Eagles & Anor v Minister for the Environment Sustainability and Housing, Welsh Assembly Government & Anor

On a challenge under Town and Country Planning Act 1990, the court reviews legality rather than planning merits. Whether accommodation is ancillary to an existing dwelling is a fact-and-degree question. Relevant considerations include the size, scale, physical relationship, layout and facilities of the proposed accommodation, viewed in terms of its capacity for independent domestic existence. A condition cannot cure a fundamental objection that the development is not ancillary. In assessing development affecting a listed building, the decision-maker must have special regard to preserving the building, its setting and features of special architectural or historic interest. Inadequate detail may be relevant where the identified design matters cumulatively erode historic character.

The claimants applied under section 288 of the Town and Country Planning Act 1990 to quash an Inspector’s decision, made on behalf of the Welsh Minister, dismissing their section 78 appeal against refusal of planning permission.

The proposed development involved converting a large barn attached to a listed farmhouse into extensive additional accommodation, including a kitchen, lounge, dining room, three bedrooms and two bathrooms. The Inspector concluded that it would constitute a self-contained dwelling rather than ancillary accommodation and that aspects of the works would fail to preserve the listed building’s character and setting. The central issues were whether the Inspector applied the correct test for ancillary use, properly considered conditions, and complied with the statutory duty concerning listed buildings.

1. The claim was dismissed. A challenge under section 288 of the Town and Country Planning Act 1990 is confined to statutory validity and legal error. It is not a review of planning merits. A Wednesbury challenge to planning judgment faces a particularly high threshold: R (Newsmith Stainless Steel Ltd) v Secretary of State for Environment, Transport and the Regions [2001] EWHC 74 (Admin).
2. Whether accommodation is a separate dwelling or ancillary to another building is a question of fact and degree for the decision-maker. The court may intervene if the wrong legal test is applied, but otherwise only where the facts cannot support the conclusion: Moore v Secretary of State for the Environment, Transport and the Regions (1999) 77 P & C R 114.
3. The Inspector was entitled to consider the proposed accommodation’s size, scale, physical layout, lack of physical connection with the farmhouse, orientation of the entrance, and extensive domestic facilities. The relevant characteristic of a dwelling is functional: the ability to provide the facilities required for day-to-day private existence. The facts supported the conclusion that the barn would be a self-contained dwelling and not ancillary: Gravesham BC v Secretary of State for the Environment (1984) 47 P & C R 142; Moore (1999) 77 P & C R 114.
4. The Inspector considered the possible use of a condition. A condition could not overcome the fundamental planning objection that the proposed accommodation was out of scale with the farmhouse and could not in any sense be regarded as ancillary. Failure to impose a condition suggested by a party is not automatically an irregularity: Brightwell v Secretary of State for the Environment (1997) 73 P & C R 418; R (Ayres) v Secretary of State for the Environment Transport and the Regions [2002] EWHC 295 (Admin).
5. The Inspector complied with section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990. He considered the rebuilding of the later brick lean-to, the proposed fenestration and other design details, and was entitled to find that their cumulative effect would fail to preserve the historic character and setting of the listed building. The lack of detail in the plans could properly be taken into account where it affected those matters.
6. The Inspector gave adequate reasons. The reference to possible future pressure for separate use was unfortunate, but the decision letter made clear that the operative conclusion rested on the accommodation’s size, scale, facilities and physical characteristics.

First-instance judicial review proceedings under section 288 of the Town and Country Planning Act 1990. The court dismissed the application to quash the Inspector’s decision.