Permitted development and Curtilage question

[Lala84]

After some advice from any planning experts please…..

In the process of buying a house and we’d like to build a garden room under permitted development. The house itself has already had a significant extension and we have no intention of increasing it further.

Now looking at the permitted development guidelines, it’s states that it is not permitted development if the total area of ground covered by buildings other than the 'original' dwellinghouse would exceed 50% of the total curtilage. The original dwelling house is the house as it stood in 1948.

Our garden room would not mean that more than 50% of the current Curtilage of the garden as it currently stands would be covered. However, the paperwork from the solicitor shows that in the 1950s, a piece of land was sold to the house from a local farmer. This land is marked is now marked by a red border on the land registry as being part of the boundaries of the house and it has definitely been used as the domestic garden for well over 10 years.

So, I am really confused as to the 50% rule. Is it that we can’t build if it would cover more than 50% of the Curtilage as it was in 1948, or is that we can’t build if it would cover more than 50% of the Curtilage now based on the size of the original dwelling house only as it stood in 1948? The wording is quite unclear I feel. We would be building the garden room on the additional land added in the 1950s and so I’m even more confused!

any advice welcome. I hope I am making some sense to someone! 😬

Ooh that's a tricky one! There is no legal definition of resident curtilage in the planning regulations. Lots of case law though!

Was there planning permission for change of use of the extra land from agricultural to residential curtilage? There should have been. It's possible that there may be conditions relating to that piece of land restricting what could be done with it following the change of use.

I think that the curtilage can change over time, so just because a piece of land has been added, it doesn't necessarily mean it can't be curtilage for pd purposes. However, the fact that land has been used for residential purposes doesn't necessarily make it part of the curtilage. It will depend on its relationship with the property in terms of location, separation etc.

The only real way to determine whether your project is pd would be to submit a certificate of lawfulness for a proposed development to the council for consideration.

I would eat my hat if they applied the 1948 garden boundaries. These rules are just about preventing over-development of plots and the 50% is just a way of giving people enough flexibility that most domestic extensions can be done without excessive levels of cost and paperwork. So what matters is how much of your garden is built up today, not what it would have been in 1948.

Even if you did go over the 50%, then it just means you'd need to put a planning app in - it doesn't imply you wouldn't get permission.

Even if you did go over the 50%, then it just means you'd need to put a planning app in - it doesn't imply you wouldn't get permission.

It doesn't necessarily mean that permission would be granted either.

Much will depend upon the set up. The fact that the land was previously agricultural means that the site isn't your standard suburban terrace/semi where it would be easy to argue. This could be a very different layout.

In your slightly complicated scenario, I would apply for a Certificate of Lawfulness (proposed) to make sure that it's all agreed in advance. It would cost about £125 and then you know that a Planning Officer has looked at your proposal and agrees that it is (or isn't) permitted development, and you can go from there.

Well, no, of course it doesn't mean you WOULD get permission. I assumed that was obvious!

This is not quite the same but interesting anyway http://planninglawblog.blogspot.com/2011/08/curtilage-problems-practical-example.html
My view is that the development size (buildings) is calculated as at 1948 — so excluding the extension - but that the curtilage is per your current curtilage which may now incorporate some or all of the additional land.

The reference to development at 1948 is explicit. I'd argue that if the curtilage were to be judged as at 1948 that would also have been made explicit in the legiation and since it's not in there you work from today's curtilage.

@Bluebell247 I agree it is possible for the curtilage to have changed, but just because land is in the same ownership it does not necessarily mean that the land forms part of the curtilage for planning purposes.

We successfully changed the domestic curtilage for our house, which the council said was ag land (it was and has always been a flipping garden!). We submitted a good application, worth paying a planning consultant to help, and Google earth images showing it as a garden, and then sworn statements (witnessed by a solicitor) stating we'd used it as a garden for over 10 years. We got previous owner, friends and family to sign one.

Thanks all for your thoughts; they are really helpful. I guess there are no guarantees and we would definitely apply for a certificate of lawful development before building anything it’s just a shame the rule is so blurry given our particular circumstances as ideally we’d like to know before we move. There are no boundaries between the added land, it is now very obviously a domestic garden and has been since it was purchased as far as I can find out. I read the legislation in the same way as you bluebell - so the dwelling is the size as per 1948 but the Curtilage is as now. I will see if I can find any more case law! Thank so much all!