QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE FIRST SECRETARY OF STATE||(FIRST RESPONDENT)|
|WEALDEN DISTRICT COUNCIL||(SECOND RESPONDENT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR J MAURICI (instructed by Treasury Solicitors, London SW1H 9JS) appeared on behalf of the DEFENDANT
Crown Copyright ©
Wednesday, 7 May 2003
"... Having regard to the siting of the new building in relation to the existing dwelling and cottage annex, I share the view of the Council that the appeal building is not within the curtilage of a dwelling. I consider the appeal building, which is constructed on the site of a former agricultural building some distance from the dwellinghouse, would not satisfy the test as outlined in Sinclair-Lockhart's Trustees v Central Land Board  1 P&CR 195 that it must serve the house or building in some necessary [or] reasonably useful way. In reaching my conclusion as to the extent of the curtilage I have noted the judgment of the Court of Appeal in SSETR and Another v Skerritts of Nottingham Ltd that a curtilage need not necessarily denote a small area."
"This duty clearly arises whether or not such sources of relevant law are drawn to his attention by the parties. If he fails to understand the law correctly, his decision is susceptible to review on Lord Diplock's principle. It is the same if he purports to determine the appeal on the basis that legal principle derived from case law which has not been drawn to his attention by the parties but which he has discovered for himself. If, on analysis, he is shown to have misunderstood that case law and to have determined the appeal on that incorrect understanding, he errs in law. The question of fairness or impropriety in failing to invite the parties to make representations on the case law in question does not arise in such circumstances.
There will, however, be cases where the
Inspector's reliance upon case law, not referred to by the parties, does not give rise to illegality but still gives rise to a legitimate complaint. Such a case would be one where the Inspector's correct understanding of the law, based on his own researches, indicates that an issue, not treated by the parties as a principal one to which they devoted significant weight in their representations, is in fact a decisive issue in the appeal. In such a case, there could be a real risk that the parties would have more to draw to the Inspector's attention in respect of the facts and circumstances relevant to that issue; and that a failure to give them the opportunity to do would cause substantial prejudice. In such a case, therefore, the Inspector's correct reliance upon the relevant case law would not of itself give grounds for review by the court; but his decision based upon analysis of the facts and circumstances of the appeal in the light of that case law would be open to challenge unless he gave the parties the opportunity to address him further on the consequences of his understanding of the law in the circumstances of the instant appeal."
"This rather illuminating decision seems to show that ground which is used for the comfortable enjoyment of a house or other building may be regarded in law as being within the curtilage of that house or building and thereby as an integral part of the same, although it has not been marked off or enclosed in any way. It is enough that it serves the purposes of the house or building in some necessary or reasonably useful way."
"I also respectfully doubt whether the expression 'curtilage' can usefully be called a term of art. That phrase describes an expression which is used by persons skilled in some particular profession, art or science, and which the practitioners clearly understand even if the uninitiated do not. This case demonstrates that not even lawyers can have a precise idea what 'curtilage' means. It is, as this court said in Dyer's case, a question of fact and degree."
"The existing access road, at its junctions with the UC7918, has substandard width and existing hazards would be increased by the additional slowing, stopping, turning and reversing traffic which would be created by the proposed development, thereby contrary to the provisions of ... TR3 of the Wealden Local Plan."
"In my view the starting point should be the likely traffic generation from tourist or holiday use of the annex over and above normal residential use. I have no doubt that, an additional holiday dwelling, particularly during the summer months, would generate as many vehicle movements as a single dwelling. I saw that the existing access to Three Ways farm was a narrow gravelled track. This meets the unclassified road at the junction with Furnace Lane which is a single track road with no turning space close by. During a 30-minute off peak period, I also observed a number of vehicles using the access track, Furnace Lane and the access to the nearby property at Wayside. Having regard to the speed and volume of traffic on the [unclassified] road, I am satisfied that any vehicles emerging from the appeal site access track could be a source of traffic conflict should drivers be attempting to gain access from Furnace Lane or the track at the same time. This could result in drivers having to reverse back onto the highway creating a possible danger to themselves and other road users. In my view, relaxation of the planning condition would be likely to increase use of an unsatisfactory road junction in conflict with the aims of the adopted transport policy TR3. My conclusion is that condition 4 still serves a necessary planning purpose in the interests of highway safety and its retention is justified."
"I can confirm that I inspected the access from the public highway unaccompanied by the parties. However, at the commencement of the site visit, which was attended by Mr Wheeler, Mr Higgs and Mr Coffey for the Council, I informed those in attendance that I had spent some time before the site visit in the vicinity of the junction I have referred to. I informed those attending the site visit that I had made observations on matters such as visibility, the width of the carriageways and the volume of traffic and suggested that it therefore might not be necessary for the accompanied site visit to cover this. No one disagreed."
"It is not necessary for the Inspector to be accompanied by either party if the site can be seen satisfactorily from a public highway..."