Stuart McQueen v Mid Suffolk District Council

This is the Claimant’s renewed application for permission to commence judicial review proceedings against the decision of Mid Suffolk District Council (the Defendant or the Council hereafter) to grant a certificate of proposed lawful use or development (the LDC or the Certificate) under section 192 of the Town and Country Planning Act 1990 to the Interested Party on 17 December 2024.

The LDC certified that the erection of an outbuilding (of 162square metres), in accordance with the plans and details submitted (Footnote: ¹), would be lawful as being permitted development at the property at Cadogan House, Long Thurlow, Badwell Ash IP31 3JA (Cadogan House). The LDC application was based on a claim that the land on which the outbuilding would be located is within the curtilage of a dwellinghouse. As such it benefitted from permitted development rights under Class E of Part 1 of Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 as amended.

The Claimant owns the residential property adjoining Cadogan House. The Interested Party owns the property at Cadogan House. The Defendant is the local planning authority. It has been previously referred to as “Babergh and Mid Suffolk District Council” in all pleadings. However, the Defendant confirms that Babergh District Council is a separate entity and the correct title of the Defendant is Mid Suffolk District Council. I note that the LDC is granted in the name of Mid Suffolk District Council and I have therefore amended the Defendant’s name accordingly.

The claim was commenced on 28 January 2025 and set out 12 grounds of challenge. Following consideration on the papers on 4 April 2025, Mr Tim Smith, sitting as a Deputy High Court Judge, granted permission to proceed on grounds 1, 2, 3, 6, 7 and 12. He refused permission on grounds 4, 5, 8, 9, 10 and 11.

The Claimant seeks renewal on all of the refused grounds. By application the Claimant previously sought a direction for a rolled-up hearing of the renewed application on the further grounds. By Order dated 3 June 2025 Mr Justice Mould refused that application for a rolled-up hearing and gave further directions.

There is an outstanding application dated 27 May 2025 by which the Claimant sought permission to rely on his second witness statement. That application was made in accordance with the case management directions of Mr Tim Smith and is not opposed. There is also a third witness statement of the Claimant, Mr Stuart McQueen dated 29 August 2025 which has been filed with the Court. That witness statement merely corrects an incorrect date referred to in his first witness statement. It is uncontroversial. I have admitted both witness statements into evidence.

Cadogan House has an extensive planning history which is set out fully in the skeleton arguments and is known to the parties. An application for planning permission for a new dwelling at Cadogan House was refused in 2018 and dismissed on appeal by decision dated 26 November 2019. Thereafter, a subsequent application for planning permission for a dwelling and double garage was refused on 12 March 2021.

Planning permission was then granted for the erection of a domestic outbuilding (of 81 square metres) in January 2022. That planning permission was quashed by the High Court and a subsequent positive redetermination by the Council resulted in planning permission again being granted on 16 September 2022. Following a second challenge the permission was quashed for a second time by the High Court on 20 December 2022, for failure to have regard to the Inspector’s conclusions in the 2019 appeal decision.

The third and final redetermination (Footnote: ²) was refused on 20 November 2023. That refusal was based on the proposal being located outside the settlement boundary and subject to countryside policies which strictly control development, as well as the development being of an unacceptable scale and size in that location.

The Claimant then applied under a different procedure for the LDC. On the 17 December 2024 the LDC, now subject to challenge in this claim, was granted for a domestic outbuilding of some 162 square metres.

The Officer’s Report (OR) sets out the nature of the application; the planning history of the site and quotes from the previous officer reports on each of the applications/redetermined applications. The Inspector’s appeal decision is referenced and quoted from. The OR then moves on to an assessment of the site and the surroundings, and the nature of the proposal, before setting out the provisions of schedule 2 Part 1 Class E concerning the relevant permitted development rights. Immediately thereafter the report reads as follows:

“The proposal is for an outbuilding for domestic garaging and storage. The building is considered to be required for a purpose incidental to the enjoyment of the dwellinghouse known as Cadogan House.

The question of curtilage has formed a significant consideration in this case. Establishing whether or not the proposed outbuilding is to be constructed on land within the curtilage of Cadogan House will determine whether Class E applies.

