QUEEN'S BENCH DIVISION
In the matter of an appeal under s.289 of the
Town & Country Planning Act 1990
Strand, London, WC2A 2LL
B e f o r e :
| ADRIAN BURFORD
|- and -
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
TEST VALLEY BOROUGH COUNCIL
Estelle Dehon (instructed by Government Legal Dept.) for the First Respondent
Ashley Bowes (instructed by Head of Legal & Democratic Services, TVBC) for the Second Respondent
Hearing date: 23 May 2017
Crown Copyright ©
Mr Justice Supperstone :
The issues in the appeal
i) In determining the curtilage for the main dwelling house at the Site, the Inspector erred by:a) reaching a conclusion on the curtilage issue which is irreconcilable with the extant Certificate of Lawfulness ("CLEUD") granted by the Second Respondent in respect of the Site in December 2015; and/orb) failing adequately to have regard to the functional relationship between the dwelling house and the land on which the Building was constructed; and/orc) failing to provide adequate or intelligible reasons for his decision on the curtilage issue at paragraphs 18-20 of the Decision Letter ("the DL"), which was the principal and crucial issue between the parties in the appeal.
ii) The Inspector erred by determining that the height of the eaves of the Building should be measured from the cut-out area on which the Building is erected as opposed to the adjacent ground upon which the operational development that created the Building was carried out.
The factual background
"6.10 From the evidence provided, it is likely that in the relevant 10-year period the land to which the application relates has been used at various times for purposes that would be associated with a residential property such as garden parties… The parties, barbeques and football activities are considered to be activities that would be incidental to the enjoyment of the dwelling house as such."
"6.13 …it is considered that the keeping of horses for recreational purposes in this case would be a use incidental to the enjoyment of the dwelling house as such."
The Inspector's decision
"All that the LDC [Lawful Development Certificate] confirms is that all of the land edged red (which is all within the ownership of the appellants) may be used for the purposes stated in the LDC; that may be garden-type use or it may be some other incidental use e.g. a paddock for horses, or it may be a mix of several incidental uses. Further, curtilage is not a land use at all and does not necessarily comprise all of the land in someone's ownership or all of the land forming a planning unit. What constitutes the curtilage of any dwelling is a matter that has been before the courts on a number of occasions and is a matter of law. Whilst I will make a determination on the curtilage in this decision, it is ultimately for the courts to determine in any given case."
"7. … There was no dispute between the parties that all the land forming the LDC application and decision was one planning unit or that its use was now residential; that it was a dwelling and other uses and buildings that were incidental to the residential use of that dwelling."
"18. Elsewhere in the report the officer also stated that there was a trampoline, swing set, goals used for football, a garden table and chairs and other toys in various parts of the land. I acknowledge that the evidence at the time of the LDC appears to show activities incidental to the enjoyment of the dwelling as such taking place on the land and the Council accepted that sufficient had taken place in the 10 years prior to the application date to grant a certificate for residential use.
19. From the representations put forward, whilst that is now an accepted fact, it does not appear to me that the land was curtilage. That was confined to the clearly physically separate land immediately to the north, west and south of the dwelling and all the other land was physically separated from it by fences and hedges at least until November 2015. Prior to October 2014 there seems to have been just paddocks on the large area to the east and northeast of the dwelling except for the mobile home and other buildings close to the northern boundary. That use, albeit with others, may have continued until November 2015.
20. Whether looked at in terms of how it appears on the ground or the uses to which it was and is put, I do not consider, taking into account the way in which the courts have considered what is and what is not the curtilage of a building, that the large rectangular area that lies to the east of the dwelling can be described as curtilage. It seems to me that it was used as horse paddocks with the animals being kept separate from the much smaller garden area that constituted the curtilage."
"21. … At the site visit when I asked the parties about where the measurement should be taken from the appellant's representative suggested it should be at the higher level of the land around the building.
22. In my view that is not correct; an area has been dug out and the land has been levelled and a building erected upon it. There is clearly a flat, fairly level area of land on which the building stands and it has ground around it on all sides; that is where the measurement should be taken from. Behind walls on two sides the land is considerably higher but in my view it would be artificial to take measurements from that land which is now clearly separate from the land on which the building stands."
The Legal Framework
Development and the requirement for planning permission
"191. Certificate of lawfulness of existing use or development.
(1) If any person wishes to ascertain whether—
(a) any existing use of buildings or other land is lawful;
(b) any operations which have been carried out in, on, over or under land are lawful; or
(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,
he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.
