Dyer v Dorset CC
Court of Appeal (Civil Division)
04 May 1988
Case Analysis
Where Reported
[1989] Q.B. 346; [1988] 3 W.L.R. 213; (1988) 20 H.L.R. 490; 86 L.G.R. 686; [1989] R.V.R. 41; (1988) 152 L.G. Rev. 992; [1988] E.G. 75 (C.S.); (1988) 85(25) L.S.G. 43; (1988) 132 S.J. 934
Case Digest
Subject: Housing Other related subjects: Employment
Keywords: Boundaries; Right to buy; Secure tenancies
Summary: Curtilage; college lecturer in house some distance from college buildings; whether within curtilage of college buildings; right to buy
Abstract: A house was not within the curtilage of a building unless it was some small or necessary extension of the building. Dorset CC owned Kingston Maurward College of Agriculture. The college comprised an estate of about 100 acres of land with a large house, a mass of outbuildings, a lodge and a subsidiary manor house with stables and outbuildings. In 1952 the council built four houses in an isolated close some 450 yards from the main house. The houses were fenced off from the surrounding land and faced onto the main driveway to the main house. D was employed as a senior lecturer at the college by the council. The council let one of the four houses to D. D claimed to be a secure tenant and entitled to buy the house under the provisions of the Housing Act 1980, as amended by the Housing and Building Control Act 1984. It was common ground that D was so entitled unless it could be said that the house was within the curtilage of a building held by the Council mainly for purposes other than housing purposes and which consisted mainly of accommodation other than housing accommodation, as provided by Sch.1, Part I, para.1(1) and (2) to the Housing Act 1980 as amended. The county court judge held that the house was not within the curtilage of such a building.
Held, dismissing the Council’s appeal, that “curtilage” involves some small and necessary extension to that to which the word is attached. It was a question of fact whether the house was within the curtilage of the college buildings. On the facts, it was not (Methuen-Campbell v Walters [1979] Q.B. 525 applied; Trim v Sturminster Rural DC [1938] 2 K.B. 508, Popper (Paul) v Grimsey [1963] 1 Q.B. 44 considered).
Judge: Lord Donaldson of Lymington, M.R.; Nourse, L.J.; Mann, L.J.
CASE LAW IN ULL:
*346 Dyer v Dorset County Council
Court of Appeal
4 May 1988
[1988] 3 W.L.R. 213
[1989] Q.B. 346
Lord Donaldson of Lymington M.R. , Nourse and Mann L.JJ.
1988 April 18; May 4
Housing—Sale of council houses—Exception to right to buy—Tenant occupying staff house within college grounds—House at distance from other buildings—Whether house within “curtilage” of other relevant buildings—Whether tenant entitled to buy— Housing Act 1980 (c. 51), Sch. 1, Pt. I, para. 1(1)(2) (as substituted by Housing and Building Control Act 1984 (c. 29), s. 2(1) )
The applicant was employed by the council as a lecturer at an agricultural college which they owned. In consequence but not as a term of his employment, he occupied a house let to him by the council within but on the edge of the college grounds. It lay at some distance from any of the college buildings, fenced off from the rest of the grounds but with pedestrian access to them. The applicant claimed the right to buy the house under the provisions of the Housing Act 1980 , as amended. The council denied the claim and resisted his application to the county court for a declaration of his entitlement on the ground that the exception to the right to buy in paragraph 1 of Schedule 1 to the Act 1 applied as the house was within the “curtilage” of a building used for *347 purposes other than housing. The judge, granting the declaration held that since the word “curtilage” related to a small area attaching to a building the house was not within the curtilage of any relevant building.
On appeal by the defendants:-
Held, dismissing the appeal, that in the absence of any definition provided by the Act, “curtilage,” on its true construction, bore its restricted and established meaning connoting a small area forming part or parcel with the house or building which it contained or to which it was attached; that it being a question of fact and degree whether a particular house lay within the curtilage of another building, the applicant’s house being situated so far from any other relevant building or buildings could not be expressed to be within the curtilage of any of them: and that, accordingly, the exception provided by paragraph 1(1) of Schedule 1 to the Housing Act 1980 , as amended, did not apply and the applicant was entitled to exercise the right to buy under the Act (post, pp. 355D, 356F – 357B,F-G, 358A, D-E, 359A-C, D-E).
