Dacorum Borough Council v The First Secretary of State

Whether an open-sided structure adds floorspace for planning-policy purposes depends on the purpose and character of the proposed structure, read in the context of the relevant local plan. The possibility that the space could be used for storage, habitation or another practical purpose does not necessarily make it floorspace. A planning decision must be read fairly and as a whole, rather than scrutinised as if it were a statute. An imperfect expression will not amount to an error of law where the thrust of the reasoning is sufficiently clear and rational.

Dacorum Borough Council refused planning permission for a pergola and gates at the rear of a cottage. The proposed development was subject to Policy 23 of the Dacorum Borough Local Plan, which limited the resulting building, including earlier extensions and alterations, to less than 150 per cent of the original dwelling’s floor area.

The planning inspector allowed the owners’ appeal on the papers. She concluded that the pergola did not add floorspace and that Policy 23 was not engaged. The Council brought a statutory appeal under section 288 of the Town and Country Planning Act 1990, arguing that the inspector had misunderstood the direction in which the gates opened, relied on a false factual premise, or reached an irrational conclusion.

1. The statutory appeal was dismissed. The inspector’s decision was legally adequate and rational, although her language concerning the gates being unusable was not expressed with complete precision.
2. A planning decision letter should be read fairly and as a whole, rather than subjected to the close textual analysis appropriate to a statute. The court must identify the thrust of the reasoning. Here, the inspector’s reasoning sufficiently conveyed that the pergola was essentially aesthetic, was not intended to alter the character of the existing drive, and did not add floorspace to the dwelling.
3. The inspector was entitled to conclude that an open-sided structure may or may not constitute floorspace depending significantly on the purpose for which it is constructed. The fact that the area could potentially be used for storage, as a sunroom or for another practical purpose was only a factor. It did not compel the conclusion that the area was floorspace under Policy 23.
4. The inspector could not realistically have overlooked that the gates were shown opening outwards. In any event, the practical point was that using the area for another purpose would make the drive unusable for vehicles and render the gates redundant, not that the gates could not physically open. The decision was therefore neither based on a material error of fact nor irrational.
5. Permission to appeal was refused. The proposed argument that anything capable of being used for any purpose must constitute floorspace had no realistic prospect of success as a principle of law; the remaining issues were fact-sensitive. Costs were awarded to the Secretary of State in the sum of £2,605.

1. Planning inspector — The owners’ appeal against refusal of planning permission was allowed on 15 December 2003.
2. High Court (Administrative Court) — The Council’s statutory appeal under section 288 of the Town and Country Planning Act 1990 was dismissed. Permission to appeal was refused.