Enforcement notice — Works of excavation to garden — Alleged breach of planning control — Secretary of State holding that works constituted permitted development within Classes A and F of GDO — High Court holding that Secretary of State applied wrong test of purpose of works — Correct test for Class F whether one activity ancillary to another — Correct test for Class A whether erection built as means of enclosure — Case remitted to Secretary of State for reconsideration
23 Hunt Road, High Wycombe, stood in an elevated position on the north side of a road, so that the front garden sloped from the house down to the road. The owners carried out excavation works to the front garden to form a hardstanding with breeze-block retaining walls, without the grant of planning permission. An enforcement notice was issued by the council alleging a breach of planning control by the works of excavation. The Secretary of State decided that there was no breach of planning control because what was done had been permitted by the Town and Country Planning General Development Order 1988 (SI 1988 No 1813). The council appealed to the High Court. The question was whether the works were permitted development as the “provision within the curtilage of a dwellinghouse of a hard surface for any purpose incidental to the enjoyment of the dwellinghouse as such” (under Class F) so far as the hardstanding as concerned; and as the “erection, construction, maintenance, improvement or alteration of a gate, fence, wall or other means of enclosure” (under Class A) so far as the block-work walls were concerned.
Held The appeal was allowed and the decision remitted to the Secretary of State.
1. The wording of Class F merely allowed the provision of a hard surface. The logical and proper approach to the application of Class F was to look first at what the order permitted and then consider as a matter of fact and degree whether anything done or to be done beyond that specific permission was incidental to what was specifically permitted.
2. In the present case the Secretary of State did not determine what was incidental to the provision of a hard surface, but went straight to the purpose and indivisibility of the operation when purpose was not the determining test. He was fatally in error in omitting to consider the correct test and in applying tests which were not appropriate.
3. As regards Class A, the meaning of the GDO was quite clear. A means of enclosure must provide some way of closing in an area, so that it became enclosed. That function of closing in necessarily imported a character of surrounding the area. When that character was achieved there need not be a perfect surrounding. There might be gaps in the overall enclosure, but it would be a matter of fact and degree whether such gaps took the operations outside the essential character of surrounding and so outside enclosure.
4. In the present case, the walls in question were incapable of being described as a means of enclosure and the hardstanding could not be described as an area which was enclosed — it was an open area. The Secretary of State was therefore in error.
David Lamming (instructed by the solicitor to Wycombe District Council) appeared for the local planning authority; Nathalie Lieven (instructed by the Treasury Solicitor) appeared for the Secretary of State; the owner, Robert Trevor, did not appear and was not represented.
