McGaw v The Welsh Ministers

For permitted development height restrictions, the relevant ground level is generally the level that would exist when the proposed development is completed in accordance with the plans. Existing excavation and interim use of the land are not material unless the proposed backfilling is an artificial device to avoid the restriction. Under Class E, height is assessed by reference to the relevant part of the building, not necessarily the building as a whole. Where a part lies within 2 metres of the curtilage boundary, the immediately adjacent land is not the boundary wall itself but the neighbouring garden beyond it. A quashing order may be accompanied by remittal where the decision-maker must reconsider the matter in accordance with the court’s reasoning.

The claimant sought judicial review under section 288 of the Town and Country Planning Act 1990 of an inspector’s dismissal of his appeal against refusal of a certificate of lawful proposed development. The proposal was a garden room with a roof lantern. The dispute concerned the correct ground levels and the meaning of the expressions relating to ground immediately adjacent to the building in Class E of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995.

The claimant challenged the inspector’s conclusions on statutory construction and natural justice. The natural justice issue became unnecessary if the construction grounds succeeded. The central questions were whether proposed backfilling had to be taken into account and what land was immediately adjacent to the relevant part of the building.

1. Ground levels under Class E. The conditional wording of E.1(e), referring to a height that the building “would exceed”, concerns the state of affairs which would exist if the proposed development were carried out in accordance with the submitted plans. The plans included backfilling beside the northern wall. The existing excavation, its duration and its interim domestic use were therefore irrelevant on the facts.
2. This did not establish an absolute rule that existing ground levels can never be used. Existing levels may be relevant where proposed backfilling is found to be an artificial device designed to raise the apparent ground level and bring the development within the height limit. There was no such finding here. Ground 3 succeeded.
3. Meaning of E.1(f). The reference to “any part of the building” and the subsequent reference to “it” concerned the relevant part of the building. The provision did not require the height of the building as a whole to be assessed merely because the wording differed from E.1(e).
4. The boundary wall could not itself be treated as the immediately adjacent ground, since that would permit a building to rise 2.5 metres above the wall and undermine the purpose of the restriction. The inspector had found that the proposed building would abut the existing wall, and the plans disclosed no gap whose bottom could sensibly be treated as adjacent ground. The relevant adjacent land was the neighbour’s garden, which was less than 2.5 metres below the nearest part of the building. Ground 4 succeeded.
5. The remaining challenge therefore did not require determination. On the facts accepted by the inspector, there was only one correct answer: the proposed development fell within Class E.
6. Under rule 54.19(2) of the Civil Procedure Rules 1998, the appropriate remedy was to quash the inspector’s determination and remit the matter to the Welsh Ministers for reconsideration in accordance with the judgment. The court did not substitute its own decision.

The judgment describes earlier planning appeals and a previous judicial review concerning the first application. The present proceedings concerned the inspector’s decision on the second application.

• High Court (Administrative Court): the inspector’s determination was quashed and the matter was remitted to the Welsh Ministers for reconsideration in accordance with the judgment.