Challenge Fencing Ltd v Secretary of State for Housing, Communities and Local Government – Town and country planning – Certificate of lawful use or development (LDC) – Industrial building – Claimant applying for LDC to replace hard surface within curtilage of building – Local authority refusing application – Inspector dismissing appeal against refusal – Claimant applying to quash decision – Whether inspector erring in approach to determining curtilage of building – Application dismissed
The claimant applied to the interested party local authority for a certificate of lawful use or development (LDC) for the replacement of a hard surface within the curtilage of the industrial/warehouse building A to be used for the purpose of the undertaking concerned, as being permitted development under class J of part 7 of schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 on land at Lian Yard, Redhill Road, Cobham. An LDC had been granted on the site in 2013 for existing use of buildings A and B. Building B was demolished after 2013 so the only building left on the site was building A.
The interested party refused to grant a certificate and an inspector appointed by the defendant secretary of state dismissed an appeal against that decision. The inspector rejected the appeal on the ground that the area for which the certificate was sought did not fall within the curtilage of building A. The claimant applied to quash that decision under section 288 of the Town and Country Planning Act 1990.
It contended that the inspector had wrongly taken into account the historic position on the land in order to identify the curtilage, instead of focusing on the position in 2016 when the hardstanding was laid and the application was made; and wrongly relied on a plan submitted in 2013 which was not made for the purpose of identifying the curtilage. He had failed to make findings, disregarded evidence, and failed to consider a number of essential elements, in relation to the 2016 situation when the work was done. He had also misdirected himself as to the case law relating to the size of the curtilage.
Held: The application was dismissed.
(1) The extent of the curtilage of a building was a question of fact and degree which was a matter for the decision-maker, subject to the normal principles of public law. Three factors had to be taken into account in deciding whether a structure was within the curtilage of a building: (i) physical layout; (ii) ownership past and present; and (iii) the use or function of the land or buildings, past and present. A curtilage did not have to be small, but that did not mean that the relative size between the building and its claimed curtilage was not relevant. Whether the building or land within the claimed curtilage was ancillary to the main building would be a relevant consideration but it was not a legal requirement that the claimed curtilage should be ancillary. The degree to which the building and the claimed curtilage fell within one enclosure was relevant and was one aspect of the physical layout. The relevant date on which to determine the extent of the curtilage was the date of the application; but that would involve considering both the past history of the site and how it was laid out and used at the time of the application itself. However, a developer could not change the curtilage simply by asserting that he or she intended to use the site in a particular way in the future: Attorney General, ex rel Sutcliffe v Calderdale Borough Council (1982) 46 P&CR 399, Dyer v Dorset County Council [1989] 1 QB 346, Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions [2000] 2 PLR 84, Lowe v Secretary of State [2003] EWHC 537 (Admin); [2003] 1 PLR 81 and Sumption v Greenwich London Borough Council [2007] EWHC 2776 (Admin); [2007] PLSCS 248 applied.
(2) The inspector had not erred in law in looking at the historic situation on the land. Whether a piece of land (or another building) fell within the curtilage of a building would necessarily involve considerations of physical layout, scale and evidence on the nature of the uses, which were largely for the inspector. The historic relationship between the land and the buildings was a relevant consideration. Therefore, the inspector was correct to take into account the evidence, including the plans submitted in 2013, to try to judge how the buildings and land related to each other at that time, in order to determine the curtilage in 2016. The inspector was also correct to consider the condition of the hardstanding in 2013 in order to understand how the use of the building had related to the surrounding area. Moreover, the lawfulness of either the uses or the buildings might be relevant to judgments about the curtilage. All would depend on the circumstances of an individual case. It followed that the inspector had not erred in having regard to the 2013 plan, or attaching weight to it.
(3) The decision of a planning inspector was an inquisitorial jurisdiction. It was for the inspector to weigh the evidence and he was entitled to rely on his own judgment. The inspector had explained what material he had taken into account and his view on the extent of the curtilage by reference to the size and use of building A. He therefore met the test in South Bucks v Porter [2004] 1 WLR 1953, at para 36 for the standard of reasons in a planning decision letter.
(4) The inspector had not erred in law by having regard to the relative sizes of building A and the large area of hardstanding being claimed as curtilage. The Court of Appeal in Skerritts made clear that there was no test that a curtilage had to be small, and to the degree something different was being suggested in Dyer it was wrong. However, that was different from the proposition being advanced by the claimant that relative size was an irrelevant consideration. There was no error of law in the inspector taking into account the fact that building A was a small building and the curtilage being claimed was an extensive one.
Jonathan Clay (instructed by Charles Russell Speechlys LLP) appeared for the claimant; Mark Westmoreland Smith (instructed by the Government Legal Department) appeared for the defendant.
Eileen O’Grady, barrister
