Council misinterpreted established planning law

In allowing an appeal seeking confirmation that the erection of a fence around a dwelling in south east London would be lawful an inspector decided that the council had made a fundamental error in its interpretation of legal principles.

The council had issued a LDC confirming that the property, which lay within the grounds of a cottage, could be occupied as a separate and independent residential unit. The appellant therefore sought further confirmation that the erection of a fence up to two metres high to define the curtilage of the property would not require permission. The council stated that this was not permitted under Class A of Part 2 of Schedule 2 of the GPDO 1995 because it would result in the creation of a new planning unit which would trigger a material change of use of the land and therefore take the scheme outside the scope of the GPDO.

The inspector decided that the word ‘curtilage’ referred to an area of land around a building and not to a use of land. The council had confirmed that the property could lawfully be used as a dwelling and consequently a new planning unit was created at that time. It would also result in reducing the curtilage associated with the original cottage but this did not mean that the curtilage of one property could only be incorporated into the curtilage of another if planning permission was obtained first. In effect all that was involved was exchanging part of the garden from one property to another by defining their physical extent by a fence. Under these circumstances no material change of use would occur and the certificate was issued.

The law relating to planning units and curtilages was not always easy to follow, the inspector acknowledged. Nonetheless, in asserting that a material change of use would occur the council had failed to appreciate that this had already occurred when issuing the LDC for the property as a separate dwelling. A local planning authority should be expected to have a knowledge and understanding of relevant legal principles and in the case before him they had clearly misunderstood them resulting in an unnecessary appeal. A full award of costs was made in favour of the appellant.

Inspector Rod Evans; Written representations

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