10 C O N T E X T 9 7 : N O V E M B E R 2 0 0 6 The Secretary of State appealed successfully to the Court of Appeal. In giving judgement, Robert Walker LJ maintained that: ‘whilst the decision in Dyer was plainly correct… this court went further than it was necessary to go in expressing the view that the curtilage of a building must always be small, or that the notion of smallness is inherent in the expression’. The court did not see fit to give any further detailed guidance upon the matter, other than to reiterate the proposition established in Dyer that curtilage will always be a question of fact and degree. Accordingly, it appears that while in any given instance it will be necessary to have regard to all the circumstances, the starting position for consideration can no longer be an assumption that a curtilage is necessarily limited in extent. The decision in Dyer was also applied in an appeal decision relating to the demolition of a lodge building in Warwick (noted at [2003] JPL 769). The lodge was some 200 metres from the main (listed) house, which had subsequently been used as a school, and the two buildings had been in the same ownership and related use until the date of the listing. There was then a hedge partially enclosing the lodge, but it was still open to the drive and visible from the front of the main house. The grounds had been used for modern residential development, but that was not sufficient to negate the original relationship; and the inspector accordingly found the lodge to be ancillary to and in the curtilage of the house, so that consent was required for its demolition. The position is thus that, for the purposes of establishing what is the extent of a listed building, the position must be examined as it was at the date of listing (or, possibly, as it was at 1 January 1969 in relation to buildings listed before then), in the light of the criteria in Calderdale. And once a decision has been reached, the courts will be slow to interfere. As Sullivan J expressed it in the unreported 1998 case R v North Devon DC, ex parte Tarn: ‘Whether a particular structure is within the curtilage of a particular listed building is a question of fact for the local planning authority or the secretary of state to decide. On such a question of fact, I would interfere with the district council’s decision that, in this case, the hedgebank was not within the curtilage of Prospect Lodge only if I thought it had erred in principle in some way, or if there was no evidence to support its decision or, to put it another way, if its conclusion in this respect was perverse.’ Definition of curtilage: other planning cases The courts have on a number of occasions considered the extent of the curtilage of a dwellinghouse, to determine whether the construction of garden buildings and enclosures would be permitted by the TCP (General Permitted Development) Order 1995 or its predecessors. Collins v Secretary of State (1989) related to a cottage set in 4.5 acres of gardens, of which the part nearest to the cottage was well-cut lawn and the remainder was rough grass, largely neglected. The appellant constructed a summerhouse in the rough part of the gardens, which was the subject of an enforcement notice. On the subsequent appeal to the high court against the inspector’s upholding of the notice, Sir Graham Eyre QC, sitting as deputy judge, considered that in determining the nature and extent of the curtilage of a dwellinghouse, it is important that it should serve the purposes of the dwelling in some necessary or useful manner (echoing the test in Sinclair-Lockhart’s Trustees (see below). On the facts in this case, the rough part of the garden could not be described as part of the curtilage of the cottage, since it did not serve the cottage. The facts in James v Secretary of State (1991) were not dissimilar; a tennis court was constructed towards the further end of a 1.2-acre parcel of land surrounding a detached house set in wooded countryside. Sir Graham Eyre QC (again) held that the extent of the curtilage is ‘quintessentially a matter of fact’. The inspector considered that the field on which the court had been constructed was within the same ownership as the house; and found that there was a functional association between them. However, on the facts, the inspector found that the field was quite separate and distinct from the cultivated garden attached to the house, and the house and the tennis court did not have the appearance of close association or of being within the same enclosure. His decision, that the field was not in the curtilage of the house, was thus entirely satisfactory. A third decision, McAlpine v Secretary of State (1995), again related to the construction of a swimming pool and tennis court in a paddock beyond the bottom of a generous garden. Nigel Macleod QC, sitting as deputy judge, confirmed that the decision as to whether the pool was in the curtilage of the house was essentially a matter of fact and degree for the inspector. He also suggested that it is allowable for inspectors, in appropriate cases, to consider historical evidence where it assists the determination of a present curtilage boundary. The most recent of these GPDO cases is Lowe v The First Secretary of State (2003), in which the court emphasised that the curtilage of a building was not necessarily to be equated to the land in the same ownership as it. It should be noted that, when determining what is the extent of a listed building, the key question is what was the extent of the curtilage of the building in the list at the date on which it was listed. However, when determining what permitted development rights apply, the key question is what is the extent of the curtilage of the building in question at the date of the development. The principles are the same in either case, but the date on which they fall to be applied is different. National and local planning policies sometimes refer to various types of development being acceptable within the curtilage of existing buildings. PPG 3
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