The question as to whether part of your garden or grounds are within the residential curtilage of your property or just simply garden, within the domestic use of your property at first hand can appear rather arbitrary. However the perceived position of this illusive boundary confers rights and obligations that may or may not be available to the property. For example the following forms of development can only take place within the residential curtilage:
Development only allowed within the residential curtilage
- Extensions under permitted development rights
- Replacement dwellings (the demolition and rebuilding of a domestic dwelling in a different position)
- Construction of buildings ancillary to a domestic property under permitted development e.g. garage, swimming pool, tennis court, log store etc.
Development not allowed within the residential curtilage
Similarly if it is perceived that part of a building falls within the curtilage of a listed building then restrictions on development and change of use can also apply to the non-listed building.
Areas of contention on residential curtilage
Disagreement on the boundary of residential curtilage can occur where a property pre-dates the planning system or parts of the property and or adjoining land have been used contrary to the original permission. In such circumstances it can be necessary to prove an existing use is lawful through either a retrospective planning application or a Certificate of Lawful Existing Use or Development. This will regularise the legal status of the use or development so that the property owner or subsequent purchasers can be confident that enforcement action cannot be taken in the future.
There is a lot of confusion over the legal interpretation of residential curtilage as it is not defined in statutory law and therefore relies on several judicial cases, one of which is often misreported. Any application must take this case law into account and ensure a clear unified case is presented, as the onus of proof is very heavily weighted on the applicant and an unsuccessful submission could result in enforcement action being taken. In a recent approval we have successfully secured a Lawful Development Certificate that defines the boundary of a properties residential curtilage along with confirming the lawful status of other development previously undertaken via permitted development rights.