O’Flynn v Secretary of State for Communities and Local Government (Administrative Court)[2016] EWHC 2894
O’Flynn v Warwick DC Planning Inspector, 05 October 2017
[2017] P.A.D. 49 – have my doubts about decision which seems to say incidental domestic use of itself can turn land into curtilage
Clarke and Robson-Kanu v Bracknell Forest BC, Planning Inspector [2017] P.A.D. 46
10 I was taken to several court cases concerning the definition of curtilage. Back in the 1950s it was established that to fall within the curtilage of a building, it is enough that land serves the purpose of a building in some reasonably necessary or useful manner, even though it need not be marked off or enclosed in any way. However, other considerations, such as past and present relationships of ownership and function, must be taken into account. Interpretation of the word curtilage is not a matter of law and should be based upon the ordinary meaning of words so it is, therefore, a matter of fact and degree. The council referred to Dyer , 1 which endorsed the dictionary definition “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.” However, this is not the last word on curtilage which was dealt with in McAlpine 2 and Skerritts 3 which has left us with the following propositions: a curtilage need not be small as size is related to the building to which it is attached and its context; intimate association with land which is undoubtedly within the curtilage is necessary to make the land under consideration part and parcel of that undoubted curtilage land; and, physical enclosure is not necessary.
11 In my view the area of land attached to the rear of Nos 2 and 3 is undoubtedly their garden. Both houses are substantial and the gardens as they stand today are not large. There is nothing on the ground to suggest the whole garden is not part of the curtilage. The original garden element is linked seamlessly to the amenity land element and there would seem to be an intimate relationship between the two. To any observer, the rear gardens would appear to simply be one piece of land and without any knowledge of the history of the site would appear to be part of the usual curtilages of such properties.
12 I find it particularly persuasive that even in aerial views the gardens seem to be entirely natural. Although the original rear gardens followed the line of the Green Belt, this line weaves through the back gardens of the houses to the north, all of which have, at some time in the past, extended their gardens into the Green Belt and now form a distinctive straight line boundary with the golf course to the east. This straight line stepped in behind Nos 2 and 3 (as their original gardens were quite short) and then beyond the next house (No.86 Lock’s Ride) steps in again to the road as there is an open field beyond. Now, the gardens of Nos 2 and 3 are aligned with the neighbours to the north forming a continuation of the development boundary with the golf course. I am also aware of the previous history of the land and that there does not seem to have ever been a curtilage that was defined on the *665 ground and has subsequently been extended, but that the current gardens were created during the process of building and selling the houses.
13 I should be extremely reluctant to set a precedent that the mere absorption of neighbouring land into ones garden automatically extended one’s curtilage, but that does not seem to be what has happened here. There are no clues in the gardens themselves, either physically or in the manner of their use and relationship to the dwellings, or in the surrounding pattern of development that would suggest anything other than that the curtilages of Nos 2 and 3 cover the whole area of occupation, as would be typical for any normal residential development.
14 The council suggested the past history was important, and that in some way the unlawful use of the amenity land counted against its inclusion as curtilage. However, the appellant referred to Chadwick v Greenwich4 where it was held that it was irrelevant that the garden use had not been formally approved what mattered was the use being made of the land. I am also aware of the recent judgment in O’Flynn v SSCLG 5 where the court criticised an inspector for not considering the effect of s.55(2)(d) in the case of an application for a LDC. Having found the land in question had not been used for residential purposes for the necessary period the inspector should have gone on to consider whether it was nevertheless within the curtilage of the property and so the use would not constitute development.
15 It is clear to me therefore that the land in question for both properties is within the curtilage of those properties and so by virtue of s.55(2)(d) its use for purposes incidental to the enjoyment of the dwelling-house does not constitute development. As the uses to which the land has been put are purposes incidental to the enjoyment of the dwelling-house then the appeal on Ground (c) succeeds as there has been no material change of use, and I shall quash both notices. It follows that the fences are permitted development and so the LDC appeals should also be allowed. However, the inquiry also considered a number of other contentious issues which I feel I should express an opinion on, not least because of the appellant’s costs claim which touches on how the council dealt with these issues.