O'Flynn v Secretary of State for Communities and Local Government & Anor

On a statutory challenge to a planning inspector’s decision, the court must not rehear planning merits or substitute its own judgment. It may intervene where the inspector misdirects himself, ignores relevant considerations, reaches an irrational conclusion, or gives inadequate reasons. In assessing incidental residential use, gardening, cultivation for household consumption, and recreational enjoyment of cultivated land may all be relevant. A claimant’s use of land may also remain continuous when the claimant is temporarily absent. Where the evidence raises a possible lawful-use route under the dwelling-house curtilage exception, the inspector must address it, even where the applicant is acting in person. A decision may be quashed where these errors could have affected the outcome.

The claimant sought under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision dismissing his appeal against refusal of a certificate of lawful existing use or development under section 191. The claim concerned the northern part of land adjoining the claimant’s dwelling-house, which he said had become part of an extensive residential garden. The inspector concluded that the land had no residential use, and failed to consider whether it was within the dwelling-house curtilage. The issues were whether the inspector had erred in evaluating the evidence, excluding gardening and recreational activities, and failing to address the statutory curtilage exception.

1. Applicable standard. The claim was a statutory review under section 288 of the Town and Country Planning Act 1990. The court could not review the planning merits or substitute its own assessment for the inspector’s judgment. Intervention was justified for an error of law, failure to consider relevant matters, irrationality, procedural impropriety, or inadequate reasons.
2. Evaluation of incidental residential use. The inspector erred by failing to address the council’s concession that the northern land had been used for incidental residential purposes from about April 2013. If the inspector rejected the parties’ consensus, he had to explain why. He also erred by discounting gardening, landscaping, planting, cultivation for household consumption, and maintenance. Such activities may be quintessentially incidental to residential use. Recreational use, including strolling, sitting out, walking dogs, and enjoying cultivated land, may likewise amount to incidental residential use, depending on the facts.
3. The inspector also treated the claimant’s intermittent physical presence as inconsistent with continuing use. That approach was wrong in principle. Land kept available for residential enjoyment may remain in residential use even when the occupier is not physically present at every hour.
4. Curtilage exception. The inspector was required to consider whether the northern land was within the curtilage of the dwelling-house and therefore benefited from the exception in section 55(2)(d) of the Town and Country Planning Act 1990. Section 191(2)(a) provided two potentially alternative routes to lawfulness: absence of development because of the curtilage exception, or expiry of the enforcement period. The claimant’s status as a litigant in person did not excuse consideration of the issue, particularly since it had been raised in his appeal documents and supported by statutory and case-law submissions.
5. The errors could have affected the result. The decision was quashed. The application for damages was refused because section 288 provided no damages remedy. The claimant could apply separately for costs.

First-instance statutory review. No earlier appellate decision is stated in the judgment.