Gore, R (on the application of) v Secretary of State for Communities & Local Government & Anor

In an appeal under section 289 of the Town and Country Planning Act 1990, an inspector’s conclusions on whether an unusual building is a dwellinghouse, and whether land forms part of its residential curtilage, are primarily matters of fact and degree. A building may be used as a dwelling without being a dwellinghouse for permitted-development purposes. Residential curtilage must exist when development is carried out. Occasional overnight sleeping does not necessarily amount to residential use.

The claimant appealed against an inspector’s decision dismissing appeals against two enforcement notices issued by the Dartmoor National Park Authority. One notice required removal of timber decking. The other alleged an unauthorised mixed use, including residential use and storage.

The issues were whether the forestry store was a dwellinghouse for permitted-development purposes, whether the decking lay within its residential curtilage, and when the alleged mixed use began.

1. The appeal was dismissed. The claimant was ordered to pay the first respondent’s costs, subject to detailed assessment unless otherwise agreed.
2. For Enforcement Notice A, the inspector was entitled to distinguish between a building used as a dwelling and a dwellinghouse for the purposes of Article 3 and Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995. The building’s physical characteristics, including its small size, limited internal space, restricted natural light and lack of ordinary domestic accommodation, were relevant. The conclusion that it was not a dwellinghouse was reasonably open to the inspector.
3. Residential curtilage was a question of fact and degree. The relevant question was whether the decking area was already part of the residential curtilage when the decking was constructed. Its later use as a sitting or eating area did not establish that status.
4. For Enforcement Notice B, the claimant had to establish that the particular mixed use, including its residential component, began at least ten years before service of the notice. The earlier inspector’s finding that regular residential use began in 1999 was an appropriate starting point. In the absence of cogent countervailing evidence, the present inspector was entitled to adopt it. Occasional overnight sleeping did not necessarily amount to residential use.

The judgment concerned an appeal under section 289 of the Town and Country Planning Act 1990 against an inspector’s decision dismissing appeals against two enforcement notices. The court dismissed the appeal.