan or map
- Be restricted to a 'de minimis' area
- Be used for a non domestic purpose (E.g. for farming or other commercial activity)
We also have to consider how long the specific area has been in constant use domestic curtilage.
As curtilage is in some cases an ever changing or evolving area, this is again a somewhat contentious issue. We have on occasion been asked by Local Authorities to provide an affidavit stating that the land in question has been in its current use for in excess of 10 years prior to the application (10 years being the period in time that a Local Authority has in which to enforce against an unlawful change of use of land). As the definition of curtilage does not actually deal with 'land use' per-se, this is not something we overly approve of or believe is technically correct, however, if it appeases "the powers that be" and allows the case officer a cushion to issuing a certificate of lawful use, we would tend to follow that route if requested.
Curtilage is categorically NOT a 'use' in planning terms. In other words, a planning authority can not apply conditions or seek to define the 'use' of a piece of land as 'domestic curtilage'...