Considering Curtilage

Alongside annexes, 'curtilages' are another peculiarity of planning. A recent Planning Inspectorate case (Holdsworth Croft, dated 12 June 2019, reference APP/A4710/X/18/3218370) has shone some light on this, in the context of permitted development.

The case was an appeal under section 195 of the Town and Country Planning Act 1990, against Calderdale Metropolitan Borough Council's refusal to grant a certificate of lawful use or development ("LDC"). The proposed development was a log cabin on an existing concrete base, intended to provide ancillary living accommodation. The Applicant was trying to establish that it was permitted development. Because the Applicant was seeking a LDC the appeal wasn't concerned with the planning merits (or otherwise) of the log cabin, but whether 'on the balance of probabilities' the development was lawful at the time of the application. The basis of the alleged lawfulness was the Town and Country Planning (General Permitted Development)(England) Order 2015. This provides that any building incidental to the enjoyment of a dwelling house may be permitted development if it falls within the curtilage of that dwelling house. The Applicant was seeking to prove that the log cabin was such a development.

The central issue was therefore whether the log cabin site formed part of the residential curtilage of the Applicant's main dwelling house (No 8 Holdsworth Farm). In reaching a decision the Inspector considered a) the physical layout of the proposal and the site, b) the ownership (past and present); and c) the use and function (past and present). Some of the conclusions turned on the facts of the case, but the following points are interesting to note:

• The fact that the site had previously been used for residential purposes did not automatically mean it still lay within the curtilage of main dwelling. This was 'a matter of fact and degree', and following a site visit, the Inspector concluded that the concrete base was not physically a part of the dwelling house.
• Just because the appeal site was in the same ownership as the dwelling house, it was not necessarily within the curtilage of the dwelling house. Rather the physical nature and relationship of the two parts of the land outweighed any findings in relation to ownership and whether or not the concrete base has been used for residential purposes in the past. In this case the concrete base did not form part of the same planning unit as the dwelling house.
• Considering past and present function, the fact that the concrete base was lawful as a base for a cowshed also reinforced the Inspector's view that the land was not - as a matter of fact and degree - part of the curtilage of the dwelling house. In the past, the land upon which the concrete base is positioned had been used for agricultural purposes. There was no evidence (or planning permissions) to suggest a change of use of the appeal land that would indicate it had become part of the residential curtilage.

The Inspector concluded that the Applicant has not provided any information or evidence which showed conclusively that the proposed use of the land, as an extension to the land at Noas lawful on the date of the application. The appeal was thus dismissed and a Lawful Development Certificate not issued.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.