Whether land is or is not within the curtilage of a building can be a decisive factor in many planning cases. The High Court considered the meaning of the word in ruling that a large hardstanding used for storing fencing materials did not fall within the curtilage of the single, modest building on the site.

The owner of the site had applied to the local authority for a retrospective certificate of lawfulness of existing use or development in respect of a substantial area of hardstanding that had been laid down at its yard. The owner argued that the development was properly viewed as a hard surface within the curtilage of an industrial building or warehouse for the purpose of the undertaking concerned and that it was therefore permitted by operation of the Town and Country Planning (General Permitted Development) (England) Order 2015.

The council refused the application and the owner’s appeal against that decision was later rejected by a planning inspector. The yard had previously been home to several buildings but, by the time of the application, all save one of them had been removed. The inspector found that, although those parts of the hardstanding in close proximity to the remaining building fell within its curtilage, the rest of the hardstanding did not and thus was not permitted development.

The inspector noted that the size of the hardstanding was massively in excess of that which would be needed to serve any undertaking carried on in the building. He found that the hardstanding was the owner’s primary requirement and that the building was an optional extra. In that sense, the hardstanding could not be said to be ancillary to the building.

In ruling on the owner’s challenge to the inspector’s decision, the Court noted that, although a curtilage does not have to be small, the relative size of a building and its claimed curtilage is not irrelevant. The issue as to the extent of the building’s curtilage was a matter of fact and degree for the inspector to resolve in the exercise of his planning judgment.

The inspector had made no error of law and had taken into account the owner’s arguments that the entirety of the site was enclosed by one fence and was in the same ownership and occupation. The owner’s appeal was dismissed.