“Class H – extensions etc of industrial and warehouse H.2 Development is permitted by Class H subject to the following conditions - (a) the development is within the curtilage of an existing industrial building or warehouse … Class J – hard surfaces for industrial and warehouse premises Permitted development J. Development consisting of – (a) the provision of a hard surface within the curtilage of an industrial building or warehouse to be used for the purpose of the undertaking concerned; …”
“8. The appeal site comprises a parcel of land that includes a large pond and interceptor channel that is used for surface water drainage from the adjacent industrial/warehouse buildings as a sustainable urban drainage system. With the exception of the pond and interceptor channel, the land is in a natural state and free from built-form. The land is enclosed by hedging and trees on the north, east and west boundaries. The southern boundary comprises a hedge and fencing, on the opposite side of which runs a public footpath parallel to the site. On the southern side of the footpath is another hedge within which is a double gate allowing access from the adjacent car park/open storage hardstanding area. 9. The industrial/warehouse buildings and surrounding parking/open storage hardstanding area to the south and south west of the parcel of land that is the subject of this appeal has a definitive commercial appearance. This is in marked contrast to the natural, verdant appearance of the appeal site, which, visually and spatially, is more closely associated with the surrounding open land to the north and west. Given this striking difference in character and appearance between the appeal site and the adjacent industrial/warehouse buildings and surrounding parking/open storage hardstanding area, and the physical barrier between the two sites, in the form of the hedgerows and gated access, I find that the subject land is physically separate from the main industrial/warehouse use.”
“(1) If any person - (a) is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds - (i) that the order is not within the powers of this Act, or (ii) that any of the relevant requirements have not been complied with in relation to that order; or (b) is aggrieved by any action on the part of the Secretary of State [or the Welsh Ministers] to which this section applies and wishes to question the validity of that action on the grounds - (i) that the action is not within the powers of this Act, or (ii) that any of the relevant requirements have not been complied with in relation to that action, he may make an application to the High Court under this section. … (4A) An application under this section may not be made without the leave of the High Court.”
“(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to "rehearse every argument relating to each matter in every paragraph" (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26, at p.28). (2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the "principal important controversial issues". An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2)[2004] 1 WLR 1953 , at p.1964B-G). (3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, "provided that it does not lapse into Wednesbury irrationality" to give material considerations "whatever weight [it] thinks fit or no weight at all" (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment[1995] 1 WLR 759 , at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for[2001] EWHC Admin 74 , at paragraph 6). (4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council[2012] PTSR 983 , at paragraphs 17 to 22). (5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann L.J., as he then was, South Somerset District Council v The Secretary of State for the Environment (1993) 66 P. & C.R. 80, at p.83E-H). (6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government[2012] EWHC 1419 (QB) , at paragraph 58). (7) Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill L.J. Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government [2013] 1 P. & C.R. 6, at paragraphs 12 to 14, citing the judgment of Mann L.J. in North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P. & C.R. 137, at p.145).”
“19. The approach that this Court should take to a challenge to a decision letter is extremely well known and set out by the Court of Appeal in Barwood Strategic Land v East Staffordshire[2017] EWCA Civ 893 at [50] and the Supreme court in Suffolk Coastal DC v Hopkins Homes2017 UKSC 37 . The two most important principles relevant here are that the decision letter should be read as a whole, and the Court should not take an overly legalistic approach. Mr Clay sought to persuade me that because this was a challenge to an LDC, specifically on the grounds of the meaning of ‘curtilage’, a stricter approach should be taken to the Inspector's reasoning and analysis. This was on the basis that the decision did not turn on the type of planning judgment which arose in Hopkins Homes or similar types of cases. However, as I have explained above the decision as to the curtilage is one of fact and degree and therefore necessarily involves a judgment by the decision maker. In my view the principles on the Court's approach to decision letters is no different in this case than in any other.”
“… so intimately connected with [the building] as to lead to the conclusion that the former in truth forms part and parcel of the latter.”
“[The question of determining the extent of the curtilage] 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.”