Methuen-Campbell v. Walters [1979] Q.B. 525 , C.A. applied.
The following cases are referred to in the judgments:
Congreve v. Overseers of Upton (1864) 4 B. &; S. 857
Jepson v. Gribble (1876) 1 T.C. 78
Methuen-Campbell v. Walters [1979] Q.B. 525; [1979] 2 W.L.R. 113; [1979] 1 All E.R. 606, C.A.
Popper (Paul) Ltd. v. Grimsey [1963] 1 Q.B. 44; [1962] 2 W.L.R. 886; [1962] 1 All E.R. 864, D.C.
St. John’s Church, Bishop’s Hatfield, In re [1967] P. 113; [1966] 2 W.L.R. 705; [1966] 2 All E.R. 403
St. Martin-in-the-Fields (Vestry of) v. Bird [1895] 1 Q.B. 428, C.A.
Trim v. Sturminster Rural District Council [1938] 2 K.B. 508; [1938] 2 All E.R. 168, C.A.
The following additional cases were cited in argument:
Markey v. Sanders [1987] 1 W.L.R. 864
Potts (or Riddell) v. Reid [1943] A.C. 1; [1942] 2 All E.R. 161, H.L.(Sc.)
St. George’s, Oakdale, In re [1976] Fam. 210; [1975] 3 W.L.R. 804; [1975] 2 All E.R. 870
APPEAL from Judge Best sitting at Weymouth County Court.
By an amended originating application the applicant, Alan Dyer, made application in the Weymouth County Court for a declaration that, inter alia, he had the right to buy property at 1, Maurward Close, Stinsford, Dorchester, Dorset, from the respondents, Dorset County Council, in accordance with the provisions of the Housing Act 1980 , as amended by the Housing and Building Control Act 1984 . On 27 March 1987 the judge held that the property was not within the curtilage of any relevant building owned by the council within the meaning of paragraph 1 of Schedule 1 to the Act of 1980 and made the declaration sought.
By a notice of appeal dated 20 May 1987 the council appealed on the grounds, inter alia, (1) that the judge erred in law in holding that the applicant’s house did not lie within the curtilage of a building held mainly for purposes other than housing purposes and consisting mainly *348 of accommodation other than housing accommodation and therefore did not come within the provisions of paragraph 1 of Schedule 1 to the Act of 1980; (2) that the judge misdirected himself in holding that the word “curtilage” in paragraph 1 was to be construed so as to exclude the house; (3) that having rightly found that the Dorset College of Agriculture was a single identifiable unit and constituted “a building” to which paragraph 1 applied, the judge should have held that the “curtilage” included all the property within the boundaries of the college; (4) that in giving the word “curtilage” a narrower meaning the judge misdirected himself by relying on definitions such as “a very small area intimately connected with a dwelling house” which were inept in the context of paragraph 1 which applied only to buildings predominantly of a non-domestic nature, and by regarding himself as constrained by previous authorities in which the word “curtilage” was used in another context and in relation to other classes of property.
By a respondent’s notice and supplemental notice dated 4 and 12 June 1987 respectively the applicant sought that the judge’s decision should be affirmed on additional and alternative grounds, inter alia, that the judge erred in holding (if he did so hold which the applicant denied) that the whole college was or was capable in law of being “a building” for the purposes of paragraph 1, notwithstanding that he had held that the applicant’s house was not within the curtilage of the building even as so defined.
The facts are stated in the judgment of Lord Donaldson of Lymington M.R.
Roger Toulson Q.C. and Mark S. Lomas for the council. The case raises an issue of general concern because if, as the judge found, the applicant has the right to buy under the provisions of the Housing Act 1980 , as amended, property owned by the local authority and used as educational and social service institutions could be depleted by other employees exercising the same right in respect of property they occupied. If that occurred the effect on the resources of the local authority and on the efficiency of such institutions would be most serious. The case has therefore significance for local authorities generally in respect of similar institutions for which they are responsible, such as colleges of further education, polytechnics, special schools, children’s homes, community homes and homes for the elderly or disabled.
