Barnett v Secretary of State for Communities and Local Government

Factual and Procedural Background

These linked appeals concern the interpretation of planning permissions related to land near a dwelling house known as Miscombe Manor, located in The City, Hampshire. The central issue is whether a planning permission dated 16 December 1998 granted permission for ancillary residential use of additional land, effectively extending the curtilage of the dwelling and permitting the construction of a tennis court and swimming pool. The original dwelling was granted permission in 1995, with a defined curtilage shown on site plans. The 1998 application sought permission for extensions and alterations to the existing dwelling, including dormer windows, offices, garages, and a games room, without explicitly seeking change of use or extension of the curtilage.

Between 2000 and 2005, an area adjacent to the 1995 permission site was brought into garden use ancillary to the dwelling, with a tennis court and swimming pool constructed. Retrospective planning permission was sought in 2005 for these uses but refused. Enforcement notices were issued alleging breaches of planning control for the change of use of the additional land and the construction of the tennis court and swimming pool. The appellant appealed these notices, and an inspector’s decision rejecting the appellant's argument that the 1998 permission extended the curtilage was upheld by Sullivan J. These appeals challenge that decision.

Legal Issues Presented

1. Whether the 16 December 1998 planning permission granted permission for the use of additional land as ancillary to the dwelling house, effectively extending the residential curtilage.
2. Whether the 1998 permission incorporated the application drawings and site plans so as to define the extent of the permitted curtilage.
3. The proper approach to the interpretation of planning permissions, particularly distinguishing between full detailed permissions for new dwellings and extensions to existing dwellings.

Arguments of the Parties

Appellant's Arguments

• It is mandatory to submit a site plan with any planning application, and the planning permission granted relates to the land shown within the red line on that plan.
• The site plan accompanying the 1998 application showed a larger area than the previously established curtilage, implying that the permission extended to that additional land.
• All land shown within the site plan’s red line benefits from the planning permission unless expressly excluded by condition.
• The distinction drawn by the judge between permissions for new dwellings and extensions to existing dwellings is unsound; the 1998 permission implicitly includes ancillary residential use of the land within the red line.
• Condition 5 of the 1998 permission, requiring parking spaces within the curtilage of the site, supports the argument that the permission contemplates a curtilage corresponding to the red line on the site plan.
• Alternatively, if the court upholds the judge’s principle, the matter should be remitted to the inspector to determine as a question of fact whether the 1998 application and plan show an extension to the residential curtilage.

Respondent's Arguments

• The 1998 permission was for extensions and alterations to an existing dwelling with an established curtilage, not for extending the curtilage or changing the use of additional land.
• The application form did not indicate any change of use or increase in site area; relevant boxes were left blank.
• The site plan accompanying the 1998 application did not show features or works within the additional area beyond the established curtilage.
• Planning permissions run with the land and must be interpreted by reference to the permission documents themselves, not presumed intentions of architects or applicants.
• The inclusion of condition 5 does not imply an extension of the curtilage, as the existing curtilage was sufficient to satisfy the condition.
• There is no need to remit the case for further factual determination as the interpretation is a matter of law and the appellant had ample opportunity to present evidence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the nature of the 1998 planning permission as a full detailed permission for extensions and alterations to an existing dwelling with an established curtilage defined by the 1995 permission. It rejected the inspector’s initial view that the application and drawings could not be considered in construing the permission, clarifying that full detailed permissions inherently include the application plans and drawings as part of the permission.

The court emphasised the distinction between permissions for new detached dwellings, which necessarily imply a curtilage defined by the site plan, and permissions for extensions to existing dwellings, where the curtilage is already established and no implicit extension is presumed without explicit indication.

Reviewing the 1998 application form and plans, the court found no indication of any intended change of use or extension of the curtilage. Relevant sections of the application were left blank, and the site plan did not show proposed works or features on the additional land beyond the existing curtilage. The permission itself referred only to extensions and alterations to the dwelling, without mention of ancillary use of additional land.

Condition 5, requiring parking within the curtilage, was interpreted as consistent with the existing curtilage and did not imply any extension. The court also rejected the appellant’s suggestion that the case should be remitted for factual determination, concluding that the interpretation was a matter of law adequately addressed on the documents and evidence before the inspector and the court.

Holding and Implications

The court DISMISSED the appeals, upholding the decision of Sullivan J and the inspector that the 1998 planning permission did not grant permission for an extension of the residential curtilage of Miscombe Manor or for ancillary residential use of the additional land where the tennis court and swimming pool were constructed.

The direct effect of this decision is that the appellant’s use of the additional land for ancillary residential purposes remains unauthorized, supporting the enforcement notices. The court did not establish any new legal precedent but reaffirmed the established principles distinguishing the interpretation of full permissions for new dwellings and extensions to existing dwellings, emphasizing the importance of the application form, plans, and express permissions in defining the scope of permitted development.