Lowe v First Secretary of State & Anor

J U D G M E N T

1. SIR RICHARD TUCKER: 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.

2. 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.

3. 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.

4. 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."

5. 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.

6. 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.

7. 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.

8. 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.

9. 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."

10. 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.

11. 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.

12. 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?

13. 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."

14. 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."

15. 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. Buckley LJ said, at pp 543-544:

'In my judgment, for one corporeal hereditament to fall within the curtilage of another, the former must be so intimately associated with the latter as to lead to the conclusion that the former in truth forms part and parcel of the latter. There can be very few houses indeed that do not have associated with them at least some few squares yards of land, constituting a yard or a basement area or passageway or something of the kind, owned and enjoyed with the house, which on a reasonable view could only be regarded as part of the messuage and such small pieces of land will be held to fall within the curtilage of the messuage. This may extend to ancillary buildings, structures or areas such as outhouses, a garage, a driveway, a garden and so forth. How far it is appropriate to regard this identity as parts of one messuage or parcel of land as extending must depend on the character and the circumstances of the items under consideration. To the extent that it is reasonable to regard them as constituting one messuage or parcel of land, they will be properly regarded as all falling within one curtilage; they constitute an integral whole ...'"

Then finally at letter G:

"'Curtilage' seems always to involve some small and necessary extension to that to which the word is attached."

16. Then I look at the judgment of Nourse LJ in the same case, page 358B. He says:

"I agree. The derivations mentioned in the Oxford English Dictionary (French, courtil - a little court or garth; Italian, corte; Mediaeval Latin, cortile or curtile - a court or yard) rather suggest that 'curtilage' started life as a word describing a small area enclosed by walls or buildings, the smallness of the area being emphasised by the diminutive suffix 'age', as in village. The need for physical enclosure of the area having disappeared in current usage, the dictionary definition, which I quote in full, is for most present-day purposes adequate."

That is the quotation to which I have already referred from the Oxford English Dictionary.

17. At letter F of the same page Nourse LJ says this:

"While making every allowance for the fact that the size of a curtilage may vary somewhat with the size of the house or building, I am in no doubt that the 100 acre park on the edge of which Mr Dyer's house now stands cannot possibly be said to form part and parcel of Kingston Maurward House, far less of any of the other college buildings. Indeed, a park of this size is altogether in excess of anything which could properly be described as the curtilage of a mansion house, an area beyond which no conveyancer would extend beyond that occupied by the house, the stables and other outbuildings, the garden and the rough grass up to the ha-ha, if there was one."

18. Finally, a short passage from the judgment of Mann LJ, at page 359C:

"The word 'curtilage' is a term of art and, in employing it, the draftsman and Parliament must have had regard to its meaning as such a term. Its meaning as a term was discussed in Metheun-Campbell v Walters [1979] QB 525. It appears from that decision that the meaning of the word 'curtilage' is constrained to a small area about a building. The size of the area appears to be a question of fact and degree."

19. Finally, the case of Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions and another [2000] 2 PLR 84. In that case the Court of Appeal described the decision in Dyer as plainly correct, though commenting that it went further than was necessary in expressing the view that the curtilage of a building must always be small. The Court of Appeal held that the curtilage of a substantial listed building was likely to extend to what were or had been, in terms of ownership and function, ancillary buildings. The expression "curtilage" could not usefully be called a term of art; it is a question of fact and degree.

20. In my view the inspector fell into error in taking into consideration and relying upon the reasons for the erection of the fence. Those reasons cannot affect the character of the land upon which it was erected, or the question of whether or not that land fell within the curtilage of the hall. The reasons given for erecting the fence cannot either define the curtilage or show that the fence or the land on which it was erected lay within the curtilage. I disagree with the inspector's conclusion that it is most unlikely that the fence is outside the curtilage.