The issue concerns the proper interpretation of paragraph 1(1) of Schedule 1 to the Housing Act 1980 , as amended by section 2 of the Housing and Building Control Act 1984 . The Act of 1980 introduced a new code governing the position of local authority tenants. Its principal features included the introduction of security of tenure: see section 28 . Although subject to exceptions (see Schedule 3 ), the provision gave similar protection to that applicable to private tenants under the Rent Act 1977 . By section 1 , the Act of 1980 also extended to secure tenants the right to buy which was similar to that existing in the private sector under the Leasehold Reform Act 1967 . However in its original form the Act of 1980 had limited application to county councils. Section 28 *349 applied to such councils only in respect of dwelling houses let by them in the exercise of their reserve powers in relation to housing under section 194 of the Local Government Act 1972 . Under the unamended Act therefore the present applicant would not have been a secure tenant. Even if his employer had been a local authority, as distinct from a county council, he could not have established himself as a secure tenant if (i) the terms of his tenancy provided for its termination on his ceasing to be employed by the landlord, (ii) the property was held by the landlord pursuant to any of its functions under the Education Act 1944 and (iii) the property was within the curtilage of a building held for such purposes. The Housing and Building Control Act 1984 extended the Act of 1980 by section 36(1) so as to apply generally to county councils. The effect of the relevant changes introduced by the Act of 1984 has been to widen the range of dwellings which are subject to the provisions of the Act of 1980. By virtue of paragraph 1 of Schedule 1 to the Act as substituted by section 2 of the Act of 1984 in the case of dwellings held by public bodies other than for “housing purposes” under Part V of the Housing Act 1957 , that is, for purposes other than ordinary housing stock, the right to buy, as distinct from security of tenure, has been excluded where the dwelling is both let to an employee in consequence of his employment and “forms part of, or is within the curtilage of, a building” held by the authority for other purposes.
In the context of this legislative background Parliament must have had regard to the type of institution concerned in the present case, as well as to such other educational and social service institutions. It cannot have been intended to permit the stock of housing held by public bodies as part of such institutions and let to staff in consequence of their employment to be depleted in this way. Public policy militates against the consequences of the judge’s decision because otherwise, if employees have and exercise the right to buy such property, local authorities will have no stock left.
It is accepted that the exceptions to security of tenure provided by the Act of 1980, in its amended form, do not apply to the applicant, and that he is in consequence a secure tenant. But the council contend that on a true construction of paragraph 1(1) of Schedule 1 the premises he claims entitlement to buy lie within the curtilage of a relevant building so as to exclude any such right. The relevant building is for the purposes of paragraph 1(1), as the judge rightly held, the whole of the college, the “college campus,” and not an individual building. This interpretation accords with common sense and with section 6 of the Interpretation Act 1978 that words used in the singular may include the plural unless the context otherwise requires. Compare Potts (or Riddell) v. Reid [1943] A.C. 1 where the word “building,” used in regulations under the Factories Act 1937 , was held to include more than one building: see in particular at pp. 14, 16, per Lord Russell of Killowen, and at p. 27, per Lord Porter. It is also accepted that on the facts as found by the judge the present “building” is clearly one to which sub-paragraph 2 applies in that it is held mainly for purposes other than housing purposes and consists mainly of accommodation other than housing accommodation.
*350
The definition to be given to “curtilage” must depend on its statutory context and the nature and circumstances of the particular subject-matter. Whether or not an area lies within the curtilage of a building will therefore be a question of fact related to the physical features individual to that building: see Methuen-Campbell v. Walters [1979] Q.B. 525 , 543-544, per Buckley L.J. The curtilage referred to in paragraph 1(1) will in its particular context relate to a building held mainly for non-domestic purposes which, as a matter of fact, is most likely to be an educational or social service institution. The test for ascertaining whether the relevant property lies within the curtilage of a building for the purposes of paragraph 1(1) should not therefore be a domestic test. The judge accordingly erred in applying the same criteria as would have been appropriate in a domestic context, and he thereby adopted too narrow a construction of the word “curtilage.” The dictionary definitions suggesting that the word denotes a small area immediately proximate to the relevant building and authorities such as Methuen-Campbell v. Walters [1979] Q.B. 525 on which the judge based this narrower interpretation relate to premises of a different character and arise in a different context: see also Markey v. Sanders [1987] 1 W.L.R. 864 .
