Holding v First Secretary of State

Whether a building is required for a purpose incidental to the enjoyment of a dwellinghouse as such is assessed objectively, as a question of fact and degree. The assessment concerns the particular dwellinghouse, but may take account of normal residential use as a useful comparison. The occupier’s wishes and personal circumstances are relevant, although they are not determinative. An unusual activity may qualify, but the scale and nature of the associated building remain important. A planning inspector’s evaluative judgment should not be disturbed on a statutory appeal unless it involves an error of law.

The appellant challenged an inspector’s decision concerning enforcement notices relating to a hanger and hardstanding at land containing his dwellinghouse, an airfield and several aircraft. The inspector accepted that the personal flying use was incidental to residential use and that the airfield use was immune from enforcement, but concluded that the hanger for three aircraft was not permitted development under Class E of the Town and Country Planning (General Permitted Development) Order 1995. The central issues were whether the inspector had applied the correct objective test, whether his conclusions were inconsistent, and whether he had given adequate reasons.

The appeal under section 289 of the Town and Country Planning Act 1990 was dismissed.

1. Correct legal test. The question under Class E of the Town and Country Planning (General Permitted Development) Order 1995 concerns the particular dwellinghouse. It is nevertheless legitimate to consider what activities are normally associated with dwellinghouses generally, as an aid to deciding whether the activity is incidental to that particular dwellinghouse as a matter of fact and degree. This was the effect of Wallington v Secretary of State for Wales and did not conflict with Harrods Limited v Secretary of State for the Environment, Transport and the Regions and the Royal Borough of Kensington and Chelsea.
2. Objective assessment. The issue is not determined by the occupier’s unrestrained whim. The court must import an objective test of reasonableness while considering the relevant personal circumstances. Relevant matters may include the location and size of the dwellinghouse and curtilage, the nature and scale of the activity, and the character of the owner. Unusual use is not necessarily unreasonable, but the provision of a further large building for three additional aircraft could reasonably be found to go beyond what was incidental.
3. Inspector’s reasoning. The inspector’s conclusion about the amount of flying concerned a different issue from the conclusion about the building required to accommodate the aircraft. Any tension between the conclusions did not amount to an error of law. The inspector had considered the house, curtilage, airfield, aircraft, transport use and hobby-related matters, and was not required to elaborate further on an evaluative judgment of fact and degree.
4. The court therefore found no error of law and upheld the inspector’s decision. The appellant was ordered to pay the first respondent’s costs of £6,885. Permission to appeal was refused.

The appellant appealed under section 289 of the Town and Country Planning Act 1990 against an inspector’s decision dated 24 June 2003. Earlier challenges concerning related enforcement notices had resulted in decisions of the High Court and Court of Appeal being allowed, with one matter remitted and another notice quashed. The present appeal was dismissed by the Administrative Court. Permission to appeal was refused.