Curtilage extensions Q & A DCP Section 12.9

This section is concerned solely with proposals for the extension of residential curtilages onto other land. Such land is normally in agricultural use and subject to rural protection policies, but in urban areas garden extensions are sometimes sought at the expense of so called "amenity land" within housing estates.

Q & A    12.9/10

My authority is having problems with residential gardens being extended into adjoining farmland. Where retrospective permission has been refused, the authority has previously advised that such land can remain fenced off so long it is retained in agricultural use. However, the land eventually starts to look like part of a garden. Since it is no longer farmed, I consider that there has been a material change of use. If enforcement action is taken, would it be reasonable to require the land to be returned to agriculture and the fences removed? Should the current use be described on the notice as a leisure plot?

The inclusion of farmland in the curtilage of a dwelling is a material change of use from agriculture. However, if the land remains physically separated from a dwelling and continues to be used for purposes that fall within the statutory definition of agriculture, it is arguable whether development has taken place. It is necessary to assess whether the land has taken on the appearance and function of serving and being incidental to the enjoyment of the dwelling, to the extent of bringing it within the same planning unit, or whether the land is in separate agricultural use, with no clear physical or functional linkage to the dwelling except common ownership. While restoring such land to agricultural use may appear a reasonable requirement, this may prove impracticable. In many cases, a less onerous requirement of ceasing to use the land for residential garden purposes is stipulated. Practice on requiring the removal of fences varies, although this is reasonable where they are part and parcel of the unauthorised use and their retention would undermine efforts to secure cessation. Since the term "leisure plot" is open to interpretation, I would refer instead to "residential garden land".

A neighbour has fenced off an area of incidental open space which he owns in front of his house, bringing the land into his garden. The enforcement case officer says that this change is unacceptable, but has held off taking action because of case load pressure. He says that there are ten years to take action as this is a change of use. As the fence which encloses the land is operational development would this become exempt from enforcement action after four years, in effect still excluding the public from this area? In such circumstances would the owner be able to claim nil use if there were no visible evidence of a garden use such as sheds, a vegetable plot or furniture? JT. 

As an unauthorized change of use the ten year immunity rule applies. But, as and when enforcement action is taken within that period, the requirements of the notice may specify the removal of all the physical appurtenances that are part and parcel of that change of use. This includes fences even though they may have been erected using permitted development rights. Cases which support this approach are detailed in Development Control Practice at section 12.95.

In the instance you cite it will be very difficult to argue that there has been no material change of use, even if the land remains in the same physical condition as before. The mere fact that the land has been annexed by the erection of a fence should be ample evidence that it now forms part of a residential curtilage. GH

A piece of agricultural land was incorporated in my client's garden about seven years ago. The local authority maintains that the garden extension is unlawful because this occurred within the past ten years. I have suggested that because the planning unit includes the curtilage, if I apply for a lawful development certificate (LDC) for the use of the entire site as a single dwellinghouse, only four years' use needs to be demonstrated. I also consider that, as part of the lawful curtilage, the land would benefit from permitted development rights. What do you think?

The inclusion of farmland in a domestic garden represents a material change of use from agriculture to which it has been the consistent practice of inspectors to apply the ten-year rule. A recent example is from Yorkshire (DCS Number 100-049-121). In a case from Dorset in 2004 (DCS Number 030-092-233), a local authority had granted an LDC for the residential use of a former stable block but not for the adjoining garden, which had previously been used as a paddock. The inspector opined that section 171B(2) of the Town and Country Planning Act 1990 states that the immunity applies simply to a building and does not mention associated land or ancillary Activities on adjacent land. But I am not aware that the matter has been considered by the courts. Permitted development rights will apply to the curtilage extension where it is lawful. PM.


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