Parliament must have intended that the word “curtilage” should bear a meaning which could sensibly be applied to educational and social service institutions. In that way effect could be given to the clear aim of paragraph 1 namely to preserve houses owned by public bodies as part of institutions for letting to their members of staff. On its correct interpretation the curtilage of the building is the curtilage of the whole college as a single identifiable unit, extending to the boundaries of the college and including the property occupied by the applicant. As a consequence of that interpretation any claim by the applicant to buy must fail. Authority for a wide definition of “curtilage” is to be found in Paul Popper Ltd. v. Grimsey [1963] 1 Q.B. 44 , 52, per Lord Parker L.J. In that case the issue was the extent of premises coming within the definition of a “factory” under the Factories Act 1937 . “Factory” was defined as “any premises in which, or within the close, curtilage or precincts of which, persons are employed … [in various manufacturing activities].” The court there held that the factory comprised the whole of the premises within the curtilage of which the manufacturing activity was carried on. In that case “curtilage” was not confined to a small area immediately surrounding a building.
In any event since the Act of 1980 is a disproprietary Act, if there is any doubt as the way in which the language is to be construed, it should be construed in favour of the party who stands to be dispropriated, and not in favour of the party who stands to benefit: see Methuen-Campbell v. Walters [1979] Q.B. 525 , 529, 536, per Goff L.J. and, at p. 542, per Buckley L.J.
John Lofthouse for the applicant. While the Act of 1980 in its original form might have precluded the applicant from being able to buy the house he occupies, the effect of the Act of 1984 had been to move the goalposts so that he is now entitled to do so. The exception provided by paragraph 1(1) to buildings of a type specified in sub-paragraph 2 does not apply in the present case because the property which the *351 applicant occupies neither forms part of nor lies within the curtilage of any relevant building.
In considering the meaning to be given to “the curtilage of a building” it is to be emphasised that “curtilage” is a technical term, and that when Parliament uses such a term, it is to be taken in that sense unless it is plain that some other meaning is intended: see Methuen-Campbell v. Walters [1979] Q.B. 525 , 542, per Buckley L.J. The meaning ascribed to the word, namely that it is a small area immediately surrounding a building, has been established by a line of authority of which the Methuen-Campbell case is the leading example. The effect of such authority is that the curtilage of Blackacre House is that which would pass without special mention on a conveyance of Blackacre House so described.
It is clear that the purpose of the Act of 1980 is to transfer ownership of property pursuant to its provisions where it is physically possible to do so. There is no indication that the word “curtilage” is intended to be taken other than in its technical sense, and the Act of 1980 was passed in the full knowledge of the decision in Methuen-Campbell v. Walters [1979] Q.B. 525 and other authority to the same effect: see also In re St. George’s, Oakdale [1976] Fam. 210 where a small part only of the churchyard was held to be within the curtilage of the church rather than the word applying to an area extending over the whole churchyard. Moreover there is no established or usual alternative meaning which can be ascribed to the word, and if Parliament had intended to give a different meaning it would surely have indicated that intention.
With regard to the interpretation of the word “building,” section 6 of the Interpretation Act 1978 does not apply. The use of the word “curtilage” in its context in paragraph 1 of the Act of 1980, as amended, suggests that attention is to be directed to one specific building. Even if section 6 does apply it does not avail the council since they must still show that the property occupied by the applicant is within the curtilage of the “buildings,” curtilage being used in its customary sense.
Nor can a building mean an institution. Parliament could easily have adopted a form of words to cover and exclude houses within the estate of an institution by reference to area or purpose. Compare, for example the exclusions to security of tenure set out in paragraphs 4, 5 and 9 of Schedule 3 to the Act of 1980, and section 2 of the Act of 1984 which enacts paragraphs 3B, and 4 of Schedule 1 . Compare also section 19(1) of the Act of 1980. Alternatively Parliament could have enabled the Secretary of State to certify that houses in the ownership of a council should be excluded. Compare paragraph 5 of Schedule 1 to the Act of 1980 as enacted by section 2 of the Act of 1984.