“14. Turning to the crux of the matter – whether the appeal site falls within the curtilage of the industrial/warehouse use – I have been presented with various caselaw regarding curtilage. 15. The Court of Appeal judgment of Methuen-Campbell v Walters[1979] 1 QB 525 established that for land to fall within the curtilage of a building, it must be intimately associated with the building to support the conclusion that it forms part and parcel of the building. In McAlpine v SSE [1995] 159 L.G. Rev. 429 it was held that ‘there is no rigid definition to a curtilage’, but that: it is a feature constrained to a small area about a building; apparently in ‘intimate association’ with such building; and no physical enclosure is necessary to define it, ‘but the considered land must be part of the enclosure with the house’. 16. Whilst the pond serves as a drainage system for the buildings, due to their physical and functional separation and being located within separately defined parcels of land, I do not consider that this amounts to an intimate association. 17. The Court of Appeal judgement of Att. Gen Ex Rel. Sutcliffe v Calderdale BC[1982] P&CR 399 set out three tests in the consideration of curtilage; (i) the physical ‘layout’ of the building and structure; (ii) their ownership past and present; and (iii) their use or function past and present. This was later reaffirmed in Burford v SSCLG and Test Valley DC[2017] EWHC 1493 (Admin) and there it was noted that ‘Whether something falls within a curtilage is a question of fact and degree and thus primarily a matter for the decision-maker’ and ‘It was for the Inspector to decide what weight should be given to each of the relevant factors.’ 18. There is no dispute that the pond and the parcel of land in which it is located is within the same ownership of the adjacent industrial/warehouse land and buildings. However, for the same reasons why I have found that it is not within the same planning unit as the industrial/warehouse buildings, ie the physical and functional separation, I do not consider that the land in question satisfies Sutcliffe tests (i) and (iii). Consequently, it does not fall within the curtilage of the industrial/warehouse buildings. 19. The appellant argues that the planning history of the site supports the view that it falls within the curtilage of the buildings as it has been included within the red edged area on previous planning applications, most notably LPA ref: S/169/01679/08 which was granted permission on appeal1. However, the red line on a planning application merely defines the application site. It cannot be relied upon to definitively define a planning unit or curtilage. I note that the Inspector in the previous appeal decision noted that the “site itself includes an undeveloped “field” to the north”, which would appear to be the land that is the subject of this appeal. In his consideration of the proposed creation of a car park and the relocation of the car and a caravan sales in the field to the north of the site, the Inspector went on to state that “there would be a material extension of the business into the surrounding open land”, which clearly indicates that he did not consider the field to form part of the existing business. 20. On the information before me, the land concerned does not have a close visual and spatial relationship with the industrial/warehouse buildings nor does it form one enclosure with them. There is not an intimate association between what is essentially a utility service and the buildings. Taking account of the factors as a whole, I am not satisfied that the proposed development would have been built on land comprising the curtilage of the industrial/warehouse buildings when the application was made. Conclusion 21. For the reasons given above I conclude that the Council’s refusal to grant a certificate of lawful use or development in respect of a workshop/storage building, associated hard standing and vehicular access was well-founded and that the appeal should fail. I will exercise accordingly the powers transferred to me in section 195(3) of the 1990 Act as amended.”
“…he did not consider the field to form part of the existing business.”
“From these cases it appears that the concept of curtilage is not capable of such easy and precise definition that it can immediately be seen to apply, or not apply, to a given situation. Fact and degree play a very large part in such a question. Accordingly provided the principles derived from these cases are followed or not breached the Court should be cautious in finding that the Inspector has fallen into error in determining that a particular piece of land is, or is not, within the curtilage of a dwelling. I refrain from seeking to distil rigid specified principles from the judgments which I have cited.”
“18. From these cases I draw the following propositions: i) The extent of the curtilage of a building is a question of fact and degree, and therefore it must be a matter for the decision-maker, subject to normal principles of public law; ii) The three Stephenson factors must be taken into account; a) Physical layout; b) The ownership past and present; c) The use or function of the land or buildings, past and present. iii) A curtilage does not have to be small, but that does not mean that the relative size between the building and its claimed curtilage is not a relevant consideration. Skerritts p.67; iv) Whether the building or land within the claimed curtilage is ancillary to the main building will be a relevant consideration, but it is not a legal requirement that the claimed curtilage should be ancillary; Skerritts p.67C; v) The degree to which the building and the claimed curtilage fall within one enclosure is relevant, Sumption at para 17 and the quotation form the OED of curtilage as "A small court, yard or piece of ground attached to a dwelling house and forming one enclosure with it". In my view this will be one aspect of the physical layout, being the first of the Calderdale factors. vi) The relevant date on which to determine the extent of the curtilage is the date of the application; but this will involve considering both the past history of the site, and how it is laid out and used at the time of the application itself; Sumption at [27]. It appears from Sumption that the Judge considered future intended use of the land or buildings may be relevant, but in my view some care would be needed in applying this proposition to the facts of a particular case. A developer cannot change the curtilage simply by asserting that s/he intends to use the site in a particular way in the future.”