21. Of the authorities cited to me, I derive most assistance from the decision of the Court of Appeal in Dyer v Dorset County Council , and in particular the judgment of Nourse LJ in the passage already referred to at page 358F-G. The expression "curtilage" is a question of fact and degree. It connotes a building or piece of land attached to a dwelling house and forming one enclosure with it. It is not restricted in size, but it must fairly be described as being part of the enclosure of the house to which it refers. It may include stables and other outbuildings, and certainly includes a garden, whether walled or not. It might include accommodation land such as a small paddock close to the house. But it cannot possibly include the whole of the parkland setting in which Alresford Hall lies, nor the driveway along which the fence was erected. It could not sensibly be contended that the site of the fence was attached to the hall, or that it formed one enclosure with it, or was part of the enclosure of it.

22. Moreover the inspector appears to have placed undue emphasis upon, and to have been influenced by, the fact that the site of the fence was within the same ownership as the hall, so as to suggest that he equated curtilage with ownership. As the cases show, ownership of the hall may be a factor to be taken into account. However it is not the determinative factor. It was in my judgment wrong of the inspector to have placed reliance on his perceived view that the reasons given by the appellant for erecting the fence were connected with an attempt to enclose the land within his ownership, and in particular to rely on that as a reason for concluding that the fence lay within the curtilage of the hall. It might be difficult to say that a piece of land fell within the curtilage of a dwelling house where the two were in different ownerships, but it does not follow that where they are in the same ownership one must form part of the curtilage of the other.

23. For the reasons I have set out, I take the view that the inspector came to an erroneous decision which cannot stand and which must be quashed.

24. MR ALBUTT: I am obliged, my Lord. The first point that I would make for the shorthand writer is that the correct case citation for the Attorney-General ex relat er Sutcliffe v Calderdale Borough Council is (1982) 46 P&CR 399.

25. SIR RICHARD TUCKER: Thank you very much, Mr Albutt. I derived the date, I think, from a passage in the judgment. It does not necessarily follow that the report bore the same date. Thank you.

26. MR ALBUTT: Following that, my Lord, in the light of your judgment, I would ask for the costs of the appellant against the first defendant secretary of State, which I anticipate is not resisted.

27. SIR RICHARD TUCKER: Can you oppose that application, Miss Davies?

28. MISS DAVIES: I do not resist it. I may have some very small submissions on the actual schedule of costs, my Lord.

29. SIR RICHARD TUCKER: But in principle you cannot object to an order for costs, can you?

30. MISS DAVIES: Indeed, my Lord.

31. SIR RICHARD TUCKER: Very well. Appellant's costs to be borne by the first defendant.

32. MR ALBUTT: My Lord, I have a schedule of costs of the appellant, if I may pass that to you, in the sum of £10,860.53p. But I understand that my learned friend very helpfully has put me on notice that she has one point to raise concerning the schedule.

33. SIR RICHARD TUCKER: I have not seen your schedule. I have a schedule from the Treasury Solicitor.

34. MR ALBUTT: I apologise for that, my Lord, but perhaps I may hand this one up to you? ( Handed )

35. SIR RICHARD TUCKER: Yes. What is your objection, Miss Davies?

36. MISS DAVIES: It is a small point, my Lord. Your Lordship sees on the second page of the schedule, under "counsel's fees", "skeleton argument substantive £600" is included --

37. SIR RICHARD TUCKER: The second page you say?

38. MISS DAVIES: Third, I am sorry, my Lord.

39. SIR RICHARD TUCKER: Yes.

40. MISS DAVIES: £600 for the skeleton argument for the substantive hearing and £500 for the skeleton argument for the permission hearing. I do not know if your Lordship has had the advantage of seeing the skeleton argument for the permission hearing, but it is in fact an almost identical document. As far as I can see all that has happened is that one paragraph has been deleted and another paragraph has been split in two. So I would say, in those circumstances, it is inappropriate for a further £600 there to be paid by the Secretary of State for the preparation of the second skeleton argument. Your Lordship sees Mr Albutt's brief fee there as well. Doubtless that would include his own preparation and reading of the relevant authorities. This is a particular item that is charged, the skeleton argument, and I say that all that has been done is the skeleton that was used for the permission hearing has had a paragraph deleted and a paragraph separated into two paragraphs. The Secretary of State should not have to pay £600 for that.