Indications that the applicant’s house is not within any relevant curtilage is provided by a number of factors. For example, it has a separate frontage to private access to the road; it has no vehicular access to the college; there is fencing at the back of the house separating it from the college; within the college there are internal roads, fields and a cricket ground between the house and the college buildings; cattle are in some fields, and the fields are fenced; there is a separate sewage system for the houses in Maurward Close; the area contained within the *352 curtilage on the council’s argument would amount to 80 to 100 acres and there is no authority which establishes the use of the word in the context of anything like as large an area; the house is within part of the park, and a park cannot be within a curtilage: see Metheun-Campbell v. Walters [1979] Q.B. 525 , 537, per Goff L.J.
Paul Popper Ltd. v. Grimsey [1963] 1 Q.B. 44 relates to a different area of the law. The wording of the relevant statute is different: the words being “close or curtilage or precincts.” That latter word bears a wider connotation than curtilage. Furthermore the extent of the buildings was not in issue in Popper’s case, since the dispute there related to the character of the premises.
Toulson Q.C. in reply. In Jepson v. Gribble (1876) 1 T.C. 78 the house occupied by the superintendent of an asylum which lay within the grounds was held to be within the curtilage of the asylum. So, here the house occupied by the applicant is within the grounds of an institution, and since the grounds are essential to the functioning of the college, logically the house should lie within the relevant curtilage. Paul Popper Ltd. v. Grimsey [1963] 1 Q.B. 44 is in point since that case was concerned with the extent of the factory, not merely with the character of the premises. However the ecclesiastical cases, such as In re St. George’s, Oakdale [1976] Fam. 210 , do not assist since the test must here be applied to a single unit, namely the college, which is composed of a collection of separate buildings within grounds which are indispensable to its use.
Applying the proper test, the premises occupied by the applicant lie within the curtilage of a relevant building for the purposes of paragraph 1 of the Schedule, and his right to buy under the Act of 1980, as amended, is accordingly thereby excluded.
Cur. adv. vult.
4 May. The following judgments were handed down.
LORD DONALDSON OF LYMINGTON M.R.
Mr. Dyer is a senior lecturer in animal husbandry at the Kingston Maurward College of Agriculture. The college is owned by the Dorset County Council and the council are Mr. Dyer’s employers. The council are also the landlords, Mr. Dyer having, since 1965, been the tenant of one of the lecturers’ houses within the college grounds. Whilst it was not a term of his employment that he should live there, he became its tenant in consequence of that employment and his duties are better performed as a result of his occupation of the property.
Mr. Dyer wants to buy the house which he occupies and claims to be entitled to do so under what is generally known as “the right to buy” legislation, more accurately the Housing Act 1980 , as amended by the Housing and Building Control Act 1984 . This is an eminently reasonable desire. The council, equally reasonably, do not wish to lose the ownership of a house which they may well need in order to provide accommodation for any lecturer who succeeds Mr. Dyer when he retires. They are also gravely concerned that if Mr. Dyer is entitled to buy his house, the same right may be enjoyed by other employees of the council working in educational and social service institutions, such as colleges of *353 further education, special schools, children’s homes, community homes and the like. Not only is the attitude of both parties wholly reasonable, but they have conducted the litigation in a most civilised manner, the point at issue being whether, on virtually unchallenged facts, the legislation on its true construction gives Mr. Dyer any such right.
The college was founded soon after the second world war when the council bought the Kingston Maurward estate, consisting of about 100 acres of land containing Kingston Maurward House with extensive pleasure gardens, a park and a mass of outbuildings, including a lodge house at the entrance to the park, a subsidiary manor house, stables, outbuildings and so forth. The lecturers’ houses, including that let to Mr. Dyer, were built in 1952 specifically to house staff at the college. The estate still retains its character as a single unit, and the lecturers’ houses are on the edge of that unit facing a road, which provides the only vehicular access. They are fenced off at the back, but there is pedestrian access to the remainder of the college grounds through or over the fence by means of gates or stiles.
