QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
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(Official Shorthand Writers to the Court)
MS N LIEVEN (instructed by Treasury Solicitors) appeared on behalf of the DEFENDANT
Crown Copyright ©
Tuesday, 9th December 2003
"the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such".
"The provision within the curtilage of a dwellinghouse of any building ... required for a purpose incidental to the enjoyment of the dwellinghouse as such ... "
Class E then contains certain limitations on the permitted development. For instance, the building would not be permitted development if it would be within 5 metres of the dwelling house, if its height exceeded certain limits or if the total ground area covered by buildings within the curtilage, other than the dwelling house, would exceed 50 per cent of the total area of the curtilage.
"The provision within the curtilage of a dwellinghouse of a hard surface for any purpose incidental to the enjoyment of the dwellinghouse as such".
Inspector's decision letter
"Mr Holding owns four planes which are kept in the barn and in the hanger the subject of Notice 3. He uses them to fly to and from his other homes in Florida and Guernsey and for business trips to his companies' sites at Bedford and Nottingham and on Teesside. They are also used for pleasure flights. It was explained that the appellant uses aircraft in much the same way as other people use cars - for a mixture of social, domestic, leisure and business-related uses, although for accounting purposes all his flying is treated as a business expense. One of the planes is also used for banner-towing, mainly for the appellant's own business or for charitable purposes rather than as a commercial venture. It appears that planes are also used in connection with corporate hospitality functions, either for transport to and from King's Farm or for sightseeing flights. Most of the evidence on this element of the use relates to an earlier period but I have no reason to doubt that it continues."
"... In my view the evidence shows that the personal element of the flying use, by which I mean flying by the appellant, his family and personal friends for pleasure and on business trips, and other business flying connected with the appellant's companies, is much the same now as it was in 1989. In planning terms I consider that it is and was a use ancillary or incidental to the appellant's use of the property for residential purposes, and not sufficient in itself to justify a conclusion that the land has a mixed use."
"53. Part of the Notice building is furnished as a lounge, it includes a number of cabinets containing trophies and other memorabilia and, with its glass sides overlooking the garden and the countryside beyond, it has something of the feel of a very spacious conservatory. The inquiry heard that the appellant intends to install a snooker table. However the primary use and purpose of the building is to provide secure, covered storage for three of Mr Holding's four private planes, the other being kept in the barn. I accept that he uses these aircraft for transport, much as other people use cars, but it became quite clear to me in listening to his evidence that planes mean far more to him than a mode of transport. He has been involved in flying since the 1960s, when he belonged to the Herts & Essex Aero Club, and qualified as a pilot in 1970. He told the inquiry that he considers his aircraft in the same vein as the exotic or ancient cars which some people collect, and described his use of the hanger (the Notice building) as 'a bit like an enthusiast who keeps a car or motorbike in his garage and works on it as well as spending time in his garage on other things or socialising with like-minded enthusiasts and interested people'.
54. Many people have hobbies for which they need space in and around their home, and it is reasonable to suppose that the purpose of the permission granted under Class E is to allow for such accommodation to be provided without the need for the trouble and formality of a planning application. However the Courts have held that what is a purpose incidental to the enjoyment of a dwellinghouse, and what buildings are reasonably required for such a purpose, are not matters which depend on the unrestrained whim of the occupier (Croydon LBC v Gladden: Document 20). The authorities were reviewed by the Court of Appeal in Harrods Limited v The Secretary of State for the Environment, Transport and The Regions and the Royal Borough of Kensington and Chelsea  JPL 1258, to which I was referred. That case was concerned with the slightly different point as to what might be considered incidental to a retail use, but it was held that the correct approach was not to concentrate on what was incidental to a particular shop (Harrods) bearing in mind its particular mode of operation, but to see what activities are reasonably incidental to shops in general. In my view that approach is equally valid in the residential context.
55. Few people own private aircraft, and even fewer are in a position to keep a plane within their curtilage at home. The keeping of planes is therefore not normally incidental to houses in general. I accept that what is abnormal is not necessarily unreasonable, and that in some circumstances a building capable of holding an aeroplane may reasonably be required for the provision of personal transport - a purpose incidental to a dwelling. In the case of King's Farm the barn is such a building and the Council do not seek its removal. But the provision of a further large building, with associated hardstanding, to accommodate three more aircraft seems to me as a matter of fact and degree to go beyond what, on any objective test of reasonableness, could be considered incidental to the enjoyment of the dwellinghouse as such."
"The fact that such a building had to be required for a purpose associated with the enjoyment of a dwelling-house could not rest solely on the unrestrained whim of him who dwelt there but connoted some sense of reasonableness in all the circumstances of the particular case. That was not to say that the arbiter could impose some hard objective test so as to frustrate the reasonable aspirations of a particular owner or occupier so long as they were sensibly related to enjoyment of the dwelling."
"The formula makes it necessary to consider whether the relevant purpose is incidental to the enjoyment of 'the dwellinghouse' (i.e. the particular dwellinghouse in question) as such, not any dwellinghouse."
Both Mr Howell and Ms Lieven accept that that is the correct test in the present case. However, Slade LJ made it clear that the inspector was also perfectly entitled to have regard to what people normally do in dwelling houses to decide whether, as a matter of fact and degree, the keeping of the appellant's 44 dogs should reasonably be regarded as incidental to the enjoyment of her dwelling house as a dwelling house. Farquharson LJ agreed with that way of expressing the objective test. He also made the point that it was sensible to consider what would be a normal use of a dwelling house, although that was not determinative. He agreed that it came down to a question of fact and degree in any particular case and stated that, amongst the matters to which it was necessary to have regard, were where the dwelling house was located, the size of the dwelling house and its curtilage, the nature and scale of the activity, and the disposition and character of the owner. He said that the view of the occupier as to whether or not the activity was incidental was something to which regard should be paid although it was not in any sense conclusive.