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.
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
So we can ignore the GPDO, despite so much of it being based around the curtilage of a dwelling!
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 and, 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.
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 object 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,
Reach out and book a Zoom session if you need further help or clarification. 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: 26th February 2024
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