Judge Best, sitting in the Weymouth County Court, found in favour of Mr. Dyer on 27 March 1987. The council now appeal to this court. Whilst a large number of issues were ventilated in the court below, those still in dispute are much fewer. Indeed, apart from a point on the form of the council’s statutory notice denying Mr. Dyer’s claim to a right to buy, the only remaining issue is whether Mr. Dyer’s house is within “the curtilage” of another building which is a relevant building for the purposes of the Act. The judge held that, whether the relevant building was the manor house itself or that house together with associated college buildings, the concept of “a curtilage” was so limited that Mr. Dyer’s house was not within it. As he put it “curtilage” means
“no more than the immediate area surrounding a building which would normally be the domestic ground which went with the building which would properly be described in the conveyance of the house as the building and passing with it.”
He would have reached the opposite conclusion if the relevant statutory provision had referred to the house being within the curtilage of the college or institution.
Under the Housing Act 1980 in its original form a secure tenant prima facie acquired a right to buy the dwelling house of which he was a tenant. However not all tenants were secure tenants and the right to buy was subject to exceptions. Under the unamended Act Mr. Dyer would have fallen at the first fence, because he was not a secure tenant. This was because county councils were not amongst the bodies whose lettings gave rise to secure tenancies unless, which was not Mr. Dyer’s case, the letting was in the exercise of reserve powers conferred on county councils by section 194 of the Local Government Act 1972 . It is not without interest and, as Mr. Toulson appearing for the council submits, relevance that if Mr. Dyer’s landlord had been a local authority other than a county council, his claim to be a secure tenant would have been defeated if (a), as may well have been the case, the terms of the tenancy provided for its termination on his ceasing to be employed by the *354 landlord, (b), as was the case, his house had been held by the landlord for the purpose of any of its functions under the Education Act 1944 , and (c) his house was within the curtilage of a building held for such purposes: see paragraph 3 of Schedule 3 to the Act of 1980.
The Housing and Building Control Act 1984 amended the Act of 1980 by, as Mr. Lofthouse appearing for Mr. Dyer put it, “moving the goal posts.” County councils were included in the category of local authorities whose lettings generally constituted secure tenancies, although there were still exceptions. Thus Mr. Dyer would not have become a secure tenant if his contract of employment had required him to occupy his house for the better performance of his duties: see paragraph 2(1) of Schedule 3 , or if he had been a fireman whose contract of employment required him to live in close proximity to a particular fire station: see paragraph 2B. But Mr. Dyer was not a fireman and his contract of employment did not require him to occupy his house for the better performance of his duties, although it had been let to him in consequence of the fact that he was in the employ of the council and in the light of the fact that he would then better be able to perform his duties. Accordingly, as is now accepted, following the enactment of the legislation of 1984, Mr. Dyer became a secure tenant.
This, however, did not of itself give Mr. Dyer the right to buy. Changing the metaphor from ball games to horse racing, one of the fences which, as the council contend, would have thrown Mr. Dyer had he sought the right to buy under the Act of 1980 in its original form, namely, that his house was within the curtilage of another building held for the purposes of the landlord’s functions under the Education Act 1944 , re-appeared in a different form as one of the exceptions to the right to buy contained in Part I of Schedule 1 . For present purposes it suffices to set out paragraph 1(1) and (2) of that Schedule, which in the Schedule’s amended form are in the following terms:
“(1) The dwelling house either forms part of, or is within the curtilage of, a building to which sub-paragraph (2) below applies or is situated in a cemetery and (in either case) the dwelling house was let to the tenant or to a predecessor in title of his in consequence of the tenant or predecessor being in the employment of the landlord or of a body specified in sub-paragraph (3) below. (2) This subparagraph applies to a building if the building or so much of it as is held by the landlord – (a) is held mainly for purposes other than housing purposes; and (b) consists mainly of accommodation other than housing accommodation; and in this sub-paragraph ‘housing purposes’ means the purposes for which dwelling houses are held by local authorities under Part V of the 1957 Act or purposes corresponding to those purposes.”
It is accepted by both parties to the appeal that (a) Mr. Dyer’s house does not form part of any other building and (b) it was let to him in consequence of his employment by his landlords, the council. Mr. Dyer therefore has a right to buy his house unless that house is within the curtilage of a building which is held by the council mainly for purposes other than housing purposes and consisting of accommodation other *355 than housing accommodation. It is also common ground that none of the buildings constituting the Kingston Maurward College are held for housing purposes as defined. 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.
