Denis Lowe v (1) First Secretary of State and Tendring District Council
| Jurisdiction | England & Wales |
| Judge | SIR RICHARD TUCKER |
| Judgment Date | 06 February 2003 |
| Neutral Citation | [2003] EWHC 537 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4502/2002 |
| Date | 06 February 2003 |
[2003] EWHC 537 (Admin)
Sir Richard Tucker
CO/4502/2002
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
MR I ALBUTT (instructed by Messrs Sharpe Pritchard, London) appeared on behalf of the Appellant
MISS S DAVIES (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the First Respondent
I have before me an appeal under section 289 of the Town and Country Planning Act 1990. The appellant, Denis Lowe, claims that the decision made by the first defendant, the First Secretary of State, by his appointed inspector pursuant to section 174 of the Act and given by letter dated 2nd September 2002, whereby he upheld an enforcement notice dated 11th February 2002, should be quashed.
The appellant is the owner and occupier of a Grade II listed building, known as Alresford Hall near Colchester. A description of the site is contained in paragraphs 2 to 7 of the decision letter. In addition I have a number of plans illustrating the site, and in particular a plan at page 64 of the appeal bundle showing the hall and two other listed buildings, a barn and a walled garden. Also, importantly, the plan shows the main driveway leading from the hall to Ford Lane.
The subject matter of the enforcement notice is a 1.8 metre high chain link fence, 650 metres long overall, running alongside the driveway. The notice asserted that it had been erected without planning permission and required its removal.
The erection of the fence would be permitted development authorised by class A of Part II of Schedule 2 to the General Permitted Development Order 1995, unless:
"A.1(d) It would involve development within the curtilage of, or to a gate, fence, wall or other means of enclosure surrounding, a listed building."
The appeals to the inspector, and before me, raise the issue of whether the erection of the fence was development within the curtilage of a listed building, namely Alresford Hall. If it was within the curtilage, as the inspector concluded, then planning permission was required for its erection. No such permission had been obtained, and the inspector refused to grant it. Therefore he upheld the enforcement notice.
Counsel for the appellant, Mr Albutt, concedes that the inspector correctly understood that this was the main issue, subject to a gloss which he placed on the statutory provision. The complaint before me concerns the inspector's analysis of and conclusions upon the curtilage issue, which it is submitted reveal clear errors of law.
It is further submitted that the inspector wrongly took into account the reason given by the appellant for erecting the fence as a key factor in his analysis of the extent of the curtilage of Alresford Hall.
Therefore I turn to the decision letter. At paragraph 12 the inspector states that the main issue is whether or not the fence is within the curtilage of or is a means of surrounding a listed building. Had he restricted the test to whether or not the fence is within the curtilage of a listed building, no complaint could be made. However the reference to a means of enclosure surrounding a listed building is in my view unwarranted by and contrary to the terms of the statutory provision, and is inappropriate.
At paragraph 18, under the rubric "use or function" the inspector sets out his understanding of the use of the land and the function of either the fence or the land, in these terms:
"18. My understanding of the way in which the land in the vicinity of the Hall is used is based on what I saw during my visit. Whatever use the land is put to it is evident that Mr Lowe wishes to enclose at least part of it. In a letter to the Council dated 13 August 2001 Mr Lowe states that 'This fence (the fence subject to the notice) is necessary for our safety and the security of the property in order to stop the complainers ripping up newly planted trees, cutting down our shrubs, digging holes on our property, hiding in the woods near our house armed, abusing our employees.' In my view the reasons given by Mr Lowe for erecting the fence are connected with an attempt (successful or not) to enclose the land within his ownership. The reasons given for erecting the fence suggest to me that it is either defining or lying within the curtilage —it is most unlikely that it is outside the curtilage."
