Town and country planning – Permitted development – Appellant Welsh Ministers refusing respondent certificate of lawful use or development for garden room in garden of home – Inspector refusing respondent’s appeal – High Court holding that proposed building would amount to lawful development – Appellants appealing – Whether inspector misconstruing class E of schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 as it applied in Wales – Appeal dismissed
The respondent wanted to build a garden room in the garden of his home in Sketty, Swansea. He applied unsuccessfully to the interested party local planning authority for a certificate that his proposal fell within class E of schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 (GPDO), as it applied in Wales, and would amount to lawful development.
Class E permitted the provision within the curtilage of a dwellinghouse of any building for a purpose incidental to the enjoyment of the dwellinghouse as such. However, paragraph E.1 provided that development was not permitted if the building came within any of the subsections there set out. It was suggested here that the building came within subsection (e), which applied if “the height of any part of the building… measured from the surface of the ground immediately adjacent to that part, would exceed… (ii) 3 metres…”; and subsection (f), which applied if “any part of the building… would be (i) within 2 metres of the boundary of the curtilage of the dwellinghouse; and (ii) exceed 2.5 metres in height above the surface of the ground immediately adjacent to it”.
An inspector appointed by the appellant Welsh Ministers decided that the proposed development did not fall within class E because the three-metre restriction in E.1(e) would be exceeded; and, for the purposes of E.1(f), the 2.5m restriction was exceeded. The High Court granted the respondent’s application to quash that decision: [2020] EWHC 2588 (Admin).
The appellants were granted permission to appeal against the court’s conclusion that the neighbour’s garden, just beyond the boundary wall, qualified as the immediately adjacent ground.
Held: The appeal was dismissed.
(1) The GPDO existed to relieve developers of the regulatory burden of applying for planning permission in categories of case defined in such a way that permission ought to be granted; and of the burden of dealing with such applications. The classes of case to which the GPDO applied were therefore defined so as to set out the parameters for the grant of general permissions while protecting various concerns relevant to planning considerations. As regards the height restrictions, the concern was that of visual amenity, specifically the risk of a building being too prominent, by protruding too far above ground level. The Order only applied to buildings of a single storey and, by reason of the height restrictions, that single storey had, first, to be limited in height above ground level and, secondly, be even more limited insofar as any part of it was close to the boundary. There were also restrictions designed to limit what could be seen from the highway.
(2) The court had to approach the GPDO in the light of its statutory purpose of relieving developers and planning authorities of an unnecessary regulatory burden in cases of a kind where planning permission ought to be granted, and reading both the words which set out what was permitted and those that limited the scope of the general permission in a broad and common sense way according to the ordinary meaning of the language used. It also had to bear in mind that if, for some reason, the case did not fall within the GPDO, it remained open to the developer to apply for planning permission in the ordinary way: English Clays Lovering Pochin & Co Ltd v Plymouth Corporation [1973] 1 WLR 1346; [1974] 1 WLR 742 (CA) followed.
(3) The court did not accept that the “adjacent ground” had to be within the curtilage of the dwellinghouse. The concern was about detriment to the visual amenity in the area, which should not necessarily be tested only by reference to the situation within the curtilage. The developer might well own land beyond the curtilage; and if a new building were proposed to be constructed within the curtilage but extending right to the boundary of the curtilage, there seemed to be no good reason why the ground immediately adjacent to that part of the building should not be taken to be relevant even though it was outside the curtilage, whatever might be the ownership of the land just beyond the curtilage: Burford v Secretary of State for Communities and Local Government [2017] EWHC 1493 (Admin) considered.
The fact that possible reliance on a neighbour’s land as being the ground immediately adjacent to the proposed building would involve a degree of dependence on what the neighbour did or had done on his land was not a valid objection in principle to the proposition that such land could be the ground immediately adjacent to the relevant part of the new building, if that was otherwise a legitimate reading of the GPDO.
(4) In the present case, the complication was that there was a brick structure between the proposed building and the nearest piece of unbuilt-on land, namely the boundary wall. Accordingly, while the neighbour’s land was adjacent to the building, it was not the physical feature that was nearest to it, and therefore would not normally be described as “immediately” adjacent to it.
However, on the basis that the aim of the height restrictions and other aspects of the qualifications in class E was to limit the impact of a generally permitted building on visual amenity in the area, it was necessary to identify some ground (ie, land not built on) by reference to which one could make a real assessment of the height of the proposed building above ground so as to limit its impact on what could be seen from elsewhere.
In the end, it was necessary to adopt a pragmatic approach based upon the relevant underlying policy considerations. Thus, on the basis that the wall could not count as “ground” but that there was ground immediately on the other side of the wall, that land in the neighbour’s ownership which was next to the boundary wall was ground immediately adjacent to the proposed building for the purposes of class E.
Owain Rhys James (instructed by the Government Legal Department) appeared for the appellants; Emyr Jones (instructed by DJM Law Ltd) appeared for the respondent; The interested party did not appear and was not represented.
Eileen O’Grady, barrister
