The ‘Basic’ Definition of Curtilage

Planning Consultant - Chris Scott
Hi, I’m Chris,
I hold an MA in Planning and work as a Planning Consultant

So let’s start off with the most basic understanding of your properties curtilage, that it is the area of land immediately around the property. It can include associated outbuildings but it is separate from any open fields beyond. When it comes to planning permission and permitted development rights, the determined size of your properties curtilage can have significant impacts on your proposals.

The determined size of your curtilage could have impacts on your proposals for outbuildings within your garden. For instance garden sheds, summer houses or even horse stables in your garden

Domestic Curtilage and Permitted Development Rights

You may already be aware that with permitted development rights (PD) you can construct extensions and outbuildings under certain criteria. With regards to the properties curtilage, there is a specific condition that you cannot develop over 50% of the curtilage of the original dwelling house, excluding the ground area of the original house. Therefore how the local authority defines your curtilage is very important when building under PD rights.

The Use of Old Ordnance Survey (OS) Maps

So the original dwelling is determined on its footprint as of July 1st 1948. If your property was constructed after this date it is the footprint of how the property was first built. Determining the size of the original dwellings curtilage can be easier said than done. However, a common tool which I use and which your local authority will use is to review old OS maps. With regards to the original curtilage of the dwelling, an old OS map may be of assistance. It may provide evidence to reasonably conclude the size of the original properties curtilage. 

Property Curtilage Size
A screenshot of the curtilage of my own property in 1925 – Image:

The properties Planning Unit vs its Curtilage

Now, talking about this topic can get very confusing and very technical. That’s not what I want these posts to be about. I want the ‘average’ person to get some idea of the challenges and issues that the planning system presents. My aim is to express how important the ‘finer details’ are to a developments success or failure.

It’s often easier to use examples to explain a topic. Therefore below I’m going to provide a brief summary of a legal case from 2017 around the interpretation of a properties curtilage. You can read a far more in-depth review on the excellent blog by Martin Goodall

Burford v Secretary of State for Communities and Local Government and Test Valley Borough Council (2017)

Setting the Scene

In this case, the appellant had constructed an outbuilding on land which they interpreted to be within the curtilage of their dwelling. They had a Lawful Development Certificate (LDC) from their local authority to confirm that the land in question could be used for purposes incidental to the enjoyment of their dwelling-house. During the case, all parties agreed the land in question was part of the same ‘planning unit’ as the dwelling. Furthermore, the land could be used for purposes incidental to the dwelling.

On first impressions, the development would appear to be in compliance with the requirements of the General Permitted Development Order (GDPO). However, it was not agreed that the land on which the outbuilding was located was part of the original dwellings curtilage.

Not Part of the Original Dwellings Curtilage

The judge determined that the land in question was not part of the curtilage of the original dwelling. This was despite the Lawful Development Certificate for incidental residential use. The land in question appeared physically separate. Furthermore, prior to October 2014 it also appeared to be in use as a paddock. Therefore the judge determined that the outbuilding was therefore not lawful development under permitted development rights. 

Curtilage Case Conclusions

So the case above makes it clear that just because you may believe ( or even have a LDC) for land to be used for residential purposes, it is not necessarily determined to be part of the curtilage of the original dwelling. It also shows the risks of proceeding with construction before the lawful status of development is established.

As stated on Martin’s blog, the appellant should have submitted a LDC for the building itself. During that application, the local authority would confirm if they regarded the location as part of the original curtilage of the dwelling. If the applicant disagreed then they could have appealed against the refusal of the LDC. This case is also a good example of where pre-application planning advice from the local planning authority could have been useful before proceeding with development.

Planning Help Establishing your Properties Curtilage

If you wish to submit a planning application or lawful development certificate and you have questions around the size of the curtilage of your property please get in touch. We can discuss if the size of your curtilage is likely to be disputed by your local planning authority. We can also discuss the available evidence to reasonably conclude the size of the curtilage of your original dwelling. 🙂