The judge was familiar with Kingston Maurward College, but we can, I think, obtain a fairly accurate idea of the layout from the maps and plans with which we have been provided. There are a number of buildings clustered around and to the east of Kingston Maurward House, the great house of the old estate and the headquarters of the college. To the west lies the principal’s house and six staff houses, all within 200 to 400 yards of Kingston Maurward House. A little further to the west there is Stinsford Dairy, which was one of Mr. Dyer’s principal responsibilities. The four lecturers’ houses are about 450 yards to the north-west of Kingston Maurward House, forming an isolated close. The remainder of the estate is not built on and consists of a driveway from the public road fronting the lecturers’ houses to Kingston Maurward House and fenced fields.
Parliament has not seen fit to define the word “curtilage” in this statutory context and we have to have regard to dictionaries and to such authorities as to its meaning as existed in 1980 and 1984.
The Shorter Oxford English Dictionary defines the word as “a small court, yard, or piece of ground attached to a dwelling house, and forming one enclosure with it.”
In Jepson v. Gribble (1876) 1 T.C. 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 to the asylum than are the lecturers’ cottages to any other college buildings. Kelly C.B. said, at p. 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.”
Amphlett B., agreeing with him, referred to the judgment of Blackburn J. in Congreve v. Overseers of Upton (1864) 4 B. & S. 857 , 871, and said, at p. 81:
“But with regard to the medical superintendent, Blackburn J. says, ‘The statute expressly directs that he shall be resident in the asylum’; and then Blackburn J. says, ‘Mr. Welsby argued that the words “in such asylum” must be construed to mean strictly within the curtilage of the building where the patients sleep at night, a *356 place which might be so laid in an indictment for burglary. But that is not a reasonable meaning of those words. They mean that his residence must be in grounds appropriated to the asylum, so as to be reasonably within it. Now, looking at the position of the building as described in this case, we cannot say that it was not in the asylum, if we once assume that it need not be under the actual roof.’ For the same reason here, inasmuch as it is necessary for the proper conducting of the asylum that there should be a resident medical officer, whether that medical officer is accommodated by private rooms or by a house, and whether that house happens actually to form part of the building or not, it is a necessary adjunct to the asylum, and therefore it is a part of the asylum, and as the asylum is exempted, I think that this house must be exempted.”
In Vestry of St. Martin-in-the-Fields v. Bird [1895] 1 Q.B. 428 this court had to decide whether a number of separate houses let to different people with an open space or passage running between the two rows of houses was either one building or could properly be called “premises within the same curtilage.” It held that they could not.
There are also a number of ecclesiastical authorities to the effect that a curtilage must be near a house and must “belong” to it: see In re St. John’s Church, Bishop’s Hatfield [1967] P. 113 .
Finally there is Methuen-Campbell v. Walters [1979] Q.B. 525 . It was a “right to buy” case under the Leasehold Reform Act 1967 , the issue being whether a paddock at the bottom of, and fenced off from, a garden was to be enfranchised with the house and garden. That Act did not use the word “curtilage,” but provided instead ( section 2(3) ):
“the reference to premises is to be taken as referring to any garage, outhouse, garden, yard and appurtenances which at the relevant time are let to [the tenant] with the house and are occupied with and used for the purposes of the house or any part of it by him or by another occupant.”
Goff L.J., at p. 535, held that the decision of this court in Trim v. Sturminster Rural District Council [1938] 2 K.B. 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 L.J. 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 square 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 would be held to fall within the curtilage of the messuage. *357 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. … Thus a conveyance of The Gables without more, will pass everything within the curtilage to which that description applies, because every component part falls within the description.”
Mr. Toulson rightly urges us to bear in mind that this is an Act which compulsorily transfers property from one person to another. It should therefore be so construed as to confine its effects to those clearly intended by the legislature. In this context he calls attention to the fact that under the Act of 1980, in its original form, where the exemption related to the existence of a secure tenancy rather than to the right to buy, Parliament, in referring to the dwelling house being within the curtilage of another building, had educational and social service institutions in mind: see Schedule 3, paragraph 3. In his submission “curtilage” in that and in the present context must necessarily refer to a much larger area than would otherwise be the case.
