C O N T E X T 9 7 : N O V E M B E R 2 0 0 6 11 thus encourages housing development to take place on previously development land, which is defined to include the curtilage of previously existing buildings or infrastructure; this was considered in Withers v Secretary of State. A similar policy in a local plan was considered inWheeler v The First Secretary of State. Finally, where a building or structure is on a sea coast, a tidal river or an estuary, the tidal water and the land beneath it are excluded from its curtilage. Definition of curtilage: cases decided under other statutory regimes One definition of curtilage often cited is ‘the ground which is used for the comfortable enjoyment of the house or building... serving the purpose of the house or building in some necessary or reasonably useful way’. This formulation, from Sinclair-Lockhart’s Trustees v Central Land Board (1951), is not very precise; and it might also include, for example, a neighbour’s garden which could serve a house in a very useful way by providing an attractive view. But the test in SinclairLockhart was used by the inspector whose decision was the subject of judicial criticism in Wheeler, on the basis that he had applied the test incorrectly, when determining that an ancillary structure ‘must serve the house or building in some necessary [or] reasonable way’. In Stephens v Cuckfield RDC, a case in which the court generally shied away from defining curtilage, it was pointed out that one can have a garden which is not within the curtilage of anything. Further, in the 1898 case of Caledonian Railway Company v Turcan, it was held by the House of Lords that an accessway leading to a yard could in appropriate circumstances be part of the curtilage of the building adjoining the yard. It is thus not surprising that, inRe St George’s Church, Oakdale, it was held that the territorial extent of the curtilage ‘will depend on the facts of the individual case and the circumstances of the particular site’. And in Methuen-Campbell v Walters (1979), Buckley J held that it was not enough that the land and its curtilage were conveyed or demised together. Nor is the test whether the enjoyment of one is advantageous or convenient or necessary for the full enjoyment of the other: ‘For one corporeal hereditament to fall within the curtilage of another, the former must be so intimately associated with the latter as to lead to the conclusion that the former in truth forms part and parcel of the latter. There can be very few houses indeed that do not have associated with them at least some few square yards of land, constituting a yard or basement area or passageway or something of the kind... which on a reasonable view could only be regarded as part of the messuage, and such small pieces of land would be held to fall within the curtilage of the messuage. This may extend to ancillary buildings, structures or areas such as outhouses, a garage, a driveway, a garden, and so forth. How far it is appropriate to regard this identity as part of one messuage or parcel of land as extending must depend on the character and circumstances under consideration.To the extent that it is reasonable to regard them as constituting one messuage or parcel of land, they will be properly regarded as all falling within one curtilage; they constitute an integral whole.’ The leading case on this point, Dyer v Dorset CC, concerned a provision in the Housing Act 1980 giving an owner of a dwellinghouse the right to buy it where it ‘either forms part of, or is within the curtilage of, the building’. This particular case concerned a college of agriculture, which comprised an estate of about 100 acres containing the main house, Kingston Maurward, which was its headquarters, extensive gardens, a park and a mass of outbuildings (see Figure 7) – a situation similar to a number of larger listed buildings in extensive grounds used for institutional purposes – Kingston Maurward House itself is indeed listed, Grade I. The lecturers’ houses, including the one whose status was in dispute, were on the edge of the estate, facing a road which provided the only vehicular access. They were fenced off at the back, although there was pedestrian access to the rest of the college grounds. The Court of Appeal held that the issue of whether a particular dwellinghouse was within the curtilage of another building, being a question of fact and degree, was primarily for the trial judge. Lord Donaldson MR examined the numerous authorities, including most of those referred to above, and concluded that the word curtilage seemed always to have to be read in context. Accordingly, if in this case the relevant words were the ‘curtilage of the college’, he would have had little doubt that, despite the fact that the house was on the Figure 7. Kingston Maurward House and Park, Dorset (Dyer v Dorset CC)
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