Curtilage – what is it?
You will find the word curtilage mentioned many times (on over 140 pages) on Planning Geek – but that exactly is it?
Quick answer is it is the land around your property. So that could be a garden, a yard, flower beds, vegetable plot, outbuildings etc. Or maybe it doesn’t have one?
Is it that simple?
No!!!
We really wish it was that simple, so let’s dive into this a bit deeper to try and understand the issues. Any why often local authorities do not understand it either.
Definition of curtilage
According to the Collins English Dictionary for British English it means “the enclosed area of land adjacent to a dwelling house”.
Curtilage is a matter of fact and degree. This means that there is no fixed method of establishing what is and what is not curtilage and each case can be unique. It can be established through the interpretation of relevant legal precedent and case law.
The problem is there is no legal definition of Curtilage.
The word Curtilage appears in over 200 times within the GPDO. Yet is only defined in a couple of places. Only one of which is still current.
“curtilage” means, for the purposes of Class Q, R or S only— (a) the piece of land, whether enclosed or unenclosed, immediately beside or around the agricultural building, closely associated with and serving the purposes of the agricultural building, or (b) an area of land immediately beside or around the agricultural building no larger than the land area occupied by the agricultural building, whichever is the lesser; Paragraph X for agricultural buildings
Unless we are looking at converting a barn, we can ignore the GPDO, despite so much of it being based around the curtilage of a dwelling!
Note that on modern estates, there may be a patch of land outside of the boundary wall or fence. Whilst this may be on your title, it will not be considered part of the curtilage.
Please be aware that on some buildings there isn’t a curtilage!
Garden land!
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.
From case law, we can establish that curtilage does not always equal the garden or land that that is used in conjunction with the enjoyment of a dwelling house. Especially when this garden land is split from the dwelling via a road or other shared access such as footpath or driveway.
Curtilage can however change over a period of time – it is not necessarily set in stone. It can also be on one or more titles, although those titles should be in the same ownership.
If land isn’t actually curtilage and instead might be garden land, note that in order for ‘land’ to become garden land it must have been used as garden land for at least 10 years and you must be able to demonstrate as such.
Often agricultural or equestrian land is merged into the area enjoyed by the family. This remains as agricultural land, unless either planning is obtained to change it to garden land or a period of 10 years has passed after which it is no longer subject to enforcement. If 10 years has lapsed we would recommend a certificate of lawfulness to confirm. Planning Geek can assist with this application. Click here to get a fee proposal.
Note that garden land does not have permitted development rights for items such as outbuildings. It does have rights under Part 2 for say fences.
What can and can’t the curtilage be?
Can alter in size through the passage of time ✅
Can include paddocks and stables as long as it is for domestic animals ✅
Can include tennis courts and swimming pools if used by the occupants of the welling and has an incidental use ✅
Can include orchards, vegetable plots, greenhouses as long as they are solely for the occupants of the dwelling and are incidental to its use ✅
Can be on multiple titles in the same ownership ✅
Can’t be separated by roads, shared footpaths, rivers or similar unless private to the dwelling ❌
Can’t be owned by different people ❌
Can’t be public or amenity land. For example land whilst on the same title is open space for a community ❌
Can’t have a use which is non residential. Agriculture, forestry or equestrian ❌
Listed Buildings and their curtilage
The Planning (Listed Buildings and Conservation Areas) Act 1990 says that the listed building also includes any ancillary objects or structure within the curtilage of the building, which forms part of the land and has done so since before 1st July, 1948. A more modern building would not be listed. If the pre-1948 building had changed ownership before it is listed it would not be considered part of the listing.
If land has been split since a dwelling was listed, the other buildings could well still be listed if at the time of listing they were part of the curtilage of the building that is listed and pre-dated 1st July 1948.
As with all listed buildings, take a advice if you are unsure. Historic England have complied a leaflet on this matter.
Curtilage in the countryside
With certain permitted development rights such as new agricultural buildings, you can’t erect within the curtilage of a building. Fortunately the curtilage of a farmhouse or other building is often limited.
Each structure will have its own curtilage. More often this is nothing or maybe a bit of hardstanding.
Understanding the curtilage is important even here. For example in the temporary use of land (Class B of Part 4), the temporary use can’t be within the curtilage of any building. Therefore it must be in a field.
If you wish to perhaps add hardstanding – this might be acceptable in the curtilage of a dwelling, but not within garden land or agricultural or equestrian land without further permission. See Class A and Class B of Part 6 for PD in agricultural areas.
Commercial Curtilage
Like any other building a commercial property will have its own curtilage. Often this is the land used by the business. So it might include the yard, car parks, landscaping etc. It may not however include fields. As with any other curtilage is important to understand. For example for stand alone solar panels within the curtilage of a commercial property, you need to be sure that the land is the curtilage.
Likewise on land that has say Use Class B8 permission, this permission will only extend (at best) to the curtilage for storage of items in conjunction with the permission.
How can Planning Geek help?
If you are unsure as to what is the curtilage and therefore where you can extend your property to or add outbuildings, please consider booking a Zoom session with Ian, the founder of Planning Geek.
Reach out and book a Zoom session if you need further help or clarification.
If enforcement have made contact, we urge you to contact us asap. We might be able to apply for a certificate of lawfulness for example. Or we might need to assist you with retrospective planning.
We are here to help!
It is important to understand what is the curtilage in order to take advantage of the GPDO and other legislation. As it is not defined, anything on this page could be updated by future or even existing case law. So best to ask before you act. Just try and avoid asking the local authority!
Page Updated: 29th September 2024
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