Part 5: Appendix 1 - Guidance on how to determine domestic curtilage

Guidance on how to determine domestic curtilage.

Guidance on how to determine domestic curtilage

Because it will be a matter of fact and degree in every case, it is possible that there may be no precise answer. However, a sound starting point will be to establish the facts on the ground and to consider them in relation to the following:

  • Identification of the domestic curtilage

This can be achieved by noting the presence of fences, hedges, ditches, walls of other buildings, roads, drives and other access ways. An extract from an Ordnance Survey plan [at a scale of 1:2500, or larger] will help in this respect, especially as they generally mark a wide variety of curtilage and boundaries.

A useful method for identifying the curtilage whilst inspecting a property is:

  • start with one’s back against each elevation successively and walk forward in a straight line until an identifiable boundary is reached

  • depending on circumstances, this may need to be done more than once for each elevation

  • describe each boundary reached, i.e. is it a wall, a fence, a pond, etc. What is it made of/ how is it constructed? What lies beyond it?

  • mark and annotate those features on a plan and draw in a putative domestic curtilage

It is the ‘natural’ curtilage - within any property fences or hedges may be erected for security, privacy or ornamental purposes – that is being sought, so it is important to define the curtilage on the basis that, if one were acquiring the dwelling, what would naturally fall with the demise without any further words being added. 

This natural curtilage may change over time - this works both ways, as it may become more extensive or it may reduce in size. 

  • Layout

The general disposition of the dwelling and any appurtenant buildings should be marked on the plan. However, whilst propinquity [see below] and layout are inter-linked, they are two different factors to be taken into account. 

  • Propinquity

Although very close physical proximity is not necessarily required, the closer together two or more buildings are to each other, the more likely it is that any one may be within the curtilage of another.

  • Physical linkage or connection

The extent of the physical link or connection between the two buildings should be noted. It may be that a property, which is contiguous with another, is more inherently capable of being within the same ‘curtilage’ of the other, particularly if it is possible to pass internally from one to the other. However, neither of these characteristics is essential.

  • Shared Facilities or Services

The extent to which two buildings share facilities should be noted, e.g. common access, main services, etc. The more things that are shared, such as rights of access, and are exclusive to the owners or occupiers of the buildings in question, the more likely these premises are to be within the same curtilage.

  • Common History

The extent to which there is any common history between the two buildings, e.g. constructed at the same time or a long-running record of connected use.

Buildings might be regarded as being within the curtilage of a principal house if they were constructed at the same time as part of a traditional estate.

However, it is considered the curtilage of a traditional farm house on a working farm, surrounded by buildings used for agricultural purposes will only have a restricted curtilage to the living accommodation and ancillary domestic use buildings. See not only s.66(1) but also the agricultural exemption provisions in paragraphs 3 and 5 of Schedule 5 to LGFA 1988.

  • Relative Size

The relative size and/or nature of the dwelling and any appurtenance should be noted. Is one ancillary to the other? Is one building a clear ‘hub’ and the other a ‘satellite’ to it?

It is normally the case that ancillary structures will be smaller than the related principal dwelling.

  • The Nature and Character of the Dwelling

A mansion house or a substantial former farm house is more likely to have large buildings as appurtenances than a semi-detached house where stables have been constructed in extended garden.

  • User

The actual use of the land and buildings under consideration is an important ingredient of the overall judgement which needs to be formed, as the nature of that use will have a bearing on whether or not the land/property in question can be considered an ‘appurtenance’ to another building. Accordingly,”when considering all the facts it becomes relevant to consider the purpose for which the relevant buildings are occupied and the use to which the apparent appurtenance is put”. Hence, if the owner has in fact put the property in contention to such uses that it cannot be properly be described any longer as an ‘appurtenance’, then that conclusion of fact is properly reached.

However there is nothing to prevent buildings within the curtilage not being an appurtenance.

Buildings used as farm buildings will not need to be considered as to whether they are within the curtilage, as they will likely to be exempt from rating as part of the farm. In the case of former farm buildings consideration has to be given to actual use.

  • Title Deeds & Land Registration

Reference to the title Deeds or Land Registry Listing may assist in defining the natural curtilage but this is not far from being a definitive test.

NB The above list is only a tool for analysis and to assist the decision making process.

The weight to be placed on each of the factors will be a matter of fact and degree in any given case and all will need to be balanced when reaching a conclusion. Each case can only be decided on its own facts – comparisons are not helpful and the Courts are the final arbiter.  There is no guarantee that different valuation tribunals or different UT(LC) Members would make the same decision in any particular instance.