Lowe v First Secretary of State & Anor

The appellant challenged an inspector's decision under section 174 of the Town and Country Planning Act 1990 upholding an enforcement notice which required removal of a 1.8 metre high, 650 metre long chain-link fence beside the main driveway to Alresford Hall, a Grade II listed building. The central legal issue was whether the fence was development within the curtilage of the listed building so as to be excluded from permitted development under Class A of Part II of Schedule 2 to the General Permitted Development Order 1995 (paragraph A.1(d)).

The court held that the inspector had erred in law by treating the stated reasons for erecting the fence and mere common ownership as determinative of curtilage. Curtilage is a question of fact and degree, informed by physical layout, ownership and use or function, but those factors must be applied to the character and relationship of the land to the building. The judge concluded the driveway and fenced area could not sensibly be regarded as forming part of the curtilage of the hall and quashed the inspector's decision.

Background and parties: The appellant, owner and occupier of Alresford Hall (a Grade II listed building), appealed under section 289 of the Town and Country Planning Act 1990 against an inspector's letter dated 2 September 2002 which had upheld an enforcement notice dated 11 February 2002 requiring removal of a long chain-link fence erected alongside the main driveway. The first respondent was the First Secretary of State; the second respondent was Tendring District Council.

Nature of the claim: The appellant sought to quash the inspector's decision on the ground that the inspector had misdirected himself on the legal test for curtilage of a listed building and had taken into account irrelevant factors when deciding that the fence lay within the curtilage and that planning permission was therefore required.

Issues framed: The court framed the issues as (i) the correct meaning and application of the term 'curtilage' in the listed- building context, and (ii) whether the inspector was entitled to rely upon the stated reasons for erecting the fence and the common ownership as evidence that the fence fell within curtilage.

Reasoning and analysis: The judge reviewed authorities including Attorney-General ex rel Sutcliffe v Calderdale Borough Council, Dyer v Dorset County Council and Skerritts of Nottingham Ltd v Secretary of State, and surveyed dictionary definitions. The court reiterated that curtilage is a question of fact and degree, informed by physical layout, ownership and use or function, but not confined to a particular small size in all cases. However, the judge found the inspector had wrongly relied on the appellant's stated reasons for erecting the fence as a key factor in determining curtilage and had placed undue emphasis on common ownership, effectively equating ownership with curtilage. The judge found that the driveway and the fenced area could not sensibly be described as forming part of the curtilage or as forming one enclosure with the hall and that the inspector's conclusion that the fence was most unlikely to be outside the curtilage was therefore erroneous.

Disposition and ancillary matters: The court quashed the inspector's decision. Costs were awarded to the appellant against the First Secretary of State, with a modest reduction in claimed counsel fees. Permission to appeal to the Court of Appeal was refused.

Appeal allowed. The inspector erred in law by treating the appellant's reasons for erecting the fence and shared ownership as determinative of curtilage; curtilage is a question of fact and degree informed by layout, ownership and use, and on the facts the driveway and fence could not sensibly be regarded as part of the hall's curtilage.

Appeal under section 289 of the Town and Country Planning Act 1990 against an inspector's decision made under section 174 dated 2 September 2002 upholding an enforcement notice dated 11 February 2002; High Court judgment [2003] EWHC 537 (Admin).