Robert Spedding (R on the application of) v Wiltshire Council

For development under Class R of Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015, the proposed use must fall within the statutory definition of the building and its curtilage and comply with all applicable conditions and limitations. Where curtilage is defined by two alternative limbs subject to the lesser-area qualification, the decision-maker must identify and apply the relevant limb and undertake the necessary comparison. A delegated planning decision affecting an individual’s rights must contain reasons under Regulation 7 of the Openness of Local Government Regulations 2014. In assessing fallback development, the decision-maker must first ask whether there is more than a theoretical possibility of implementation, and only then determine the weight to attach to it.

The claimant, a neighbouring landowner, sought judicial review of Wiltshire Council’s decision that prior approval was not required for Schepens International Ltd’s proposed change of use of an agricultural building and adjoining land to flexible commercial use under Class R.

The challenge alleged failure to determine whether the external land fell within the building’s statutory curtilage, failure to give reasons, reliance on traffic movements from a former poultry-farming use without considering whether that use had a real prospect of resuming, and reliance on an earlier allegedly unlawful permitted development notification.

1. Grounds 1 and 1A succeeded. Paragraph X of Part 3 of Schedule 2 to the GPDO contains a specific statutory definition of curtilage. It has two limbs, with the lesser applying. The Council had to determine whether the external land was within the relevant curtilage and carry out the necessary comparative exercise. The Officer’s Report merely recited the definition and concluded that the use illustrated did not exceed 500 square metres. It did not identify the applicable limb, resolve the conflicting plans, or determine whether the external land fell within the curtilage.
2. The Council could not rely on ex post facto evidence from the case officer to supply the missing reasoning. Such evidence may elucidate, and exceptionally correct or add to, stated reasons, but it cannot substantially add to or contradict the official decision documents. The evidence here sought to demonstrate that an issue wholly absent from the Report and Decision had been considered.
3. Regulation 7(2)(b)(ii) of the Openness of Local Government Regulations 2014 applied because the delegated decision engaged the claimant’s rights. Reasons were therefore required. None were given on the curtilage issue. Reliance on the challenged conclusion about traffic impacts to show that rights were unaffected was circular.
4. Ground 2 succeeded. The former poultry use was a fallback development. Applying Gambone, the Council had first to decide whether resumption involved more than a theoretical possibility. Only if that threshold was met could it assess the weight of the resulting traffic comparison. The Council assumed that the former use was the correct comparator and failed to conduct the first-stage inquiry. The resulting traffic consideration was immaterial.
5. Ground 3 failed. The challenge to the November 2020 notification was an impermissible collateral attack on an earlier matter and could not properly be used to reopen the lawfulness of that notification in proceedings challenging the March 2021 decision.
6. The decision was quashed. A declaration was made that Schepens could not proceed with the proposed change of use until the Council redetermined whether prior approval was required. The claimant was entitled to costs, subject to any submissions by the Council.

First-instance judicial review proceedings. No appellate history was stated in the judgment.