“114. Holgate J said in the present case at [123] that the guidance in paragraph 18 of Challenge Fencing, although helpful, and sufficient for the purposes of that case, did not purport to be exhaustive on the approach to identifying a "curtilage," and it is important to read that decision as a whole. I would strongly endorse that observation. Just as it would be inadvisable to try and define "curtilage", there are obvious dangers in attempting to be too prescriptive about what factors are relevant to determining the curtilage in a given case, or in trying to create an exhaustive list of them. Reading her judgment as a whole, it is plain that Lieven J did not fall into that trap. Paragraph 18 does no more than helpfully identify some important propositions drawn from some of the earlier authorities. 115. What matters for present purposes is that (i) Lieven J approached the question on the basis that the ‘part and parcel’ test adopted in Dyer but taken from Methuen-Campbell was correct; and (ii) she expressly acknowledged (at [31]) that, whilst the facts that the land and building were being used together and were closely related to each other were relevant considerations, there may be situations where the planning unit is different from (and almost certainly larger than) the curtilage of the building. The two concepts are not the same.”
“- curtilage is constrained to a small area about a building - an intimate association with land which is undoubtedly within the curtilage is required in order to make the land under consideration part and parcel of that undoubted curtilage land - it is not necessary for there to be physical enclosure of that land which is within the curtilage, but the land in question at least needs to be regarded in law as part of one enclosure with the house.”
“106. … Robert Walker LJ said in terms [in Skerritts]that the decision in Dyer was "plainly correct". He quoted with approval the passage in Nourse LJ's judgment to which I have referred in paragraph 75 above, thereby accepting that there are limits to the extent of the curtilage, and that in that case, the Court of Appeal had been right to decide that it did not include the park. However, he said the Court went further than was necessary to go in expressing the view that the curtilage of a building must always be small, or that the notion of smallness is inherent in the expression. As he correctly observed, the observations about smallness were not necessary to the decision. 108. At p.67 Robert Walker LJ pointed out that Nourse LJ had recognised in Dyer that in the case of a "principal mansion house", which is what Grimsdyke was built as, the stables and other outbuildings were likely to be included within its curtilage. He observed that the curtilage of a substantial listed building is "likely to extend to what are or have been, in terms of ownership and function, ancillary buildings", although he still accepted that "in the nature of things, the curtilage within which a mansion's satellite buildings are found is bound to be relatively limited." However, he said that the concept of smallness in that context was so completely relative as to be almost meaningless, and unhelpful as a criterion. 109. As Lieven J put it in Challenge Fencing at [29], the Court of Appeal in Skerritts made it clear that there is no test that a curtilage has to be small; but that does not mean that relative size is an irrelevant consideration. As she said, it may well be the case that a large house would more easily be found on the facts to have a curtilage that extended to outbuildings, than if the house were a small cottage. It was a relevant factor in Challenge Fencing itself that the building was small and the curtilage being claimed was extensive. It was also found to be plainly relevant that a number of other buildings on the site on which the building stood had been demolished, and would have had their own curtilages.”
“65. 1 have quoted the entirety of the relevant passage in Buckley LJ's judgment because the introductory paragraph illustrates that the test is not whether the terminal building could function without an operational airport, nor whether the Application Land was necessary for the functioning of the airport. Nor is the test whether the Application Land and the terminal building together form one part of an operational unit or whether they fall within a single enclosure. The question whether, by reason of the association between them, the law would treat them as if they formed one parcel, or as an integral whole, depends on the application of the "part and parcel" test to the facts of the particular case.”