Incorporating Adjacent Land into Curtilage

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    Incorporating Adjacent Land into Curtilage

    As discussed in a recent thread, I am looking at the possibility of purchasing a very small piece of land (approx. 0.02 acres) adjacent to our property.

    My intention is to incorporate this land into our curtilage. It 'fits naturally' into our existing boundary and is not agricultural land. There is a strip of grass at the side of the land that members of the public sometimes walk through, although it is not an official footpath.

    As discussed in the aforementioned thread, the landowner's solicitors are trying to register the land (it is currently unregistered). What is actually registered will be subject to how the original paper deeds are interpreted, and so this may or may not include the grass strip at the side (I am not involved in this process and thus not sure what the final result will be).

    My question: How difficult is the process of incorporating land into one's curtilage, and what are common difficulties and points of objection?

    The only sticking point that comes to mind here is the potential inclusion of a strip through which the public walk in the land sale. If this were to be included, we'd probably not apply for this to be included in the curtilage for obvious reasons. But then we'd be slicing the land up and just incorporating the bit we want - I'm not if Planning would take issue with this.




    #2
    "Grass strips" can be a bit of a problem. Even if you can show title to them the Land Registry may still exclude them from the red edging on the title plan. That is not conclusive that the strip is not part of the adjoining property as the red edging only shows the general boundary.

    You need to be careful about incorporating into your curtilage strips of land "that members of the public sometimes walk through" as it may be part of a public footpath even if not shown on the definitive map kept by your local authority.

    Comment


      #3
      Thank you Lawcruncher.

      As mentioned, if the sale was to include the grass strip, we would not be applying to have the strip included in our curtilage; as you mention, this is likely to be problematic. This is what I meant by chopping the land up; the grass strip is excluded from our curtilage (but still owned by us).

      What I do not want to happen is for us to purchase everything (grass strip included) and then be refused permission to incorporate only part of the land into our curtilage. This would force us to include the grass strip in the curtilage application, which, as you say, is likely to cause problems.

      Another option is that I could push to have the grass strip excluded from the sale altogether. However, it feels like there are benefits to owning 'both sides of the fence'.

      Assuming the grass strip situation is sorted out, what are common difficulties / points of objection for incorporating land into curtilage?





      Comment


        #4
        The word "curtilage" has a been the subject of a great many legal cases which have defined this as an area of land immediately adjacent to a building.

        What you are referring to is a change of use of land to be used as part of a residential garden, because this land will never be part of the curtilage that current exists as the land in front of, to the side of, or behind your existing dwelling.

        A full planning application for a change of use of the land to be used as residential garden will be considered by the local planning authority against its planning policies set out in the Local Plan.
        Often if a change of use is granted, there will be conditions included that prevent further buildings being erected on the land. The fee for such an application is £462.

        Permitted development rights as set out in Schedule 2, Part 1 Class E of the Town and Country Planning (General Permitted Development) (England) Order 2015 only apply to outbuildings to be erected within the curtilage of a dwellinghouse, whereas the right to erect fences to enclose the land you intend buying falls under Part 2, Class A.

        No one can realistically tell you whether planning permission will be granted, as this often takes into consideration the extent of the land shown on the plan that accompanies the planning application and its potential effect on the neighbouring properties.

        As an example, on behalf of all seven property owners I made a single planning application to add 15 metres depth of agricultural land behind all of our properties before we all completing the purchase from the farm owner.
        That application was granted subject to some restrictive conditions regarding building on the land and fencing it with an appropriate type of fence.

        Four people on the other side of our village street made a similar application to add farmland to their gardens two years later, but that was refused and a subsequent appeal against the refusal was dismissed based on policies written in the same local plan.

        Then 10 years later three other property owners in the same village applied to add 20 metres depth of farmland to their gardens.
        The only permission granted was to allow 10 metres to be used as residential gardens, so that the other 10 metres in depth that had already been bought from the local farmer can only be used for agricultural purposes, because no change of use was granted.

        As the American's say "Go figure!" since this was in the same village where the Local Plan had the same policies printed that were to be considered for each of those planning applications.

        If you buy the land prior to confirming that planning will be granted for a change of use to residential garden for all of it, be prepared to decide what type of agricultural use you can make of it, unless there is already a planning use class that applies to it.

        In your case "Buyer Beware" is whether you can make use of the land in the way you want to.

        Comment


          #5
          Thanks Pilman.

          Our only desire is to erect a fence/wall along the edge of the land (flush with the wall that lies along our current boundary). We do not wish to build anything else on the land.

          Originally posted by pilman View Post
          What you are referring to is a change of use of land to be used as part of a residential garden
          Yes this is correct. So the red edging of our deeds would not be modified? If we ever sold our property, would these have to be sold as two separate entities?

          Originally posted by pilman View Post
          If you buy the land prior to confirming that planning will be granted for a change of use to residential garden for all of it
          Would the local planning authority be able to confirm/advise this prior to purchase?

          Comment


            #6
            If we ever sold our property, would these have to be sold as two separate entities?
            There would definitely be two separate titles, as was the situation when the seven neighbours bought the additional farm land behind our houses in 2003.

            My back garden's separate title has a number of restrictive covenants referred to in the register because it was a County Council who owned the farm behind the houses and it's solicitor insisted on certain covenants being included in the sale.