The meaning of curtilage and its assessment was considered by the Court of Appeal in R (Hampshire County Council) v Secretary of State for Environment, Food and Rural Affairs [2022] QB 103. The Court held that the correct legal test for determining whether land was within the curtilage of a building was whether the land in question was so intimately connected with the building as to lead to the conclusion that the land formed part and parcel of the building; that if land was within the curtilage of a building the relationship of the land to the building would be sufficiently proximate that a reference to the building could be treated, without artifice, as including the land as well. The physical extent of the curtilage of a building in any given case would be a question of fact and degree for the decision-maker, taking into account all relevant considerations, which included the statutory consequences of a finding that the land fell within the curtilage of the building, the respective sizes of the land and the building, and whether the land was ancillary to the building. Potentially relevant to the question whether land is within the curtilage of a building are (a) physical layout, (b) ownership, past and present, and (c) the use or function of the land and building, past and present.

The curtilage of a building can change over time and must be ascertained at the time it falls for consideration (Sumption v Greenwich LBC [2008] 1 P&CR 20, paragraphs 24-27).”

The proposal then goes on to describe the layout of the house; its plot and boundaries. It includes the following:

“Cadogan House is a detached, two-storey dwellinghouse standing in a rectangular plot of land lying north-south. The boundaries of the plot are clearly defined by hedges, fencing and (along the northern boundary) a ditch. Between the house and Long Thurlow Road to the south there is a front garden, driveway and parking/turning area. A driveway continues along the western boundary of the plot, ending at a hard surfaced area by the northern boundary. To the rear of the dwellinghouse is a patio and grassed area, with a hedge (and, for a time, a gate) dividing the grassed area into two. The hedge lies roughly along the same line as the settlement boundary shown in the Mid Suffolk Local Plan (1998) Proposals Map. The northern part of the grassed area is about 1/3 of the plot. It is in this area that the proposed outbuilding would be constructed.”

The OR then goes on to consider the use and function of Cadogan House and its land by firstly quoting from the Planning Statement in italics. The following Planning Statement paragraph was quoted:

“The previous owners sold the site as one unit in 2021 and the land was referred to as “garden” in the sale documents. This indicates the land was also used as garden in functional association with the host dwelling in the past. In addition, there is no evidence of any non-domestic or commercial operations having been carried out on the plot in recent history.”

The officer’s own assessment continues:

“A detailed review of previous applications’ treatment of the current site is set out in the planning history section above. These previous applications include that of dwellings as well as an outbuilding. As was set out within the report on application DC/21/06564, the northern grassed area is considered to fall within the amenity land enjoyed by Cadogan House. The relevant section of that report states:

Whilst concern has been raised with regards to the use of this land, following a site visit it is considered, on balance and as a matter of planning judgement, that the proposal’s location would fall within amenity land associated with Cadogan House and could be conditioned appropriately to manage the use for that purpose.

In light of the above, noting the planning history, layout, ownership and use of the site, past and present, it is considered, as a matter of fact and degree, that the northern grassed area is part and parcel of Cadogan House and therefore the proposed outbuilding would lie within the curtilage of Cadogan House. As such it benefits from the rights associated with that property under Class E of the GPDO as amended.”

The OR therefore concludes that the proposed development was for a building in the curtilage of a dwellinghouse and benefitted from permitted development rights under Class E, paragraph E.1.

Ground 4: The second and final redetermination of the planning application for a smaller outbuilding was refused because the development was outside the settlement boundary of Badwell Ash. Mr Lewis, on behalf of the Claimant, contends that it stands to reason that the settlement boundary would have been drawn to follow the extent of the residential curtilages of those properties on the edge of the settlement. It follows, Mr Lewis contends, that the land in question, which is outside the defined settlement boundary, does not form part of any residential curtilage.

On behalf of the Defendant, Mr Green points out that the settlement boundary ceased to exist in 2008 when the 2008 Core Strategy was adopted. Further it is submitted that the officer had express regard to the historic settlement boundary in his report, with specific reference to the hedge dividing the grassed area in two along the same line as the settlement boundary.