Mr. Toulson also referred us to Paul Popper Ltd. v. Grimsey [1963] 1 Q.B. 44 where the issue was whether the whole of the defendants’ premises were a factory for the purposes of the Factories Act 1937 . Lord Parker C.J., reading the judgment of the Divisional Court, said, at p. 52:
“We have come to the conclusion that the premises to be considered in this case are all the rooms occupied by the defendants, and not merely the glazing room and dark room. The definition of ‘workshop’ in the Factory and Workshop Act, 1901 , directed attention to individual rooms in a building, but the definition of ‘factory’ in both Acts seems to us, prima facie, to refer to the whole of the premises within the curtilage of which the manufacturing activity is carried on, and, although we have not been referred to any authority which in terms so decides, this seems to be implicit in many of the earlier cases.”
I do not think that this assists him. “Curtilage” seems always to involve some small and necessary extension to that to which the word is attached. In Paul Popper Ltd. v. Grimsey the court was concerned with the curtilage of a factory and it is not surprising that it was held to comprise the grounds of the factory. In Jepson v. Gribble, 1 T.C. 78 , it was, in effect, the “curtilage of the asylum.” Similarly, if the words with which we are concerned had been the “curtilage of the college,” I have little doubt that, despite the fact that Mr. Dyer’s house is on the edge of the college “campus” and is divided from it by a fence, it would rightly have been held to have been within that curtilage. Certainly the judge would have so held. But these are not the words. We have to find that Mr. Dyer’s house lies within the curtilage of another college building or *358 buildings. Giving the fullest effect to Mr. Toulson’s submissions and to the authority on which he relies, I am quite unable to find that Mr. Dyer’s house lies within the curtilage of any other college building or collection of college buildings. He therefore has a right to buy.
I would dismiss the appeal.
NOURSE L.J.
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:
“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.”
Two comments may be made about that definition as it applies today. First, the kind of ground most usually attached to a dwelling house is a garden. Secondly, it is permissible to refer to the curtilage of a building which is not a dwelling house.
The authorities which were cited to us demonstate that an area of land cannot properly be described as a curtilage unless it forms part and parcel of the house or building which it contains or to which it is attached. That proposition, which is consistent with the notion that, in the absence of actual enclosure, the land is regarded by the law as forming one enclosure with the land or building, is most clearly and authoritatively stated in the passage which Lord Donaldson of Lymington M.R. has quoted from the judgment of Buckley L.J. in Methuen-Campbell v. Walters [1979] Q.B. 525 , 543-544, where it is also made clear that the meaning of “curtilage” has never escaped from the influence-of the diminutive suffix.
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 which no conveyancer would extend beyond that occupied by the house, the stables and other outbuildings, the gardens and the rough grass up to the ha-ha, if there was one. Nor do I myself think that Mr. Dyer’s house could properly be described as being within the curtilage of the college. It does not form part and parcel of the college buildings. Not only is it entirely separate; it is removed from them at some considerable distance. It does not even form part and parcel of the adjoining houses in Maurward Close, each of which has its own curtilage.
Although I might not go so far as to say that the word “curtilage” has acquired the status of a term of art, it is certainly the next best *359 thing. I agree with Mann L.J. that Parliament must be taken to have had regard to its well-established and restricted meaning. While I fully understand and respect the council’s argument that Parliament must have intended that the exception from the right to buy should be wider in cases such as this, it cannot be said that the result is unworkable or absurd.
For these reasons, I think that the conclusion at which the judge arrived in his full and careful judgment was correct and I too would dismiss this appeal.
MANN L.J.
I agree that this appeal must be dismissed. The only issue in the case is whether Mr. Dyer’s house is within the curtilage of a building to which paragraph 1(2) of Schedule 1 to the Housing Act 1980 , as amended by the Housing and Building Control Act 1984 , applies. 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 Methuen-Campbell v. Walters [1979] Q.B. 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.
It was argued on behalf of the council that there was a curtilage to the college. We are not however concerned with the grounds of an institution. Had Parliament so intended, it could readily have provided so. It did not. We are concerned simply with the ground within the curtilage of a building. I find it quite impossible to say that Mr. Dyer’s house is within the curtilage of a building to which the relevant paragraph applies.
Representation