Hilton v Secretary of State for Communities and Local Government [2016] EWHC (Admin) was a case dealing with the interpretation of householder permitted development rights. The case has aroused a good deal of interest, as the High Court found against the secretary of state’s interpretation of the relevant provision of the permitted development legislation as expressed in the published guidance.
The case turned on the meaning of “the enlarged part of the dwellinghouse” in Class A of Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development)(England) Order 2015.
Mr Hilton had applied for prior approval in respect of a single-storey rear extension. However, he had previously constructed a two-storey rear extension pursuant to an express planning permission. Class A grants planning permission for the “enlargement” of a dwellinghouse. Paragraph A.1(g) provides that development is not permitted where the “enlarged part” would have more than one storey, and would (i) extend more than six metres [or eight metres for a detached house] from the rear wall of the “original dwellinghouse”, or (ii) exceed four metres in height. Together, the existing and proposed extensions would extend less than six metres from the rear wall of the original dwellinghouse.
However, the inspector on appeal under section 78 held that the “enlarged part” was not merely the extension proposed under the permitted development right, but also included the earlier extension. He cited Kensington and Chelsea RBC v Secretary of State for Communities and Local Government [2015] EWHC 2458 (Admin). The consequence, he found, was that the proposal was not permitted development, as the pre-existing extension had more than one storey.
The High Court, however, held that the inspector was wrong, and that the “enlarged part” of a dwellinghouse for the purposes of Class A included only that which was being proposed under Class A.
High Court judgment appears to support the conclusion that where a proposed extension would be attached to an existing extension, then the phrase “the enlarged part of the dwellinghouse” applies to only the proposed extension. In other words, only the proposed extension should be assessed against those limitations and conditions of Part 1 Class A that apply to “the enlarged part of the dwellinghouse”. This is a relatively significant conclusion that contradicts the DCLG “Technical Guidance” document and contradicts the majority of appeal decisions that have dealt with this particular issue.
The secretary of state was refused permission to appeal to the Court of Appeal.
Martha Grekos is a partner and head of planning at Howard Kennedy LLP
