HERBERT HILEY v THE SECRETARY OF STATE FOR LEVELLING UP, HOUSING AND COMMUNITIES

On a statutory planning appeal, the extent of a building’s curtilage is a question of fact and degree for the decision-maker, applying the legal test that the land must be so intimately associated with the building that it forms part and parcel of it.

There is no rule that curtilage must be small, form one enclosure, or be functionally equivalent or interdependent with the building. Relative size, physical layout, ownership, use and function, and ancillary character may be relevant considerations, but none is determinative and the factors are not exhaustive. An inspector who applies an erroneous legal test materially misdirects himself, even where the ultimate conclusion might otherwise be open to him.

The appellant brought a statutory appeal under section 288 of the Town and Country Planning Act 1990 against an Inspector’s dismissal of his section 195 appeal. The underlying application sought a certificate of lawfulness for a proposed workshop, storage building, hardstanding and access at Station Business Park, Lincolnshire.

The proposed development relied on permitted development rights under Schedule 2, Part 7, Classes H and J of the Town and Country Planning (General Permitted Development) (England) Order 2015. The dispute concerned whether the field on which the development was proposed formed part of the curtilage of existing industrial or warehouse buildings.

The central issue was whether the Inspector had applied the correct legal principles when concluding that the field was outside the buildings’ curtilage.

1. Appeal allowed. The Inspector’s decision was quashed and the matter was remitted to the Secretary of State for a fresh decision under section 195 of the Town and Country Planning Act 1990.

2. The correct curtilage test was that stated in Methuen-Campbell v Walters and approved in R (Hampshire County Council) v Secretary of State for Environment, Food and Rural Affairs: the land must be so intimately associated with the building that it forms part and parcel of it. The question is one of fact and degree for the decision-maker, subject to ordinary public law principles.

3. The Inspector materially misdirected himself by treating curtilage as constrained to a small area around a building and by treating the land as required to form one enclosure with it. Subsequent authority established that there is no legal requirement that curtilage be small, although relative size may remain relevant. Nor is the single-enclosure concept the governing test.

4. The Inspector also erred by relying on physical and functional separation, if that expression was being used as the opposite of functional equivalence or functional interdependence. Those concepts are irrelevant to the governing inquiry. The three Stephenson factors—physical layout, ownership, and use or function—are relevant considerations, not separate or determinative tests.

5. The Inspector’s errors affected his reasoning at several material points. His decision therefore could not stand, notwithstanding that the assessment ultimately remained one for the decision-maker on the facts.

This was a first-instance statutory appeal to the High Court under section 288 of the Town and Country Planning Act 1990. The court quashed the Inspector’s decision and remitted the matter to the Secretary of State for a fresh decision under section 195.