41. SIR RICHARD TUCKER: Mr Albutt, how many hours' work does this fee of £600 represent?

42. MR ALBUTT: That represents about 3½ hours, my Lord. As you will appreciate, it was not simply a case of my adopting the skeleton argument that had been put before the judge on the occasion that leave was applied for. I was not available and although I drafted the claim form, other counsel, Mr Michael Bedford, prepared the skeleton argument for leave. So obviously rather than blindly adopt it, I, in terms of preparing the substantive skeleton, worked my way through the whole of his skeleton to see whether I agreed with it or not, including, of course, going through all the authorities. So I think my friend would have a point if it was simply I changed one paragraph. But I did do a little more than that in preparation for the substantive hearing, preparing the skeleton. My Lord, other than that I do not add anything further.

43. SIR RICHARD TUCKER: That is the only point you take Miss Davies, is it?

44. MISS DAVIES: It is, my Lord, yes. ( Pause )

45. SIR RICHARD TUCKER: I think it is a bit much to charge £1,100 for two skeletons. How you divide it up between you and Mr Bedford is not a matter for me to determine, but I am going to deduct £300 from the costs. So that whether you attribute £300 to the skeleton argument on the substantive hearing or not, that is the way I am approaching it.

46. MR ALBUTT: My Lord, I am sure Mr Bedford and I will come to terms.

47. SIR RICHARD TUCKER: I hope so. Does that conclude your submissions as far as the costs are concerned?

48. MISS DAVIES: It does, my Lord.

49. SIR RICHARD TUCKER: So I am entitled to say, am I, total fees which the defendants are liable to pay at £10,560.53. That is the total costs, in other words.

50. MR ALBUTT: Yes.

51. SIR RICHARD TUCKER: Thank you. Any further application?

52. MISS DAVIES: My Lord, yes. Obviously the Secretary of State will wish to consider your Lordship's judgment carefully, but at this stage it is necessary for me to ask your Lordship for permission to appeal. As your Lordship commented when we heard this matter last week, it does raise important points of principle about the meaning of curtilage of a listed building. Your Lordship has very helpfully reviewed the authorities and set out your Lordship's view, and then applied that to the facts of this case. I say that that does raise important principles that the Secretary of State is concerned with assuring that this is a matter of fact and degree for the inspector, and the extent to which a judge is entitled to interfere with the inspector's finding on that question of fact and degree, and also the guidance that is given in terms of your Lordship's judgment as to how the inspector may reach that decision. So I do say it does raise an important point that is worthy for consideration of the Court of Appeal. It is arguable in this case, I say, that the inspector's decision was open to him as a matter of fact and degree. It would be my respectful submission that your Lordship has erred in saying that that was not open to him as a matter of fact and degree. In those circumstances, I would invite your Lordship to grant permission to appeal.

53. SIR RICHARD TUCKER: What do you say, Mr Albutt?

54. MR ALBUTT: My Lord, I would say this. The law is well settled, as your Lordship has recited it. What this case turns on is on the interpretation of paragraph 18 of the decision letter in the inspector's approach. It is not one which is raising, I would say, a point of public importance because the law is well settled.

55. SIR RICHARD TUCKER: Anything else you want to say, Miss Davies?

56. MISS DAVIES: Simply this, my Lord. So far as the law being well settled, although there are the three authorities to which your Lordship has referred, in my submission your Lordship has sought to add to those authorities. Your Lordship has not simply confined himself to setting them out, but has gone on to look in the definitions in various dictionaries and expressing views on that. So it is not simply a case of your Lordship applying the three authorities to which he has referred, but indeed adding something more on to that.

57. So for that reason I say it is not simply well settled, but your Lordship has sought to take the matter forward.

58. SIR RICHARD TUCKER: Thank you.

59. In my view this is a matter of fact and degree and no great matter of principle emerges. My decision relates to the facts and degree of the development in this case and no other. In my view an appeal is unlikely to succeed and I refuse leave.

60. Thank you very much for your careful submissions the other day, which were most helpful.

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