Burford v Secretary of State for Communities and Local Government & Anor

Whether land forms part of a dwelling’s curtilage is a question of fact and degree. The decision-maker must consider physical layout, ownership, and use or function, but no single factor is necessarily determinative. Land used for purposes incidental to residential enjoyment may still fall outside the curtilage if it is not attached to the dwelling and does not form one enclosure with it.

For permitted development limits based on building height, “ground level” may be the excavated and levelled ground immediately adjacent to the building. An inspector need consider the alternatives actually proposed, together with any obvious alternative apparent on the evidence, but is not required to search for unsuggested solutions.

The appellant appealed under section 289 of the Town and Country Planning Act 1990 against an inspector’s dismissal of appeals under grounds (a), (c) and (f) of section 174 concerning an enforcement notice issued by Test Valley Borough Council.

The enforcement notice alleged the erection of a building at land near Oakcutts. The appellant argued that the building was within the curtilage of Oakcutts and therefore benefited from permitted development rights under Class E of Schedule 2 to the General Permitted Development Order 2015. He also challenged the inspector’s measurement of the building’s eaves height.

The central issues were whether the relevant land formed part of the dwelling’s curtilage and whether the eaves height exceeded the permitted 2.5 metre limit.

1. The appeal was dismissed. The inspector had not erred in law in concluding that the building was outside the curtilage of Oakcutts and that its eaves exceeded the height permitted by Class E of Schedule 2 to the General Permitted Development Order 2015.
2. A certificate under section 191(6) of the Town and Country Planning Act 1990 conclusively established only that the land could lawfully be used for purposes incidental to enjoyment of the dwelling. It did not determine whether the land was within the dwelling’s curtilage or formed part of its garden. Functional use was relevant to curtilage, but was not determinative. The question whether land was curtilage remained one of fact and degree.
3. The inspector was entitled to give substantial weight to the physical separation of the relevant land by fences and hedges. Curtilage required land to be attached to the house and to form one enclosure with it. The inspector had considered the functional relationship between the dwelling and the land and had given adequate reasons for his conclusion. [2017] EWHC 1493 (Admin) [44]-[47].
4. For the purpose of Article 2(2) of the General Permitted Development Order 2015, the inspector was entitled to measure height from the excavated and levelled ground immediately adjacent to the building. The statutory reference was to the height of the building, not the wider development. The guidance was correctly applied. [2017] EWHC 1493 (Admin) [48]-[51].
5. The inspector’s primary task was to consider the proposals put before him. He was not required to search for solutions. Although an obvious alternative could be considered where apparent on the evidence, no lesser step had been proposed and no obvious alternative was established. [2017] EWHC 1493 (Admin) [52]-[53].

The judgment records that Collins J granted permission to bring the section 289 appeal on 17 January 2017. The High Court (Administrative Court) dismissed the appeal against the planning inspector’s decision dated 8 November 2016.