Appeal Decision 190 - Certificate of Lawful
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January 2011 - Code a00190
Summary of Case (appeal
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
“… 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
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.”
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.
[Relevant to: “Development within the curtilage of a
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.
(*subject to compliance with the particular Class including all limitations and conditions, of
“Development within the curtilage of a dwellinghouse”].
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
“Development within the curtilage of a dwellinghouse”].
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