Burford v Secretary of State for Communities and Local Government & Anor [2017] EWHC 1493 (Admin)

Burford is a useful Planning Court case on the difference between residential use, the planning unit and curtilage. It confirms that land may lawfully be used for purposes incidental to a dwellinghouse without necessarily being inside that dwellinghouse’s curtilage. The case also considers how the 2.5 metre eaves limit for a Class E outbuilding should be measured where ground has been excavated around the building.

Neutral citation

[2017] EWHC 1493 (Admin)

Court

High Court of Justice, Queen's Bench Division, Planning Court

Judgment date

23rd June 2017

Judge

Mr Justice Supperstone

Case number

CO/6180/2016

What happened at Oakcutts

The case concerned land at Oakcutts near Middle Wallop in Hampshire. The property included a dwellinghouse, ancillary buildings, stables and a substantial area of land which had been used for activities associated with the house, including garden parties, football and recreational horse keeping.

Test Valley served an enforcement notice alleging the erection of a building without planning permission.

The owner argued that the building was permitted development under Class E because it stood within the curtilage of the dwellinghouse and was required for an incidental purpose.

A certificate had already confirmed incidental residential use

Shortly after the enforcement notice was served, Test Valley granted a certificate of lawful existing use or development for the use of the wider land and buildings for purposes incidental to the enjoyment of Oakcutts.

The certificate conclusively established that lawful use.

It did not establish that all of the certified land was within the curtilage of the house.

Residential use, planning unit and curtilage are different questions

The Inspector correctly recognised that curtilage is not itself a land use. Nor does it necessarily coincide with a planning unit or the full extent of land in one ownership.

All of the certified land could form one residential planning unit and be lawfully used for incidental residential purposes while only part of it formed the curtilage of the dwellinghouse.

This distinction is particularly important for larger properties, paddocks and equestrian land.

An incidental use does not decide the curtilage boundary

The court accepted that use or function is relevant to curtilage. But it is only one part of the assessment.

The certificate showed a functional residential relationship with the house. It did not answer the separate physical question whether the land was sufficiently attached to the dwellinghouse and formed one enclosure with it.

Mr Justice Supperstone therefore rejected the argument that the Inspector’s curtilage conclusion contradicted the certificate.

The paddock land was physically separate

The Inspector found that the large rectangular area containing the enforced building had historically been paddock land and was physically separated from the smaller domestic garden by fences and hedges.

Although the paddock was used for horses kept recreationally as an incidental use of the dwellinghouse, the Inspector was entitled to conclude that it was outside the curtilage.

The court stressed that curtilage remains a question of fact and degree for the decision-maker.

Burford is a useful paddock warning

A paddock is not automatically outside domestic curtilage, just as recreational use does not automatically place it inside.

The physical relationship with the dwellinghouse remains crucial. Fencing, enclosure, layout, distance and the character of the land can all influence the answer.

The case fits naturally with Methuen-Campbell, where a separately fenced paddock was also held to be outside the curtilage of a house.

The Class E eaves measurement

The owner’s Class E argument failed for a second reason. The outbuilding had been built on a level area excavated into sloping ground.

Class E imposed a 2.5 metre maximum eaves height. The owner argued that the measurement should be taken from the higher natural land around the excavated platform.

The Inspector instead measured from the excavated ground immediately adjacent to the building. The High Court held that approach lawful.

Ground level means the ground immediately adjacent to the building

The GPDO definition directs attention to the surface of the ground immediately adjacent to the building. Where the surrounding ground level is not uniform, the highest adjacent part is used.

In Burford there was a flat excavated area around the building on all sides. The higher ground beyond retaining walls was separate from the surface immediately adjoining the building.

The Inspector was therefore entitled to measure the eaves from the excavated level.

No duty to invent an alternative enforcement solution

The owner also suggested that the Inspector could have considered lowering the building rather than requiring the breach to be remedied as stated.

The court rejected that argument. The appellant had not proposed lowering the building during the appeal and there was no obvious alternative on the evidence which the Inspector was required to devise for himself.

Read the full Burford judgment

The approved Planning Court judgment is held in the Planning Geek case law library. Gold Members can open the protected PDF below.

Related Planning Geek guidance

See our guides to curtilage, planning units and Class E outbuildings.

Burford Case Law Page Updated: 9th September 2026