(2) For the purposes of this Act uses and operations are lawful at any time if—
(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and
(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force.
(6) the lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed."
"172. Issue of enforcement notice
(1) The local planning authority may issue a notice (in this Act referred to as an 'enforcement notice') where it appears to them—
(a) that there has been a breach of planning control; and
(b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations. …"
"174. Appeal against enforcement notice
(1) A person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him.
(2) An appeal may be brought on any of the following grounds—
(c) that those matters (if they occurred) do not constitute a breach of planning control; …"
"177. Grant or modification of planning permission on appeals against enforcement notices
(1) On the determination of an appeal under section 174, the Secretary of State may—
(a) grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control, whether in relation to the whole or any part of those matters or in relation to the whole or any part of the land to which the notice relates;
(b) discharge any condition or limitation subject to which planning permission was granted;
(c) determine whether, on the date on which the appeal was made, any existing use of the land was lawful, any operations which had been carried out in, on, over or under the land were lawful or any matter constituting a failure to comply with any condition or limitation subject to which planning permission was granted was lawful and, if so, issue a certificate under section 191."
"(1) Subject to the provisions of this Order… planning permission is hereby granted for the classes of development described as permitted development in Schedule 2."
"The provision within the curtilage of the dwelling house of—
(a) any building or enclosure, swimming or other pool required for a purpose incidental to the enjoyment of the dwelling house as such, or the maintenance, improvement or other alteration of such a building or enclosure; …"
"Development is not permitted by Class E if—
(f) the height of the eaves of the building would exceed 2.5 metres."
"(a) includes any structure or erection and … includes any part of a building."
"(2) Unless the context otherwise requires, any reference in this Order to the height of a building or of plant or machinery is to be construed as a reference to its height when measured from ground level; and for the purposes of this paragraph "ground level" means the level of the surface of the ground immediately adjacent to the building or plant or machinery in question or, where the level of the surface of the ground on which it is situated or is to be situated is not uniform, the level of the highest part of the surface of the ground adjacent to it."
"'Height' – reference to height (for example, the height of the eaves on a home extension) is the height measured from ground level (Note, ground level is the surface of the ground immediately adjacent to the building in question, and would not include any addition laid on top of the ground such as decking. Where ground level is not uniform (for example if the ground is sloping, then the ground level is the highest part of the surface of the ground next to the building)."
Definition of "curtilage"
"Three factors have to be taken into account in deciding whether a structure (or object) is within the curtilage of a listed building… whatever may be the strict conveyanging interpretation of the ancient and somewhat obscure word 'curtilage'. They are (1) the physical 'layout' of the listed building and the structure, (2) their ownership, past and present, (3) their use or function, past and present. Where they are in common ownership and one is used in connection with the other, there is little difficulty in putting a structure near a building or even some distance from it into its curtilage."
"[The question of determining the extent of the curtilage] 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."
"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."
"I … respectfully doubt whether the expression 'curtilage' can usefully be called a term of art… It is, as this court said in Dyer's a question of fact and degree".
Robert Walker LJ continued:
"In the context of what is now Part 1 of the Act, the curtilage of a substantial listed building is likely to extend to what are or have been, in terms of ownership and function, ancillary buildings. Of course, as Stephenson LJ noted in the Calderdale case, 46 P&CR 399, 407, physical 'layout' comes into the matter as well. In the nature of things the curtilage within which a mansion's satellite buildings are found is bound to be relatively limited. But the concept of smallness is in this context so completely relative as to be almost meaningless, and unhelpful as a criterion."
"21. Of the authorities cited to me, I derive most assistance from the decision of the Court of Appeal in Dyer v Dorset CC, and in particular the judgment of Nourse LJ in the passage already referred to at p.358F-G. The expression 'curtilage' is a question of fact and degree. It connotes a building or piece of land attached to a dwelling house and forming one enclosure with it. It is not restricted in size, but it must fairly be described as being part of the enclosure of the house to which it refers. It may include stables and other outbuildings, and certainly includes a garden, whether walled or not. It might include accommodation land such as a small paddock close to the house. But it cannot possibly include the whole of the parkland setting in which Alresford Hall lies, nor the driveway along which the fence was erected. It could not sensibly be contended that the site of the fence was attached to the hall, or that it formed one enclosure with it, or was part of the enclosure of it."
The Parties' Submissions and Discussion
Ground 1: Curtilage
Ground 2: the height of the eaves of the Building