In a recent post, Court cases on curtilage, we shared a handy paragraph from an appeal decision which set out the leading cases on the identification of ‘curtilage’: Dyer v Dorset CC ; McAlpine v Secretary of State for the Environment ; and Secretary of State for the Environment, Transport, and the Regions v Skerritts of Nottingham .
If you just can’t get enough of court cases on the identification of curtilage you might be interested in a further appeal decision in which the inspector provides a comprehensive review of the subject (DCS Number 400-026-283). As set out at 12.912 of DCP Online the definition of this term is particularly important as land which is held to be within the curtilage of a dwellinghouse enjoys certain permitted development rights.
The inspector in 400-026-283 set out, firstly, that the GPDO does not attempt to define the term ‘curtilage’ and there is no other all-encompassing, authoritative definition. He noted that the Technical Guidance on permitted development rights for householders explains that some terms are not defined in the Order but in the case of ‘curtilage’ it is understood to mean “land which forms part and parcel with the house. Usually it is the area of land within which the house sits, or to which it is attached, such as the garden, but for some houses, especially in the case of properties with large grounds, it may be a smaller area.” He observed that as guidance only this does not have the force of law but represents government advice on how the GPDO is intended to be interpreted. He also made the point that the term is used in different contexts within the planning system, and this can result in varying interpretations.
The inspector stated that the courts have addressed the meaning of ‘curtilage’ most frequently in relation to listed buildings, the earliest one being the Court of Appeal decision in Methuen-Campbell v Walters . In that case it was held that for land to fall within the curtilage of a building, it must be intimately associated with the building to support the conclusion that it forms part and parcel of the building. It was possible that this may extend to ancillary buildings, structures or areas, such as outhouses, a garage, a driveway and so forth. A curtilage may consist of more than one parcel of land, need not have been conveyed or demised together and might even fall within another, broader curtilage. Dyer v Dorset CC , he continued, provides authority that the term ‘curtilage’ bears its restricted and established meaning, connoting a small area forming part and parcel with the house or building which it contains or to which it is attached. Subsequently, in McAlpine v SSE  it was held that “there is no rigid definition to a curtilage”, but that: it is a feature constrained to a small area about a building; apparently in “intimate association” with such building; and no physical enclosure is necessary to define it, “but the considered land must be part of the enclosure with the house”.
The inspector noted that in the case before him the council relied on the inspector’s reasoning in R (oao Sumption) v Greenwich LBC  that the smallness of land was a relative factor as a matter of fact and degree, but pointed out that in that case the inspector’s decision was in fact quashed. Nonetheless, he considered that the case is noteworthy as authority that a lack of historic connection between the land and a listed building can be a relevant fact but is not determinative; it is necessary to determine the status of the land from the factual situation existing at the date of the application. On the facts in Sumption, the curtilage extended over a “recently expanded garden” where the land was clearly capable of such use, some work had been done to it, there was access to it and it was part of the land attached to the building and being enjoyed with it. In those circumstances the historical lack of connection was not capable of carrying weight. The court also made reference, he noted, to the Oxford English Dictionary definition of ‘curtilage’ as “an area of land attached to a house and forming one enclosure with it”.
Other case law tackling the issue of ‘curtilage’, the inspector recorded, in chronological order, is Sinclair-Lockhart’s Trustees v Central Land Board  in which it was found that “The ground used for the comfortable enjoyment of a house or other building may be regarded as being within the curtilage of the house or building” and “It is enough that it serves the purpose of the house or building in some necessary or reasonably useful way.” The Court of Appeal in Skerritts of Nottingham Ltd v SSETR (No. 1)  described the decision in Dyer as plainly correct, though commenting that the “court went further than it was necessary to go in expressing the view that the curtilage of a building must always be small, or that the notion of smallness is inherent in the expression.” The High Court in Lowe v First Secretary of State  concluded that “The expression ‘curtilage’ is a question of fact and degree. It connotes a building or piece of land attached to a dwelling house and forming one enclosure with it. It is not restricted in size, but it must fairly be described as being part of the enclosure of the house to which it refers. It may include stables and other outbuildings, and certainly includes a garden, whether walled or not. It might include accommodation land such as a small paddock close to the house.”
The concept of ‘curtilage’ was more recently reviewed by the High Court in Burford v SSCLG , the inspector continued, where it was noted that the use of land as incidental to the enjoyment of a dwelling house is not determinative of the land being curtilage. He noted that the case reaffirmed the criteria laid down in Attorney General ex rel. Sutcliffe and Others v Calderdale Borough Council  for identifying curtilage, namely: (1) the physical layout of the [listed] building and the structure; (2) their ownership, past and present; (3) their use or function, past and present.
So what have we learned after toiling through all of that? The inspector tells us: “Having regard to all the authorities it is apparent that whether land comprises ‘curtilage’ is a question of fact and degree to be considered on a case by case basis and thus primarily a matter for the decision maker.”