The 2019 Inspector’s appeal decision dealt with the proposal for a new dwelling in a similar location. Paragraph 4 of that decision records that the appeal site lay behind Cadogan House which itself fronted onto Long Thurlow Road. Paragraph 5 goes on to record that there was no disagreement that the proposal was outside any of the settlements identified in relevant development plan policies as being preferred locations for development. It goes on to say that “Outside of the identified settlements the land is classified as countryside. The appeal site therefore falls within designated countryside”.

The conclusions section of the appeal decision records:

“35.

Given the location of the site and the lack of access to safe walking and cycling routes or public transport to provide for day-to-day needs it is likely that future occupants of the development would be heavily reliant on private motor vehicles to access local shops and services. This, together with the harm that I have found the development would cause to the character and appearance of the area, are significant factors weighing against the scheme.”

A new application for planning permission for a dwelling and double garage came before the Defendant on 12 March 2021. In the officer’s report the principle of development was considered and the Officer concluded that the majority of the site was outside the settlement boundary and considered to be countryside. The conclusions in that report, which resulted in a recommendation for the refusal of planning permission, were as follows:

“9.1

The proposed dwelling is located in the countryside, outside of any settlement boundary as designated in the current development plan. The siting would also not be in keeping with the prevailing pattern of development and character of the area. The proposed dwelling is, therefore, contrary to the provisions of the development plan and beyond other sustainable settlements with suitable services and facilities to meet day to day needs. Furthermore, the proposal is in conflict with the sustainable development principles of the NPPF taken as a whole. Lastly, as a matter of limited weight, the majority of the site would remain beyond the proposed settlement boundary of the emerging Joint Local Plan and not considered to support housing development in this unsustainable location.”

The Defendant’s decision to grant planning permission for a smaller outbuilding on 27 January 2022 is silent as to the question of the settlement boundary. It merely records that: Cadogan House is located on the northern side of Long Thurlow Road in the settlement of Long Thurlow; that there are dwellings to the west and east; and open countryside to the rear. That grant of planning permission was quashed for failure to have regard to the planning history of the site, including the 2019 appeal decision.

The first redetermination again resulted in a planning permission but that was quashed for a second time for failure to have regard to the appeal Inspector’s conclusions on the settlement and countryside location. The second redetermination of the planning application for a smaller outbuilding resulted in the refusal of 20 November 2023. The single reason for refusal cited was set out as follows:

“The proposal is for an outbuilding sited outside the settlement boundary of Badwell Ash and by reason of its size, scale and location would have an unacceptable impact upon the character and appearance of the countryside.”

Analysis

Ground 4: Any reference to a settlement boundary in the various reports is a reference to a historic settlement boundary contained within the Mid Suffolk Local Plan adopted in 1998. The Inspector’s appeal decision applied the policies in the Mid Suffolk District Core Strategy from 2008 and he looked at the settlements identified by Policy CS1 within that document. The appeal decision does not make reference to a settlement boundary but merely confirms that the appeal site lies outside any of the identified settlements and, as such, it fell to be considered as open countryside.

The subsequent reports have all referred to the settlement boundaries in the adopted and emerging local plans and have recorded that the development fell outside those defined settlements. The 1998 settlement boundary has therefore been superseded by the later local plan documents.

Within the OR the officer correctly records that the hedge dividing the grassed area lies roughly along the same line as the historic 1998 settlement boundary. That is factually correct. At the date of the LDC application I am informed that there was no settlement boundary around Long Thurlow. Indeed, I note that the refusal of 20 November 2023 on the second redetermination of the smaller outbuilding referred to the outbuilding being outside the Long Thurlow settlement boundary. The whole of Badwell Ash, including Cadogan House, is within the countryside.

In determining the LDC application the key question was whether a parcel of land is so intimately connected with a building such that it forms part and parcel of that building. That is a question of fact and degree for the decision maker having regard to all relevant considerations, including any historic settlement boundaries. The Claimant seeks to argue that the settlement boundary was intended to delineate the extent of residential curtilages in this part of the settlement. However, just as curtilages can change over time, so can settlement boundaries and the relevance of the historic settlement boundary to the question of a residential curtilage is a matter for the decision maker.