            The original residential land had no such restrictions, so when the time comes to sell the whole property, which now has the appearance of a single house with a large landscaped garden, there will be two separate titles that will be transferred as a single transaction with one part subject to the restrictions included in the 2003 transfer deed.

            In my experience that is quite a common occurrence when additional land has been added to an original plot.

            Would the local planning authority be able to confirm/advise this prior to purchase?
            The local planning authority will normally offer pre-application advice, although there is often a fee to be paid for that service.

            Such advice will always contain a statement that this does not guarantee a planning application will be successful, but it does give an indication that the planning officer delegated the task of responding has a personal opinion about whether a full planning application would be successful.

            I mention that because in a worse case scenario a full application could result in objections from neighbouring property owners that will require the matter to be decided by the Planning Committee.

            That is when politics can come into play rather than a straight forward planning decision.

            Normally a pre-application request will be dealt with within 28 days, while a full application, which will receive a definitive answer, has to be dealt with within 8 weeks.

            Comment


              #7
              Many thanks for your help Pilman.

              Out of interest, if permission for a change of use was refused, what is to stop me putting a fence/wall along the edge of the land and using it like a garden, at least in the context of making it look nice and planting flowers, etc? One side of the land is joined to my back yard anyway. When is the threshold for 'residential garden' actually crossed? I have no intention of building on the land, erecting a patio, etc.

              The local planning authority will normally offer pre-application advice, although there is often a fee to be paid for that service.

              Originally posted by pilman View Post
              The local planning authority will normally offer pre-application advice, although there is often a fee to be paid for that service.
              I have found the fee on my local planning authority's website, it doesn't look too bad (I hope I'm looking in the right place).

              Would they be able to offer pre-application advice even before I have bought the land, and, as such, would actually be owned by someone ese at the time of the pre-application advice?

              Comment


                #8
                Out of interest, if permission for a change of use was refused, what is to stop me putting a fence/wall along the edge of the land and using it like a garden, at least in the context of making it look nice and planting flowers, etc?
                Nothing to stop you, but the local planning authority could begin enforcement proceedings claiming that there had been a breach of planning control, which often happens if a neighbour contacts the LPA to complain about the way you have developed the land by changing its use.

                Using any land for agricultural purposes is not development, so a vegetable growing area immediately behind your existing garden is OK, but setting out flowers or shrubs etc. will be, since that is a change of use unless the land is currently used as part of a garden owned by someone else.
                You stated in the original post that it is not agricultural land, so what is its current use?

                Since there is a fee for pre-application advice you will still need to pay the full planning fee for a formal application even if the planning officer tells you it is highly probable that planning permission will be granted. You may as well pay the full fee and make an immediate application once you read the local plan policies regarding adding land to an already existing residential garden.
                That self-help is just as sensible as making a pre-application.

                Comment


                  #9
                  Originally posted by pilman View Post
                  You stated in the original post that it is not agricultural land, so what is its current use?
                  The land is currently not being used at all. It was used by a local stonemason up until the 1970s or 1980s, and has what I would describe as a semi-derelict (walls OK, roof caved in) stonemason's workshop (about 15 m^2 in size) on it. The workshop is surrounded by grass and overgrown shrubs etc which form the land attached to the workshop. It has definitely never been used for 'agricultural purposes'.

                  Originally posted by pilman View Post
                  Since there is a fee for pre-application advice you will still need to pay the full planning fee for a formal application even if the planning officer tells you it is highly probable that planning permission will be granted.
                  I would like to know pre-purchase whether permission would probably be granted or not. According to my local planning authority's website, the pre-application advice is just a few hundred £, which seems like money well spent, as it may influence my decision to purchase and/or my offer price. I don't think I'd really want to pay the "full planning fee for a formal application" prior to purchasing the land, no?

                  Comment


                    #10
                    I think the main issue at the moment is that I'm not entirely sure what the current classification of the land actually is. Definitely not agricultural, probably not paddock, obviously not residential. As mentioned, it is host to an old stonemason's workshop.

                    Comment


                      #11
                      Pilman, do you know how I would ascertain the current 'classification' of the land? Or would this be subjective interpretation by a planning officer?

                      Comment


                        #12
                        The land is currently not being used at all. It was used by a local stonemason up until the 1970s or 1980s, and has what I would describe as a semi-derelict (walls OK, roof caved in) stonemason's workshop (about 15 m^2 in size) on it. The workshop is surrounded by grass and overgrown shrubs etc. which form the land attached to the workshop. It has definitely never been used for 'agricultural purposes'.
                        how I would ascertain the current 'classification' of the land? Or would this be subjective interpretation by a planning officer?
                        From the first description you posted, my own subjective interpretation is that currently there is no lawful use for the land.

                        That this is a previously developed brown-field site occupied by a disused commercial building would imply that an application to change its use to become part of a residential garden would be an acceptable proposal that would allow this disused land to become an improvement on its current appearance.

                        The other use for the land would be for agricultural use, since that use does not involve development.
                        That is why use of any land for agricultural purposes is the ultimate fall back situation whatever the previous use had been.

                        In summary, it is doubtful that an attempt by a future owner to reinstate the land to be used for commercial purposes would be acceptable to the local planning authority, but an application to use the land as part of a neighbouring residential garden would be more acceptable.

                        Comment

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