Enforcement notice–Most of three-storey Georgian house used as residence, but two ground-floor rooms used by occupant for purposes of her estate agency business–Premises not a ‘dwelling-house’ within terms of general development order, notice requiring reinstatement of sash windows accordingly effective
This was an
appeal by Mrs Grace Scurlock, of 17 Hamilton Terrace, Milford Haven, Dyfed,
from a decision of the first respondent, the Secretary of State for Wales,
upholding an enforcement notice served by the second respondents, Preseli
District Council, requiring the appellant to remove a single window installed
on the ground-floor storey of her property and to replace it with two sash
windows.
Mr C Fay
(instructed by Rutland & Cranford, agents for Price & Kelway, of
Milford Haven) appeared for the appellant, and Mr H K Woolf (instructed by the
Treasury Solicitor) represented the first respondent. The second respondents
took no part in the proceedings.
Giving the
first judgment, KILNER BROWN J said that the premises concerned were Georgian
in style and three storeys high, and it was obvious that the local planning
authority and the Secretary of State were of opinion that they required careful
treatment and a degree of planning control. The appellant lived in the upper
part of the premises and used the front two downstairs rooms for her work as an
estate agent. Her contention was that as she occupied the upper part of the
premises as her home the premises were, for all purposes, to be regarded as a
dwelling-house. There came a time when she was minded to have repairs and
decorations done to the property, and in the course of that work it was
discovered that there had at one time been one long window at the front instead
of two small sash windows. That large window must have been removed and
replaced by the two sash windows to make the whole front of the house look
elegant and Georgian. The appellant, who was minded to replace the two sash
windows with one large window, had some discussion with the local authority and
got the impression she had permission to go ahead with the proposed
development. This she did, only to find that the authority and the Secretary of
State took the view that there was not, and should not be, permission for the
change.
The sole
question raised on appeal was the definition of ‘dwelling-house.’ The appellant said that the premises were a
dwelling-house within the meaning of the Town and Country Planning General
Development Order 1973 and that the development was permitted development under
paragraph 3 of that order. No specific definition of ‘dwelling-house’ could be
found in the order, and the proper test was the factual approach. That was the
approach adopted by the inspector and the Secretary of State. The appellant
submitted that the Secretary of State had erred in law in holding that the
premises were not a dwelling-house, but he (his Lordship) thought the Secretary
of State had assessed the situation correctly. He had said that development as
defined in section 22 (1) of the 1971 Act was involved, but that it was
necessary to look at the use of the appeal property as a whole before it could
be determined whether the provisions of the general development order were
applicable. He had gone on to decide that the premises had a dual use,
residential and business, and that there had accordingly been development for
which planning consent was required. That was an entirely correct view, and
there was no error of law. The appeal should be dismissed.
LORD WIDGERY
and WATKINS J agreed, and the appeal was dismissed with costs.
