QUEEN'S BENCH DIVISION
B e f o r e :
|(1) FIRST SECRETARY OF STATE|
|(2) TENDRING DISTRICT COUNCIL||Respondents|
Smith Bernal Wordwave Limited
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MISS S DAVIES (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the First Respondent
Crown Copyright ©
"A.1(d) It would involve development within the curtilage of, or to a gate, fence, wall or other means of enclosure surrounding, a listed building."
"18. My understanding of the way in which the land in the vicinity of the Hall is used is based on what I saw during my visit. Whatever use the land is put to it is evident that Mr Lowe wishes to enclose at least part of it. In a letter to the Council dated 13 August 2001 Mr Lowe states that 'This fence (the fence subject to the notice) is necessary for our safety and the security of the property in order to stop the complainers ripping up newly planted trees, cutting down our shrubs, digging holes on our property, hiding in the woods near our house armed, abusing our employees.' In my view the reasons given by Mr Lowe for erecting the fence are connected with an attempt (successful or not) to enclose the land within his ownership. The reasons given for erecting the fence suggest to me that it is either defining or lying within the curtilage - it is most unlikely that it is outside the curtilage."
"A small court, yard, garth or piece of ground attached to a dwelling house, and forming one enclosure with it, or so regarded by the law; the area attached to and containing a dwelling house and its outbuildings."
In the Shorter Oxford Dictionary it is defined as:
"A small court, yard, a piece of ground attached to a dwelling house, and forming one enclosure with it."
A more succinct definition is given in Chambers 20th Century Dictionary:
"A court attached to a dwelling house."
The Universal Dictionary defines it as:
"The enclosed land surrounding a house or dwelling."
"Three factors have to be taken into account in deciding whether a structure (or object) is within the curtilage of a listed building ... whatever may be the strict conveyancing interpretation of the ancient and somewhat obscure word 'curtilage'. They are (1) the physical 'layout' of the listed building and the structure, (2) their ownership, past and present, (3) their use or function, past and present. Where they are in common ownership and one is used in connection with the other, there is little difficulty in putting a structure near a building or even some distance from it into its curtilage."
"Thus the sole issue is whether Mr Dyer's house is or is not within the curtilage of another building or, by the application of section 6 of the Interpretation Act 1978, of more than one other building. This is a question of fact and degree and thus primarily a matter for the trial judge, provided that he has correctly directed himself on the meaning of 'curtilage' in its statutory context."
At letter D:
"Parliament has not seen fit to define the word 'curtilage' in this statutory context and we have to regard to dictionaries and to such authorities as to its meaning as existed in 1980 and 1984.
His Lordship then cites from the Shorter Oxford Dictionary, as I have done:
"In Jepson v Gribble (1876) 1 TC 78 the issue was whether the house occupied by the medical superintendent of an asylum was part of the asylum. As in the present case, the house fronted on to a public road and had access from the back to the asylum itself, although it would appear that it was very much closer than to the asylum than are the lecturers cottages to any other college buildings. Kelly CB said, at page 80:
'it is within the walls; it is part of the curtilage, in the language of the old law, and it is for the residence of a person whose attendance may be required at any moment, and who ought therefore to be at hand, and for that purpose it is put within the grounds; it is a part of the premises themselves, and with a ready, rapid, and almost instantaneous communication with the building which contains the lunatics.'"
I then turn to page 356D:
"There are also a number of ecclesiastical authorities to the effect that a curtilage must be near a house and must 'belong' to it ..."
Reference is made to the case of Methuen-Campbell v Walters  QB 525 19. At letter F Lord Donaldson continues:
"Goff LJ, at p 535, held that the decision of this court in Trim v Sturminster Rural District Council  2 KB 508 confined 'appurtenances' to the curtilage of the house and in the following pages of his judgment expressed the view that the curtilage of a house is narrowly confined to the area surrounding it and did not extend to this paddock. Buckley LJ said, at pp 543-544:
'In my judgment, for one corporeal hereditament to fall within the curtilage of another, the former must be so intimately associated with the latter as to lead to the conclusion that the former in truth forms part and parcel of the latter. There can be very few houses indeed that do not have associated with them at least some few squares yards of land, constituting a yard or a basement area or passageway or something of the kind, owned and enjoyed with the house, which on a reasonable view could only be regarded as part of the messuage and such small pieces of land will be held to fall within the curtilage of the messuage. This may extend to ancillary buildings, structures or areas such as outhouses, a garage, a driveway, a garden and so forth. How far it is appropriate to regard this identity as parts of one messuage or parcel of land as extending must depend on the character and the circumstances of the items under consideration. To the extent that it is reasonable to regard them as constituting one messuage or parcel of land, they will be properly regarded as all falling within one curtilage; they constitute an integral whole ...'"
Then finally at letter G:
"'Curtilage' seems always to involve some small and necessary extension to that to which the word is attached."
"I agree. The derivations mentioned in the Oxford English Dictionary (French, courtil - a little court or garth; Italian, corte; Mediaeval Latin, cortile or curtile - a court or yard) rather suggest that 'curtilage' started life as a word describing a small area enclosed by walls or buildings, the smallness of the area being emphasised by the diminutive suffix 'age', as in village. The need for physical enclosure of the area having disappeared in current usage, the dictionary definition, which I quote in full, is for most present-day purposes adequate."
That is the quotation to which I have already referred from the Oxford English Dictionary.
"While making every allowance for the fact that the size of a curtilage may vary somewhat with the size of the house or building, I am in no doubt that the 100 acre park on the edge of which Mr Dyer's house now stands cannot possibly be said to form part and parcel of Kingston Maurward House, far less of any of the other college buildings. Indeed, a park of this size is altogether in excess of anything which could properly be described as the curtilage of a mansion house, an area beyond which no conveyancer would extend beyond that occupied by the house, the stables and other outbuildings, the garden and the rough grass up to the ha-ha, if there was one."
"The word 'curtilage' is a term of art and, in employing it, the draftsman and Parliament must have had regard to its meaning as such a term. Its meaning as a term was discussed in Metheun-Campbell v Walters  QB 525. It appears from that decision that the meaning of the word 'curtilage' is constrained to a small area about a building. The size of the area appears to be a question of fact and degree."