Estelle Dehon and Ashley Bowes have successfully represented the Secretary of State for Communities & Local Government and Test Valley Borough Council respectively, in the most recent consideration by the Planning Court of the meaning of "residential curtilage".
The case illustrates the principle that curtilage is not simply a land use, and accordingly that using land as incidental to the enjoyment of a dwelling house is not determinative of that land being curtilage. The land in question was in common ownership with a dwelling house and was the subject to a Lawful Development Certificate confirming that the land could be used for purposes incidental to the enjoyment of the dwelling house. However, the Inspector found the land was not curtilage because it was not attached to the dwelling house and forming one enclosure with it.
Supperstone J held that the consideration of the criteria laid down by Stephenson LJ for identifying curtilage in Attorney General ex rel Sutcliffe v Calderdale BC (1982) 46 P & CR 399, 407 (being (i) the physical layout, (ii) the ownership, past and present, and (iii) the use or function, past or present) was a matter of planning judgment for the decision taker in a given case, challengeable only on Wednesbury grounds (see: paragraph 46 of the judgment). It is for the decision-maker to decide what weight should be given to each of the relevant factors.
Supperstone J held it was open to the Inspector to find that the land in question was not curtilage even though it was in common ownership with the dwelling house and was certified as having been used for purposes incidental to the enjoyment of the dwelling house.
The case is a useful point of reference for any scheme in which identifying the extent of residential curtilage is important. There is also a useful summary of the case law at paragraphs 32 -37 of the judgment and a pithy analysis at paragraphs 44 and 46 of the judgment of the physical layout criteria.
The judgment is available here.