Sumption and Another v London Borough of Greenwich
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes,Lord Justice Jacob |
| Judgment Date | 08 April 2008 |
| Neutral Citation | [2008] EWCA Civ 404 |
| Docket Number | Case No: C1/2007/2898 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 April 2008 |
[2008] EWCA Civ 404
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE COLLINS)
Royal Courts of Justice Strand, London, WC2A 2LL
Lord Justice Jacob and
Lord Justice Hughes
Case No: C1/2007/2898
Mr M Horton QC (instructed by Bates, Wells and Braithwaite LLP) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
(As Approved)
On 17 January 2007 the local planning authority granted a Certificate of Lawful Use under section 192 of the Town and Country Planning Act 1990. It certified that a wall which the interested party wished to build along the boundary between his l and in Greenwich and the street would be permitted development and thus lawful because it would fall within the General Development Order. On 30 November 2007, upon application for judicial review made by neighbours, Collins J quashed the certificate on the grounds that the wall would not be within the general development order. The interested party seeks leave to appeal.
The interested party lives in a house which has stood for many years and is a listed building. It abuts the street and has for many years had an established garden to its north-west. Until recently the garden fell away from the street as one moved north-west and there was a roughly triangular sliver of l and in other ownership between the street and the garden. This sliver narrows to a point at its south- east end, very close to the house. It broadens as one travels north-west along the street and down the garden away from the house and then it narrows again because the street veers round to the right towards the north.
Recently the interested party has bought the sliver of l and to tidy up his boundaries, exp and his garden and bring his l and up to the street. The wall that he wants to build would run along his new street-side boundary for a distance of about 125 yards, thus separating his newly exp and ed garden from the street. Ordinarily a wall not more than a metre high in this position would undoubtedly be development permitted by the General Development Order. The reason why it is said that it is not is because the interested party's house is listed. The relevant part of the Order is schedule 2, Part 2, paragraph A(1)(d). That takes outside what would otherwise be permitted development, development which:
“would involve development within the curtilage of, or to, a gate, fence, wall or other means of enclosure surrounding a listed building.”
The judge held that the proposed wall would be within the curtilage of the listed building and that it would be development to a means of enclosure surrounding it. Plainly, there are two limbs to A(1)(d). If either condition found by the judge was fulfilled then his decision is right and the Certificate of Lawful Use is unlawful.
First, therefore, curtilage. In very broad terms the curtilage of a house is an area of l and forming with it a single messuage or enclosure, in other words a single unit. For the purposes of this application for permission I accept, without reciting the authorities, that: one, a single conveyance is neither necessary nor sufficient to bring the l and within the concept of cartilage; two, co-occupation of house and l and is not enough; three, the test is not whether the l and serves the house nor even whether it is useful, advantageous or necessary for those are adjectives which could apply for example to a paddock adjoining or even across the road from the house. I accept also for present purposes that the question whether l and is or is not within the curtilage of the house is essentially one of fact and degree.
The judge held that on the facts of this case there was only one possible conclusion, namely that this l and...
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