Stuart McQueen v Mid Suffolk District Council

In determining whether land forms part of a building’s curtilage, the decision-maker must apply a fact-and-degree assessment. The question is whether the land is so intimately connected with the building that it forms part and parcel of it. Relevant considerations include physical layout, ownership, use and function, the relative sizes of the land and building, whether the land is ancillary, and the statutory consequences of the conclusion. Historic settlement boundaries may be relevant but are not determinative, particularly where boundaries and curtilages can change over time. A planning officer may assess the evidence in the round and attribute weight as a matter of planning judgment. Permission was granted on grounds alleging failure properly to assess the ancillary relationship and failure to reconcile the reasoning with previous decisions.

The claimant sought permission to bring judicial review proceedings challenging the defendant local planning authority’s grant of a lawful development certificate under section 192 of the Town and Country Planning Act 1990. The certificate concerned a proposed domestic outbuilding at the interested party’s property. The claimed basis of lawfulness was that the outbuilding would stand within the curtilage of a dwellinghouse and would benefit from permitted development rights under Class E of Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015.

Permission had previously been granted on some grounds. The renewed application concerned grounds 4, 5, 8, 9, 10 and 11. The central issues were whether the officer had properly approached the question of curtilage, considered relevant evidence and statutory consequences, and reconciled the conclusion with the site’s planning history.

1. Outcome. Permission was refused on grounds 4, 5, 8 and 11. Permission was granted on grounds 9 and 10.
2. The correct approach to curtilage is whether the land is so intimately connected with the building that it forms part and parcel of it. The assessment is one of fact and degree for the decision-maker, having regard to all relevant considerations. These may include physical layout, ownership, past and present use or function, the relative sizes of the land and building, whether the land is ancillary, and the statutory consequences of treating the land as within the curtilage. The meaning of ancillary must be properly understood.
3. A historic settlement boundary may be relevant to the curtilage assessment, but it is not conclusive. Settlement boundaries and curtilages may change over time. The officer had taken the historic boundary into account and it was not arguable that he had failed to do so.
4. The report’s references to the red-line plan and earlier submissions were fairly read as recitals of the previous application history. They did not show that the officer had treated the red-line boundary as determinative of residential curtilage or adopted the applicant’s formulation of the issue. Ground 5 and ground 11 were therefore not arguable.
5. The officer was entitled to consider the evidence, including the asserted use of the land, aerial photographs and the absence of sale particulars, in the round. The weight given to that evidence was a matter of planning judgment. Ground 8 was not arguable.
6. Ground 9 was arguable because, in light of an admitted error concerning the distance between the house and proposed outbuilding, it was arguable that the officer had erred in considering the ancillary relationship between the house and surrounding land. Ground 10 was arguable because the officer appeared not to have distinguished between quashed reports, the Inspector’s conclusions and his own final redetermination report, or explained the conclusion in light of those earlier comments.

First-instance renewed application for permission to commence judicial review proceedings. Permission had previously been granted on grounds 1, 2, 3, 6, 7 and 12, and refused on grounds 4, 5, 8, 9, 10 and 11. This judgment granted permission on grounds 9 and 10 and refused it on grounds 4, 5, 8 and 11.