domestic curtilage extention

domestic curtilage extention

Postby HappyGoLucky123 » Thu May 12, 2016 8:03 pm

I’m currently looking to purchase a house, but the garden is very small.

The house was formerly part of a much larger estate, this is going back several decades, but has since been separated.

The next door neighbour owns the bigger mansion that formed the bulk of the estate, set within 5 acres of land, converted it into a care home for the elderly (Use class C3)

I’m looking to buy an acre or so from the care home owner, to increase the size of my garden.

Both the house i wish to buy, along with the acre of land is Green Belt, but not agricultural land.

The acre of land is currently overgrown with thorns, several small trees, three or four large trees, but no Tree Preservation Orders. I wouldn’t describe it as woodland, but just an unkept garden. The council may call it woodland though?

Will this become my residential garden? (or is the term domestic garden?)
I’m guessing not?

Will it become part of my domestic curtilage?
Again, I'm guessing no?

What if I wish to build a shed or outbuilding in this acre?

I read on here that Permitted Development rights only apply to development within the curtilage of a dwelling house, will I have issues?


What can and can't I currently do on this land?
Any help much appreciated.
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Re: domestic curtilage extention

Postby HappyGoLucky123 » Mon May 16, 2016 1:14 pm

Anybody?
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Re: domestic curtilage extention

Postby Clifford Pope » Tue May 17, 2016 1:09 pm

I remember a question here some time ago from someone buying a part of his neighbour's large garden, asking whether the land would automatically become part of his own garden and curtillage. I recall that the answer was yes, because curtillage remains curtillage, and domestic land use remains domestic, even if transfered to someone else.

But in your case that would depend on whether the land was (and therefore remains) part of the mansion's curtillage. 5 acres is rather large for a curtillage, but can occur if the circumstances of a big house make it appropriate. But if that extent had never been established before the division, I don't see any chance of retrospectively arguing it now.
Your best chance might be by creeping gardenisation, keeping your head down, doing nothing too noticeable, and above all keeping on excellent terms with all your neighbours. I've done it myself. Curtillage is a fascinating subject, but I'm not an expert. A friendly chat with an experienced surveyor might be the best way forward (NOT the council :) )
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Re: domestic curtilage extention

Postby pilman » Tue May 17, 2016 6:47 pm

It seems that there is currently a residential dwelling with an area of land surrounding the house that would meet the legal definition of curtilage.

Normally that means the land in front of the house, on each side of the house and behind the house, which is often referred to as garden or driveway.

Permitted development within the curtilage of a dwellinghouse is now contained in Schedule 2, Part 1 of the Town and Country Planning (General Permitted Development) (England) Order 2015.

Someone who negotiates with a neighbouring land-owner to purchase an acre of land would need to identify if that land has a current use recognised by the Use Classes Order.
If this land was part of a formal garden attached to a building used as a care home and was then owned by the neighbouring land-owner who had a much smaller original garden, then it could be argued that there has been no change of use. i.e. a garden before the sale belonged to one property and after the sale the same land was to be used as a garden belonged to another property.

The fact that the building set in 5 acres is now in C3 use as a nursing home may prove important in that sort of argument.

Keeping that land as part of an extended garden now belonging to the smaller house may not be development because if it is considred that there is no change of use.

This additional land will never become part of the curtilage of the original smaller house, so all buildings, such as garden sheds or greenhouses that need to be erected on this extra garden land would need planning permission.

I love the fact that this original poster basically answered his own questions and then wondered why people didn't confirm he was right.
Will this become my residential garden? (or is the term domestic garden?)
I’m guessing not?

Will it become part of my domestic curtilage?
Again, I'm guessing no?


One thing that could be considered if the owner of the nursing home is prepared to be co-operative is to agree a price for the purchase of an identified 1 acre plot of land on an option agreement set a year ahead.
Then a lease is granted for a one year term during which time the land is returned to its full glory as a garden area at the cost of the Lessee.
Then when a series of photos have been taken of the state of this garden prior to the option being executed,that is the evidence to provide to the LPA if there are comments made about using this land as an extended garden for the smaller property.

Buying an overgrown area of land that may be considered as woodland would mean its only lawful use would be agricultural use, because no planning permission is required for that type of use. So if a herd of goats or exotic LLamas are then left to graze on the land that is the final option available to anyone buying an acre of wild land in the Green Belt.
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Re: domestic curtilage extention

Postby HappyGoLucky123 » Tue May 17, 2016 7:18 pm

Many thanks for your replies guys.

However, I’m still not clear as both of your posts seem to conflict slightly..

Clifford Pope wrote:I remember a question here some time ago from someone buying a part of his neighbour's large garden, asking whether the land would automatically become part of his own garden and curtillage. I recall that the answer was yes, because curtillage remains curtillage, and domestic land use remains domestic, even if transfered to someone else.


Here Clifford, what you are saying is yes, the parcel of land would become part of the garden and curtilage.

pilman wrote:This additional land will never become part of the curtilage of the original smaller house, so all buildings, such as garden sheds or greenhouses that need to be erected on this extra garden land would need planning permission.

I love the fact that this original poster basically answered his own questions and then wondered why people didn't confirm he was right.


