The High Court decision of Burford v Secretary of State for Communities and Local Government & Anor [2017] EWHC 1493 (Admin) reconfirms the legal test for determining the curtilage of a dwellinghouse. The Court clarified that lawful ‘residential’ use of adjoining land, though incidental to the enjoyment of a dwellinghouse, may not alone determine that such adjoining land is part of its curtilage.
The case concerned a statutory review of an inspector’s decision to dismiss an appeal of an enforcement notice issued by the council. The enforcement notice related to the construction of a building incidental to the enjoyment of the nearby dwellinghouse. Such incidental use of the building was not in dispute between the parties.
The issue in dispute was whether such building was within the curtilage of the dwellinghouse. Specifically, whether Class E of Schedule 2 of the General Permitted Development Order 2015 applied. Class E grants permission for, subject to exclusions, the erection of buildings within the curtilage of a dwellinghouse where such building is incidental to its enjoyment.
The building was located within land for which the council had issued a lawful development certificate for ‘residential use’. Such certificate had been issued following the decision of the council that such land for 10 years had been used for residential purposes incidental to the enjoyment of the associated dwellinghouse. The building was separately fenced and hedged from the dwellinghouse. The appellants argued that such certificate was determinative that such land was thereafter part of the curtilage of the main residential dwelling.
A secondary issue arose within the context of Class E, which limits the height of the eaves of the building to 2.5 metres, as to the point of ground level for such measurement. The building was constructed within a cut of sloping ground. The inspector had interpreted the measurement from the base level of the cut, as opposed to the sloping ground, which meant the building’s eaves exceeded the permitted height under Class E.
The curtilage of a building
Mr Justice Supperstone first reviewed the legal authority concerning the determination of the curtilage of a building and confirmed that there are 3 factors to be taken into account. Namely:
- the physical layout of building and attached land;
- the ownership, past and present; and
- their use or function, past and present.
In considering these factors, the following were cited as relevant:
- curtilage is not a planning land use question and may be separate to the planning unit(s);
- the curtilage of a building, within the context of the assessment of these 3 factors, is a matter of fact and degree for determination by the decision maker. The decision maker decides what reasonable weight is to be given to each factor (in the Wednesbury reasonable sense);
- there is no restriction as to size but it must fairly be described as being part of the enclosure for the house to which it refers (ie. the 2nd factor); and
- the relationship between the main dwelling and the land in question is relevant when considering their function and use (ie. the 3rd factor). It is however not determinative by itself.
In relation to the lawful development certificate as to the residential use of the adjoining land incidental to the dwellinghouse, Mr Justice Supperstone found that it was only determinative of the 3rd factor above. That is the use and function of the land. He confirmed that such certificate, arising from immunity of enforcement following 10 years use, did not consider the issue of curtilage. Therefore, the other two factors still required assessment.
The Decision
Mr Justice Supperstone decided that the inspector had applied the correct legal test and that it was for him to weigh the 3 factors in determining the curtilage of the main dwelling. Noting the physical separation of the building to the main dwelling, by way of fences and hedges, he concluded that the decision of the inspector was not unreasonable.
On the issue of the eaves height of the building for the purposes of Class E, he further decided that the inspector had applied the correct point of measurement. Namely, that the measurement should be taken from the base level of the cut in the sloping ground for which the building was constructed.
Lesson: the lawful ‘residential’ use of land incidental to enjoyment of a dwellinghouse does not, in itself, mean such land is part of the curtilage of the dwellinghouse. It will likely only address the 3rd factor for consideration by the decision maker on the issue of curtilage. This case demonstrates that the way land is managed, particularly by way of fencing and hedges, will be an important factor affecting whether land for residential use also forms part of the curtilage of the associated dwellinghouse.