Mr Lewis refers me to the applicant’s submissions to the Defendant in support of the planning application which were quoted in the officer’s report on the final redetermination on the smaller outbuilding permission. Those submissions were in relation to the land comprising part of the residential curtilage and there being a possible fallback position in relation to the exercise of permitted development rights. Mr Lewis contends that those submissions were rejected when planning permission was refused.

However, whilst the officer’s assessment paragraph entitled Principle of Development confirms that the application site was located outside the settlement boundary and the proposal fell to be considered as being within open countryside making the development unacceptable in principle, there is no consideration of permitted development rights representing a fallback position which amounted to a material consideration pointing towards approval. In effect, the report is silent as to a possible fallback position and the question of permitted development rights is not dealt with explicitly.

In the impugned OR the officer clearly had the historic boundary in mind. It formed part of his assessment when looking at the residential curtilage. It is not arguable that the officer did not have proper regard to the settlement boundary in his assessment. The officer was aware of the factual position and took it into account. There is no current settlement boundary within the vicinity of the application site and it is not axiomatic that the historic boundary was drawn around residential curtilages. Permission is refused in relation to this ground.

Ground 5: alleges that the OR mistakenly concluded that the site location plan, which accompanied the planning application DC/18/02804, and which showed a red line encompassing the application site, meant that the red line delineated the residential curtilage of the existing dwelling. This was in relation to the 2018 planning application for a new dwelling, which was the refused application the subject of the Inspector’s decision. In the impugned OR, the details of application DC/18/05274 are recorded as follows:

“- The site location plan for the application includes a red line encompassing the entirety of the land in question, delineating its residential usage.

- Planning statement at paragraph 5 states, “the application site is part of the domestic curtilage of Cadogan House” (my emphasis)

The quote from this report within the Statement of Facts and Grounds erroneously records that the OR refers to the red line area delineating the residential curtilage. It does not, instead it refers to residential usage.

Mr Lewis contends that those references in that context are intended to support the conclusion that the extent of the domestic curtilage is coterminous with the red line boundary. He submits that this is contrary to the position taken by the same planning officer in the final redetermination of planning application DC/21/06564 when he did not accept the extent of the residential curtilage.

The site has had a convoluted planning history, that history is recorded in the OR on the LDC. The reference to the 2018 application records that the land within the red line plan submitted with that application delineated its residential use and goes on to record that the planning statement and the application form seek to claim that the application site was part of the domestic curtilage of Cadogan House. Read fairly, that is no more than a recital of previous submissions and their outcomes. The OR goes on to set out the relevant question: that being whether the proposed outbuilding would be sited on land which forms part of the residential curtilage and conduct its own assessment as to curtilage. It is not arguable that this quote was intended to support the eventual conclusion on curtilage or that the extent of the red line in previous applications was treated as being useful evidence for determining the curtilage. Permission is therefore refused.

Ground 8: is an allegation that the decision-maker took an immaterial consideration into account in arriving at his recommendation. The Interested Party’s agent submitted a Planning Statement in support of the LDC application. The OR uses italics to indicate that it is quoting from the Planning Statement as follows:

“The land is used as an integral part of the property’s garden. It is primarily laid to lawn, as for the rest of the garden. It is mowed regularly by the site owner (weekly or bi-monthly depending on the season) and is also used for the following, typical domestic curtilage purposes:

• Storage of domestic items and paraphernalia;

• Planting of a small no. of fruit trees;

• Parking of domestic vehicles, including the large motorhome; • Siting of two large, raised vegetable beds which are regularly tended by the site owner; and

• Exercise, toileting and play area for domestic pets.

The previous owners sold the site as one unit in 2021 and the land was referred to as “garden” in the sale documents. This indicates the land was also used as garden in functional association with the host dwelling in the past. In addition, there is no evidence of any non-domestic or commercial operations having been carried out on the plot in recent history.”

The OR goes on make the observation that:

“Whilst no sale particulars have been provided, the above information formed part of the submission by the applicant under this application.

The aerial photographs are broadly consistent with what is said above.

