Hilton, R (on the application of) v Secretary of State for the Home Department

For the purposes of Part 1 Class A of the Town and Country Planning (General Permitted Development) (England) Order 2015, the enlarged part of the dwellinghouse ordinarily means the development proposed under Class A, not earlier extensions. The relevant exceptions must be applied to that proposed development, while comparisons with the original dwellinghouse or the existing dwellinghouse are made as the relevant provision requires. The question remains one of fact and degree, assessed holistically, and earlier works may form part of a single operational development where the facts justify that conclusion.

The claimant challenged an inspector’s dismissal of an appeal concerning prior approval for a further single-storey rear extension to a dwellinghouse. The inspector treated an earlier two-storey extension, constructed pursuant to planning permission granted in 2000, as part of the enlarged part of the dwellinghouse for the purposes of Part 1 Class A of the Town and Country Planning (General Permitted Development) (England) Order 2015. The claimant also challenged the inspector’s refusal of an award of costs.

The central issue was whether the phrase “the enlarged part of the dwellinghouse” referred to the proposed Class A works alone or included earlier extensions.

1. The claim concerning the substantive planning decision was allowed. The claim concerning the refusal of costs was dismissed.
2. Under Class A, the relevant operational development must be identified as a matter of fact and degree, approached holistically. The court must consider what particular development is being carried out and whether it falls within the permitted development class.
3. For the Class A exceptions, “the enlarged part of the dwellinghouse” refers to the proposed enlargement under Class A. It does not ordinarily include earlier extensions, whether carried out under permitted development rights or pursuant to express planning permission.
4. The wording and structure of the exceptions supported that construction. Where the Order intended earlier development or the original dwellinghouse to be taken into account, it used specific language such as “original dwellinghouse” or “existing dwellinghouse”. The same approach applied to paragraphs A.1(f), (g), (h), (i) and (j), and was consistent with the treatment of proposed works under Classes B and C.
5. The reference to “the enlarged part” in the notice required by paragraph A.4(5) likewise concerned the maximum height of the proposed enlargement, not the height of earlier development. The concern about incremental or “piggy-backing” development did not justify including earlier extensions in the height or storey analysis, although the overall distance from the original rear wall remained relevant where the Order so provided.
6. The reasoning in Royal Borough of Kensington & Chelsea v Secretary of State for Communities & Local Government [2015] EWHC 2458 (Admin) supported the conclusion that the enlarged part referred to the development proposed under the Order. Any wider implication from paragraph 35 of that judgment concerning earlier extensions was obiter.
7. The inspector therefore erred in law by including the 2000 extension in the enlarged part. That error was material and the decision dismissing the appeal was quashed. The costs decision disclosed no error of law and was left standing. The claimant was awarded costs assessed at £10,742.40, and permission to appeal was refused.

The judgment was a first-instance judicial review. The court quashed the inspector’s decision dismissing the planning appeal, but dismissed the challenge to the separate costs decision.