The recent case of Challenge Fencing Ltd v DHCLG [2019] EWHC 553 (Admin) has provided a useful reminder of the interpretation of the concept of "curtilage" and for the first time addressed it in the context of a non-listed building.

How to define the curtilage of a building? First and foremost it is always a question of fact and degree, however, the following established guidelines have been re-stated as relevant -

  1. The decision maker in any circumstances will need to exercise judgment, within normal public law principles (reasonableness, proportionality and relevance);
  2. Although not a defining factor, the relative size between the building and its claimed curtilage is a consideration;
  3. Other factors should be taken into account:
    1. The physical relationship or layout between the building and the structure or object that is claimed to be within its curtilage;
    2. The ownership of both, both current and historic;
    3. Their use and/or function, both current and historic.

The case confirms that the pre-existing tests are applicable to non-listed buildings and the Court is not generally looking to rewrite the rules surrounding the established principles. The question of curtilage continues to be a relevant consideration, not only in a listed building context, but increasingly when seeking to rely on permitted development rights as in the Challenge Fencing case.