Incidental dwelling use decision of former smallholding flawed

A planning inspector made an error in refusing to grant a LDC in respect of land adjoining a dwelling house which the owner had turned into one extensive garden regularly used for normal residential activities by him and his family. Mrs Justice Lang also held that the inspector had disregarded gardening activities when assessing incidental residential use, and the owner's use of the site as a place to stroll around, sit out and walk his dogs.

The claimant purchased a property comprising a dwelling house and land in 1996 and prior to this date there had been a smallholding on the site for many years, but it had ceased to be used for that purpose in the late 1970s. Over the years since he purchased the site, the claimant removed the remnants of the smallholding and cultivated the land. In March 2013, he applied to the local authority for a LDC seeking confirmation that the land had been used as incidental to the enjoyment of a dwelling house. He had argued that the entirety of the land had become one extensive garden, which was in regular use for normal residential activities by him and his family, including their dogs, and their visitors.

The inspector (DCS No. 200-004-541) allowed the appeal in respect of the southern part of the site but not the northern part. In January 2014, the claimant applied again for a LDC, and that application was refused by a second inspector who concluded that the northern part of the site was different in character and appearance to the southern, and the family's activities on the northern part were insufficient to amount to incidental residential use. Consequently he held that it had a "nil use" throughout the claimant's ownership and continued to do so.

The claimant submitted that the second inspector had erred in excluding certain uses from his consideration of what could amount to a residential use of land or uses incidental to residential use, had failed to take account of relevant considerations, and his decision was irrational.

The High Court agreed that the inspector had made a series of errors. The first error in the inspector's approach was his failure to take into account the local authority's concession that there had been an incidental residential use from April 2013, which supported the claimant's claim from 2013 onwards. The second error involved discounting the claimant's gardening activities when assessing if an incidental residential use had been established. The evidence demonstrated that the claimant had transformed a semi-derelict smallholding and field into a fine garden. On the facts, his gardening activities ought to have been fully taken into account when assessing the incidental residential use of the northern part of the site. If the inspector had done so, it could have affected his reasoning and conclusions.

Mrs Justice Lang also held that there had been a failure to properly assesses the claimant's use of the site as a place to stroll around, sit out and walk his dogs. An owner's recreational use and enjoyment of a plot of cultivated land in which his dwelling house was situated could amount to a use of the land which was incidental to the residential use. It depended on the facts in the particular case. In the instant case, the claimant was simply enjoying his enlarged garden. It was not in dispute that the land was kept available for use by the claimant and his family at all times: it had no other use. The inspector's further conclusion that the time thus spent on the land was "minimal" was at odds with his acceptance that it took place very regularly, on more days than not, the judge opined. If the inspector accepted that the land was being used for incidental residential activities for some of the time, the mere fact that the claimant was not in his garden at a particular hour did not mean that the land ceased to be in use for incidental residential use which continued when there was no-one physically in the dwelling.

Finally, the inspector erred in refusing to consider the potential relevance of the curtilage in respect of the house and made little allowance for the fact that the claimant was acting as a litigant in person throughout, and was not professionally qualified. The decision was quashed.

O'Flynn v Secretary of State for Communities and Local Government

Date: 17 November 2016

Ref: CO/1041/2016

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