Residential curtilage, and why it decides where an annexe can go

Almost everyone assumes that the land they own around their house is their garden, and that anything they own is fair game for an annexe. Neither assumption is safe. Curtilage is a planning concept with a narrower meaning than ownership, and where the proposed position falls outside it, a case that looked straightforward stops being straightforward.

What curtilage means in practice

Broadly, the curtilage of a house is the land that serves it as part of its domestic setting: the area that goes with the house and is used with it. In ordinary language, the garden. It is a question of fact and degree rather than a line anyone has drawn for you, which is why two properties of identical size can have very different answers.

Three things tend to matter:

• How the land is used. Lawn, patio, borders, a shed, somewhere the children play — domestic use. Grazing, an orchard run as an orchard, storage for a business — not.
• How it is enclosed. Whether it reads as one enclosure with the house, or is fenced, hedged or gated off as something separate.
• How it relates to the house. Whether it is physically and visually attached to the domestic area, or sits beyond it and is reached as a separate space.

Why the title plan is not the answer

A title plan tells you what you own. Curtilage tells you what is used with the house. The two very often differ, and the difference is where problems start.

You can own a field, hold it in the same title as your house, and still have it sit entirely outside the residential curtilage.

The converse also happens, though less often. Land bought separately and absorbed into the garden years ago, used domestically ever since, may well form part of the curtilage now even though it arrived by a different route.

The positions that cause trouble

These are the situations where the question stops being obvious.

1. The paddock beyond the garden. Owned, fenced separately, used for horses or simply left. Placing an annexe there is siting it outside the curtilage, however convenient the space is.
2. Land bought from a neighbour. Recently acquired, not yet absorbed into domestic use, and still reading as part of what it used to be.
3. The far end of a long plot. Where the maintained garden gives way to rougher ground, the boundary of the curtilage is often somewhere in the middle rather than at the fence.
4. Land divided by a hedge or a track. A physical division that has existed for years is evidence that the two areas are separate, whoever owns both.
5. Agricultural land held with the house. Distinct in use, and usually distinct in planning terms, whatever the deeds say.

What can be done about it

Where a proposed position sits outside the curtilage, there are broadly three responses, and only one of them is quick.

The first is to move the unit. Frequently a position twenty metres closer to the house solves the problem entirely, and this is by far the most common outcome once the issue is spotted early.

The second is to establish that the land is in fact within the curtilage, which is an evidence exercise: historical photographs, aerial imagery, maintenance records, and a plain account of how the area has been used and for how long. This can succeed, but it is work, and it needs doing before the application rather than in response to a refusal.

The third is to accept that the proposal needs planning permission instead. That is a different application asking a different question, and for some properties it is the right one.

What we look at

When we assess a proposed position we look at the title plan alongside current and historical mapping, photographs of the site as it stands, how the area is enclosed and reached, and what the land has been used for in recent years. Where the answer is genuinely arguable we say so, and we set out what would strengthen it, rather than assuming the point will pass unnoticed.

Curtilage is the first of the questions we work through, because it decides whether the rest are worth asking. Start with an assessment of your property.