Yet here Pilman, you’re saying the opposite, with regards to curtilage, that it will never become part of my curtilage?
And yes, with regards to my OP, I was hoping somebody would come along and say I’m wrong and give me a shimmer of hope haha..

I like your suggestion about the option agreement, I was planning something similar and then maybe getting a lawful development certificate to confirm it as garden?

So there’s not a bat’s chance in hell of building a shed/outbuilding without full planning? Not even after 10 years? Or does that apply to something else?

Again, many thanks for your input.
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Re: domestic curtilage extention

Postby pilman » Wed May 18, 2016 12:40 am

So there’s not a bat’s chance in hell of building a shed/outbuilding without full planning?
In the event that a land-owner erects a building that needed planning permission, but the LPA does not seek enforcement action during the 4 years after this building was erected, then the building is immune from enforcement thereafter, which means it becomes lawful.

That is because operational development is immune from enforcement after 4 years.
The anomoly is that if the land on which the building was erected had a change of use, there is a 10 years period during which enforcement action can be started in respect of the change of use.

It could mean that a person buying agricultural land and setting it out for use as a residential garden could have a number of buildings erected that cannot be enforced against after 4 years, but within the 10 year period the LPA could enforce against the change of use of the land and demand the land is returned to its original use. In that case the buildings could be used for agricultural use.

In this posting there appears to be a single planning unit that now accommodates a Care Home which is a use under Class C2 (as opposed to C3 which is a dwellinghouse). It could be argued that all of the land in that planning unit is in C2 use, whereas the garden associated with a dwelling would be in C3 use.

That would imply that a change of use for the 1 acre plot purchased from the Care Home owner will require a planning application. If a building were erected that bacame immune from enforcement after 4 years, there will then be the possibility that the LPA could seek to enforce against the change of use o fthe land from C2 to C3 use, in whci case the buildings could no longer be used at all, even though they could remain standing.

Just thought I would point out how strange planning law is sometimes, although after reading this posting I would have thought a formal planning application to use the 1 acre as part of a residential garden may be allowed if the whole area was shown with a landscaping plan that showed the LPA that it was actually going to be used as a garden, rather than a plot for future development purposes.

When it is possible to erect 12 houses on an acre of land, that is when the LPA will scrutinise any such application for a change of use very thoroughly.
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Re: domestic curtilage extention

Postby Clifford Pope » Wed May 18, 2016 12:22 pm

HappyGoLucky123 wrote:
Yet here Pilman, you’re saying the opposite


Pilman's an expert and is undoubtedly right. I was merely trying to remember something I thought I read in an old thread.
The point was that curtillage once established remains curtillage. Whose curtillage is perhaps another question.
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Re: domestic curtilage extention

Postby Conveyancer » Thu May 19, 2016 9:26 pm

Your problem is that not all planning questions can be answered definitively. It is not clear whether the land you want to buy is garden land. It is entirely possible that one planning authority may say it is and another that it is not. In some cases the only way to proceed is to make enquiry of the planners and get an idea of how they will look at it. I think that that is what you should do here. It is after all your planning authority who get to decide.
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Re: domestic curtilage extention

Postby MacadamB53 » Thu May 19, 2016 10:21 pm

Hi Conveyancer,

is it not ultimately The Planning Inspectorate who decide (should the applicant appeal against the LPA's refusal)?

Kind regards, Mac
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Re: domestic curtilage extention

Postby Conveyancer » Thu May 19, 2016 11:46 pm

MacadamB53 wrote:Hi Conveyancer,

is it not ultimately The Planning Inspectorate who decide (should the applicant appeal against the LPA's refusal)?

Kind regards, Mac


Yes and beyond that the courts.

The point I am making is that where the position is not clear cut, whilst discussing it in a forum like this may be very helpful and allow you to talk intelligently about it, it has to be a good idea to discuss it with those who will make the decision.
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Re: domestic curtilage extention

Postby ParallelLines » Tue Jun 07, 2016 5:57 pm

Brilliant posts folks :)

We had a situation locally with a piece of greenbelt where the council put a temporary TPO order on the whole 'wood' when a landowner was trying for a reclassification. Many of the trees were self seeding Ash and Willow less than 20 years old.

Do houses in greenbelt areas have Permitted Development rights? Just asking because my Planning books describes greenbelt as 'the closest thing in planning to a large rubber stamp with 'NO' on it.'

Perhaps even the goats are in trouble if they were to nibble at the TPO'd Willow...
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Re: domestic curtilage extention

Postby jonahinoz » Tue Jun 21, 2016 9:53 pm

Perhaps even the goats are in trouble if they were to nibble at the TPO'd Willow...

Hi,

My Great Great Great Grand Father was a lumberjack in the Sahara Forest, but the goats worked faster than he did.

If the Planners insist that land is agricultural, can they complain if the agricultural goats kill the TPO'd trees? I seem to remember that I had to record my goats on my annual small-holding return. In (I think) 1981, an Appeal Court ruled that keeping horses was Agriculture. And later, another Appeal Court ruled that riding and feeding horses did not preclude keeping them. But I understand that HMG went all po-faced, and changed the rules.

John W
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