Permitted Development England
How to build a
home extension without Planning Permission using your PD rights - Oct. 1st
2008
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Appeal Decision 190 - Certificate of Lawful Development.
Summary of Case (appeal allowed):
The property is a two-storey mid-terrace house, and the application was for a proposed single storey rear extension. The proposals would have involved building up the party wall between the application site and the adjoining number 16.
The key issue was whether the works to the party wall would constitute “Development within the curtilage of a dwellinghouse” and fall within the scope of Part 1 of the GPDO.
The Inspector stated the following:
“… The drawings show that the outbuildings to the rear of no. 14 would be incorporated into the layout of the new single-storey extension, and the sidewall, which straddles the shared boundary, would be raised by about 650mm. The scheme would comply with all of the relevant criteria in Class A of the GPDO, but the Council argues that the extension would be partly built outside of no. 14’s curtilage.
Planning law does not define the word ‘curtilage’. The Oxford English Dictionary defines ‘curtilage’ as a small court, yard, garth, or piece of ground attached to a dwellinghouse, and forming one enclosure with it and the area attached to and containing a dwellinghouse and its outbuildings. The Court of Appeal accepted that the following three factors had to be taken into account in determining what constituted the curtilage: the physical layout of the building and structure, their past and present ownership and finally, their past and present use and function. These three tests are applied whatever might be the strict conveyancing interpretation. In addition to this, the High Court identified the following three relevant characteristics of a curtilage. Firstly, it was confined to a small area about a building. Secondly, an intimate association with land which was undoubtedly within the curtilage was required in order to make the land under consideration part and parcel of that undoubted curtilage land. Thirdly, it was not necessary for there to be physical enclosure of that land which was within the curtilage, but the land in question at least needed to be regarded in law as part of one enclosure with the house.
The Council’s case relies upon the suggestion that the single-storey addition would be partly built on a wall that extends beyond the appellant’s ownership boundary, but that does not necessarily mean that the wall is outside the curtilage. In addition, no legal authority in support of this proposition has been advanced for my consideration. Nonetheless, it is difficult to imagine a structure, and the land on which it stands, having a more intimate association with the dwellinghouse than one of the walls that not only contains and encloses it, but also is part of its very layout and fabric such as the wall and outbuildings to no. 14 and 16. The boundary wall forms an integral part of the outbuildings and the wall stands on land immediately next to other land that undoubtedly forms part of the curtilage, because of its arrangement. Due to its physical and functional setting, I consider that the wall forms a sufficiently close enough relationship with the rest of no. 14 and so falls within the curtilage of the dwellinghouse for the purposes of the GPDO.
Furthermore, although in the Sutcliffe case different circumstances were involved, it was held that one building and its curtilage might fall within the curtilage of another building. In this case, it may be possible that the curtilage of the properties overlap to some extent, due to the construction and make-up of the outbuildings. By itself, nevertheless, that would not imply any access rights, or to carry out any works to the party wall, without the owner’s consent and such matters are covered by legislation such as The Party Wall etc Act 1996. The existence of such legislative controls is, in my view, an acknowledgement of the needs and rights of occupiers as well as a means of securing and protecting property rights. It is thus a further indication, and indeed statutory recognition, of the ‘intimate association’ referred to above. Taking account of the legal authorities and the particular circumstances of the case before me, ownership of the boundary wall between no. 14 and 16 is but one factor to be considered and does not determine the matter exclusively.
On the balance of probabilities, it follows that in terms of its functional relationship to the building, and the area it occupies, the party wall falls within the curtilage of no. 14 for the purposes of Class A of the GPDO. Consequently, having considered all other matters raised, I conclude that the single-storey rear extension would be permitted by Article 3, Schedule 2, Part 1, Class A to the GPDO.”
Main Conclusions:
·
The party wall of a property does fall within the “curtilage” of the
property. As such, works to a party wall are covered by the phrase “Development within the curtilage of a
dwellinghouse”, and therefore would fall within the scope of Part 1 of the GPDO.
·
For example, where the proposals involve the building up across the full width of a party
wall between two properties, this is permitted* by the Classes within Part 1.
·
It should be noted that it is possible for the curtilages of two properties to overlap
slightly, such that the same party wall is within the curtilage of each of the two
properties.
Links to the “Appeal Decision Notice” and other associated documents (e.g. drawings, etc):
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Appeal Decision
Notice:
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OS Map:
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Drawings:
Download documents and diagrams of useful Permitted Development information
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