A detailed review of previous applications’ treatment of the current site is set out in the planning history section above. These previous applications include that of dwellings as well as an outbuilding. As was set out within the report on application DC/21/06564, the northern grassed area is considered to fall within the amenity land enjoyed by Cadogan House. The relevant section of that report states:

Whilst concern has been raised with regards to the use of this land, following a site visit it is considered, on balance and as a matter of planning judgement, that the proposal’s location would fall within amenity land associated with Cadogan House and could be conditioned appropriately to manage the use for that purpose.”

The reference to the sales particulars was merely a repetition of the applicant’s case. The officer then went on to note that sales particulars had not been provided, and he assessed the claims in light of other evidence including previous aerial photographs and the use as described in previous applications. The sales particulars were included as part of the application and the Officer rightly had to assess all of the evidence in the round. It is not arguable that the officer fell into error by placing undue reliance on the sales particulars. The assessment of all the evidence put before the planning officer and the weight which was attributable to it was a matter for the planning judgment of the officer. Permission is therefore refused.

Ground 9: alleges that the decision maker failed to have regard to the statutory consequences of his recommendation to grant the LDC. Mr Lewis referred me to the Court of Appeal decision in R (Hampshire CC) v. Secretary of State [2022] QB 103 which confirmed that the physical extent of the curtilage of a building in any given case would be a question of fact and degree for the decision-maker, taking into account all relevant considerations, including the statutory consequences of a finding that the land fell within the curtilage of the building, the respective sizes of the land and the building, and whether the land was ancillary to the building, at [26] and [121]. 

 In the Hampshire case the Court made the point that:

“Ancillary means something which is subservient to, or subordinate to, or which provides essential support to the functioning of, something else. It was common ground that, although the land does not have to be ancillary to the building in order to fall within its curtilage, the answer to the question whether it is ancillary to the building is relevant and in some cases, may be highly relevant. This is a case in point. As Holgate J said, if that factor is taken into account the decision-maker must understand the concept correctly, and the notion of something being ancillary is meaningless unless it can be related to something else with a primary role.”

In the OR, the officer notes that the northern part of the grassed area is about one third of the plot. The Claimant contends that the statutory consequence of the decision is to increase the curtilage from around 3875 square metres by around 1800 square metres.

The OR correctly records the law in terms of permitted development rights and the consequences of an assessment that the land constituted part of the curtilage of the dwelling. However, the Claimant has already been granted permission to challenge the decision on the basis that the decision contained a material error of fact as to distance between Cadogan House and the proposed outbuilding. Given the admitted error of fact, I am minded to grant permission on this ground. It is arguable that the Officer erred in his consideration of the ancillary relationship between the house and its surrounding land. Permission is granted in relation to ground 9.

Ground 10: is a contention that the same planning officer has dealt with previous decisions and applications which have pointed in different ways but has failed to explain or reconcile his recommendation with these previous reports. I am satisfied that this ground is arguable since it seems to me that the planning officer has failed to distinguish between comments made in reports which have been subsequently quashed and observations by the appeal Inspector and in his own final redetermination report, and has not explained his conclusions in light of previous comments. Permission is granted on this ground.

Ground 11: is an allegation that the OR incorrectly approached the question of curtilage by asking (a) whether the land and building formed an integral part of the same unit, (b) whether there was ‘functional equivalence’ between them, and (c) whether the building formed ‘part and parcel’ of some unit which included the land.

Firstly, these are more specific complaints about the application of the correct legal test, which is already the subject of complaint in grounds 1 and 3. To the extent that the officer has fallen into error and the way in which he may have applied an incorrect test by asking an incorrect question are matters which will be considered within ground 1. Specific allegations that the officer asked the above questions are not arguable given that nowhere in the OR does the officer set out those questions.

Mr Lewis seeks to argue that the delegated report asks the question “in so many words” since it adopts the Interested Party’s submissions as set out in the Planning Statement. I do not accept that by merely recording those submissions the officer has adopted them and used them to ask himself the questions suggested in ground 11. Ground 11 is not arguable and permission is refused for this ground.

Conclusion: I have granted permission on grounds 9 and 10, in addition to the permission already granted. I note that case management directions have already been issued for the substantive hearing. I would ask that Counsel draft an appropriate Order to reflect the terms of this judgment and give some thought as to whether the time estimate for the final hearing needs to be revised.