An appellant contesting a council’s refusal to grant a certificate of lawful use for the use of land at his house near Bristol as a domestic garden has found himself dealing with a matter which can often fox local planning authorities (DCS Number 400-018-126). A previous Blog How many times?! gives just one example of a council having got it wrong.
Helpfully, the inspector identified the problem and set out the case law, pointing out that it was necessary to consider whether or not planning permission for the change of use was in fact needed. She recorded that section 55(d) of the Act provides that the use of land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such does not constitute development. Therefore, if the appeal land lay within the curtilage of the house its use as a domestic garden did not require planning permission and so was lawful.
The inspector explained that in the absence of any statutory or authoritative definition of the term “curtilage”, the Court of Appeal held in Dyer v Dorset CC  that the term bears its restricted and established meaning connoting a small area forming part and parcel with the house or building which it contained, or to which it was attached. The Oxford English Dictionary definition was endorsed by the court as adequate for most present day purposes, namely: A small court, yard, garth, or piece of ground attached to a dwellinghouse, and forming one enclosure with it, or so regarded by the law; the area attached to and containing a dwellinghouse and its outbuildings. The relevant authorities, the inspector continued, were later reviewed by the High Court in McAlpine v SSE  , and three identifiable characteristics of curtilage were defined: firstly, it is confined to a small area about a building; secondly, it must be intimately associated with land that is undoubtedly within the curtilage; and thirdly, physical enclosure is not necessary, but the land needs to be regarded in law as part of one enclosure with the house.
Accordingly, before going on to determine the appeal, the inspector explained that the terms “curtilage” and “domestic garden” are not interchangeable; curtilage defines an area of land in relation to a building, and not a use of land.
Further case law on this subject, together with relevant appeal decisions, can be found at section 4.3444 of DCP Online.