Permitted development on land you share with a neighbour

Permitted development rights attach to land and buildings, not to the people who own them. So a right can exist in the General Permitted Development Order while you have no lawful way to exercise it, because the land is shared, a neighbour holds a right of way over it, or the strip you want to build on is not within the curtilage of your dwellinghouse at all. Permitted development on shared land fails on private law far more often than it fails on planning law, and the two questions have to be answered separately.

The right exists in the order, not in your title deeds

Schedule 2 Part 1 of the Town and Country Planning (General Permitted Development) (England) Order 2015 grants rights in relation to a dwellinghouse and its curtilage. It says nothing about who owns the curtilage, and a grant of planning permission, whether express or by the order, never authorises trespass or the breach of a covenant.

That produces the situation homeowners find hardest to accept. You can be entirely within Class A limits on depth, height and materials, and still be unable to build, because half the ground you need belongs to someone else or is subject to a right you cannot interfere with.

The reverse also happens. You may own the land outright and have no permitted development right, because the use or the building type is excluded. Both checks are needed, in that order.

A flat is not a dwellinghouse

This catches conversion investors regularly. Part 1 of Schedule 2 does not apply to a building containing one or more flats, or to a dwelling that is a flat. So where a house has been converted into two flats, the Part 1 rights that applied to the house have gone, for both flats and for the whole building.

A communal garden serving four flats therefore carries no Part 1 right to put up an outbuilding under Class E, no right to a rear extension under Class A, and no right to a hard surface under Class F. Every one of those needs a planning application, whatever the ownership arrangement says, and that is a planning answer rather than a property one. The analysis of what counts as one planning unit is set out in garden offices and the separate planning unit problem.

Where a block is held through a management company with a lease granting exclusive use of a garden to a ground floor flat, the exclusive use does not restore the right. It only decides who could apply.

Shared drives and rights of way

A shared driveway is usually one of two things. Either the strip is owned by one party with a right of way granted to the other, or it is divided down the middle with mutual rights over each half. The deeds and the Land Registry title plan will say which, and it matters a great deal for what you can do.

Resurfacing is the common flashpoint. Laying a new hard surface within the curtilage of a dwellinghouse can fall within Class F, with the permeability and run-off conditions that attach to front gardens, as set out in front garden paving, permeable surfaces and Class F. But a right of way carries an obligation not to interfere substantially with its exercise, so changing levels, narrowing the running surface, installing gates or adding a step can breach the easement even where Class F is satisfied.

Gates are the sharpest version of this. A gate across a shared drive will often sit within Class A or the gates, walls and fences class, and will still be unlawful as against the neighbour who holds the right of way.

Where the curtilage actually ends

Curtilage is a question of fact, decided on the physical and functional relationship between land and building rather than on the registered title. Land can be in your ownership and outside your curtilage, which removes the Part 1 right over it.

Typical examples include a paddock bought from a neighbouring field and fenced into the garden years later, a strip of former back lane, and amenity land retained by a developer and maintained for the whole estate. Where the boundary is disputed or the history is murky, the resolution route is a certificate rather than an argument. An application under section 192 of the Town and Country Planning Act 1990 for a lawful development certificate for proposed use or development puts the question to the authority before you spend money, and a refusal tells you to apply for planning permission instead.

The 50 per cent limit on buildings and enclosures within the curtilage interacts with all of this, since the measure is taken over the curtilage as it stands, not over the registered title. That calculation is worked through in the 50 per cent curtilage rule for garden outbuildings.

Covenants, easements and the statutes that help

Private rights sit outside the planning system and bind you regardless of consent. The ones that come up most are restrictive covenants limiting building on part of a plot, easements for drainage and services, rights of light, and rights of way.

Two statutes are worth knowing because they give a route through rather than a reason to stop.

Neither gives you a planning right, and neither cures a covenant. A party wall award lets you build. It does not tell you whether you needed permission.

The application form will ask you to say so

Where a planning application or a prior approval is needed, the ownership certificates under the Development Management Procedure Order 2015 and section 65 of the 1990 Act require you to state who owns the application site and to serve notice on any other owner. Signing Certificate A when part of the site belongs to someone else is a false declaration, and it is one of the reasons applications are later found to be invalid or decisions are challenged.

Draw the red line honestly. If the scheme needs a strip of communal land to work, include it, serve the notice and say in the Planning Statement what the ownership position is and how access will be secured.

Settling the position before anyone orders materials

The sequence that avoids most of this is short and unglamorous.

1. Pull the title plan and the full register for your land and, where possible, the adjoining titles.
2. Identify the physical curtilage on a plan and mark anything outside it.
3. Check whether the building contains flats, which removes Part 1 entirely.
4. Check for covenants, easements and rights of way affecting the land you need.
5. Where the planning answer is uncertain, apply for a certificate under section 192 rather than relying on a view.
6. Where the private law answer is uncertain, take property advice before the planning application, not after it.

Builders will tell you that nobody checks. Neighbours check, and an injunction is far more expensive than a title search.

This is general guidance, not legal advice. A lawful development certificate is the only formal way to confirm that works are lawful, and the ownership and private rights questions need a property lawyer rather than a planner. Check the position with your local planning authority or a qualified professional before relying on it.

PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval. Enter your postcode on PlanScope to see which documents an application on shared land is likely to need.