Lowe v First Secretary of State & Anor

Whether land falls within the curtilage of a listed building is a question of fact and degree. Curtilage concerns land attached to a dwelling and forming part of its enclosure. It may include gardens, stables, outbuildings and nearby accommodation land, but not an entire parkland setting or a remote driveway. The assessment concerns the character of the land when the development occurred. The owner’s reasons for erecting a fence cannot define or establish curtilage. Common ownership is relevant but is not determinative.

The appellant owned and occupied a listed building near Colchester. An inspector upheld an enforcement notice requiring removal of a fence erected along the main driveway, concluding that the fence was within the building’s curtilage and therefore excluded from permitted development.

On an appeal under section 289 of the Town and Country Planning Act 1990, the appellant challenged the inspector’s approach to curtilage, particularly his reliance on the reasons for erecting the fence and on common ownership. The central issue was whether the fence site formed part of the curtilage of the listed building.

1. Appeal allowed. The inspector’s decision was quashed. The appellant’s costs were ordered to be paid by the First Secretary of State, subject to a deduction of £300 from the claimed costs.

2. Under Class A of Part II of Schedule 2 to the General Permitted Development Order 1995, the fence would be permitted development unless it involved development within the curtilage of, or a means of enclosure surrounding, a listed building. The inspector was wrong to add a separate test concerning whether the fence was a means of enclosure surrounding the listed building.

3. The meaning of curtilage is a question of fact and degree. It denotes a building or piece of land attached to a dwelling house and forming one enclosure with it. It is not restricted to a fixed size, but it must fairly be described as part of the house’s enclosure. It may include ancillary buildings, a garden and nearby accommodation land. It cannot include the whole parkland setting of the hall or the driveway in this case.

4. The relevant question was whether the land was within the curtilage when the fence was erected. The appellant’s reasons for erecting the fence could not alter the character of the land, define the curtilage or establish that the fence site lay within it.

5. Ownership may be taken into account, but it is not determinative. Common ownership of the hall and land does not mean that the land forms part of the hall’s curtilage. The inspector therefore erred in law by relying on the appellant’s reasons and by placing undue emphasis on common ownership.

6. Leave to appeal was refused. The issue was one of fact and degree, and no great point of principle arose beyond the facts of this case.

The judgment concerned an appeal under section 289 of the Town and Country Planning Act 1990 against an inspector’s decision under section 174 of that Act. The High Court quashed the inspector’s decision and refused permission for a further appeal.