Mr Albutt submits that in this passage the inspector is clearly, and erroneously, relying on the reason why the fence was erected as an indication of whether it is within or without the curtilage. It is submitted that for the purpose of deciding whether development is authorised by Class A or is excluded by paragraph A.1(d) it is necessary to identify the curtilage of the relevant listed building prior to the carrying out of that development. If prior to carrying out the development the land in question is not within the curtilage, then the development can be carried out, and the fact of it having taken place cannot change the extent of the curtilage.
Miss Davies, on behalf of the respondent, accepts that the question is what the curtilage was when the fence was erected. She submits that it is permissible to look at the reason for erection in order to cast light on what the use and function of the land was at the material time.
In so far as there is a difference of opinion between counsel, I prefer Mr Albutt's submissions. However, whatever view is preferred, the question remains the same: at the time this fence was erected was it or was it not within the curtilage of the hall?
What is the meaning to be ascribed to the word "curtilage"? Not every dictionary condescends to mention it. However in the Oxford English Dictionary it is defined in these terms:
"A small court, yard, garth or piece of ground attached to a dwelling house, and forming one enclosure with it, or so regarded by the law; the area attached to and containing a dwelling house and its outbuildings."
In the Shorter Oxford Dictionary it is defined as:
"A small court, yard, a piece of ground attached to a dwelling house, and forming one enclosure with it."
A more succinct definition is given in Chambers 20th Century Dictionary:
"A court attached to a dwelling house."
The Universal Dictionary defines it as:
"The enclosed land surrounding a house or dwelling."
I have been referred to three authorities. The first is Attorney-General ex relater Sutcliffe and Others v Calderdale Borough Council (1982) 46 P&CR 399. At page 406 Stephenson LJ referred to the agreement between counsel and the Bench that:
"Three factors have to be taken into account in deciding whether a structure (or object) is within the curtilage of a listed building … whatever may be the strict conveyancing interpretation of the ancient and somewhat obscure word 'curtilage'. They are (1) the physical 'layout' of the listed building and the structure, (2) their ownership, past and present, (3) their use or function, past and present. Where they are in common ownership and one is used in connection with the other, there is little difficulty in putting a structure near a building or even some distance from it into its curtilage."
The second decision is that of the Court of Appeal in Dyer v Dorset County Council [1989] 1 QB 346, and I refer to the following passages in the judgment of Lord Donaldson of Lymington MR, commencing at page 355B:
"Thus the sole issue is whether Mr Dyer's house is or is not within the curtilage of another building or, by the application of section 6 of the Interpretation Act 1978, of more than one other building. This is a question of fact and degree and thus primarily a matter for the trial judge, provided that he has correctly directed himself on the meaning of 'curtilage' in its statutory context."
At letter D:
"Parliament has not seen fit to define the word 'curtilage' in this statutory context and we have to regard to dictionaries and to such authorities as to its meaning as existed in 1980 and 1984.
His Lordship then cites from the Shorter Oxford Dictionary, as I have done:
"In Jepson v Gribble (1876) 1 TC 78 the issue was whether the house occupied by the medical superintendent of an asylum was part of the asylum. As in the present case, the house fronted on to a public road and had access from the back to the asylum itself, although it would appear that it was very much closer than to the asylum than are the lecturers cottages to any other college buildings. Kelly CB said, at page 80:
'it is within the walls; it is part of the curtilage, in the language of the old law, and it is for the residence of a person whose attendance may be required at any moment, and who ought therefore to be at hand, and for that purpose it is put within the grounds; it is a part of the premises themselves, and with a ready, rapid, and almost instantaneous communication with the building which contains the lunatics.'"
I then turn to page 356D:
"There are also a number of ecclesiastical authorities to the effect that a curtilage must be near a house and must 'belong' to it …"
Reference is made to the case of Methuen-Campbell v Walters [1979] QB 525 19. At letter F Lord Donaldson continues:
"Goff LJ, at p 535, held that the decision of this court in Trim v Sturminster Rural District Council [1938] 2 KB 508 confined 'appurtenances' to the curtilage of the house and in the following pages of his judgment expressed the view that the curtilage of a house is narrowly confined to the area surrounding it and did not extend to this paddock....
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