Residential curtilage

In plain English: Residential curtilage

As a recent High Court case involving a property near Stockbridge in Hampshire demonstrated, there is no legal definition of curtilage. The term is generally used to describe the land immediately surrounding a house or dwelling and can include any closely associated buildings or structures forming one enclosure with it, delineating a boundary within which a home owner can have a reasonable expectation of privacy.

However, as the case of Burford v Secretary of State for Communities and Local Government and Test Valley Borough Council highlighted, it's a matter for the court to decide what falls within the curtilage of a specific building, which is particularly important in the context of permitted development rights and listed buildings. 

When identifying a curtilage there are three important factors to consider: the physical layout, past and present ownership and the historical and existing use of the land. The Burford case concerned an area of land which was adjacent to a dwelling and had a Lawful Development Certificate confirming that it could be used for purposes incidental to the enjoyment of the dwelling. However, it was physically separated from the dwelling by hedges and fences.

Mr Burford was served an enforcement notice by the council for erecting a building on the land. He had assumed he was entitled to build under permitted development rights (Class E of Schedule 2 of the General Permitted Development Order 2015) and argued that the land was within the curtilage of the dwelling, as evidenced by the previously granted Certificate of Lawfulness for use of it as garden land.

But the Planning Inspector found that the land was not curtilage because it wasn't attached to the dwelling forming one enclosure with it and the building was consequently deemed unlawful. The landowner appealed the enforcement notice and the case was referred to the High Court. However, the judge dismissed the appeal, supporting the Planning Inspector’s decision that the physical separation meant it did not form part of the dwelling's curtilage.

The judge's ruling confirmed that identifying the extent of a curtilage is a matter of planning judgement and can only be challenged on the grounds of the Planning Inspector’s decision being unreasonable and also that the function of the land, while being relevant to the question of curtilage, was not determinative.

This case could have implications for anyone who is considering permitted development rights on land associated with a residential dwelling, or when determining which buildings fall within the curtilage of a listed building and are therefore defined as ‘curtilage listed’.

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