Intimate association

14 Nov 2023

Sounds like a film title but alas that isn’t the subject of this blog. Although if it were a film, it would be the latest sequel in a long-running franchise. No, the subject matter is defining curtilage, and the latest case law to follow a longline of preceding case law.

An inspector tasked with deciding an appeal against refusal of an application for a LDC, seeking to establish that the proposed erection of a workshop, a potting shed and construction of swimming pool was permitted by GPDO Part 1, Class E, including by virtue of being sited within residential curtilage (400-042-968), not unsurprisingly turned to case law.

By way of background, the owner of the semi-detached former farm-worker’s cottage had purchased parcels of adjacent farmland to enlarge the property’s modest original curtilage, in 1996 and 2005, using the additional land as garden. To make a judgement on whether the land where the outbuildings and pool were proposed to be sited could be defined as residential curtilage, the inspector considered relevant case law on the meaning of curtilage.

The most recent judgment on the matter of curtilage was made by the court of appeal in Hampshire CC & the Open Spaces Society & Others v SSEFRA & Blackbushe Airport Ltd [2021]. After reviewing a number of earlier judgments, including Dyer, Calderdale, Skerritts and Challenge Fencing, the judge in Blackbushe concluded that there is only one true test, which is the test of ‘intimate association’ leading to a conclusion the land forms part and parcel of the building, as set out in Methuen-Campbell v Walters [1979]. The Blackbushe judgment also held that curtilage in any given case is a question of fact and degree, and a matter for the decision-maker.

The inspector applied the test reiterated in Blackbushe from Methuen-Campbell, to decide that in the appeal case the land in question was not so intimately associated with the cottage that it formed part and parcel of the building, and it was therefore not curtilage. Whilst in terms of physical layout, ownership, and use, there was a degree of connection between the land and the cottage, the inspector identified a spatial and visual separation of the location of the proposed outbuildings and swimming pool from the cottage.  This separation disconnected them and reduced the degree of association to a level that was not intimate. The inspector concluded the council's refusal to grant a certificate of lawful use or development was well-founded and the appeal failed.

For more on defining residential curtilage, see DCP 4.3444 and 12.912.