Court of Appeal takes a pragmatic approach to measuring height in permitted development case (McGaw v Welsh Ministers)

Tue, 13 Jul 2021

This analysis was first published on Lexis®PSL on 09/07/2021 and can be found here

Planning analysis: The Court of Appeal considered how to measure the height of a proposed building from the ‘surface of the ground immediately adjacent’ to it, as required by Article 1(3) of the Town and Country Planning (General Permitted Development) Order 1995 (the 1995 GPDO). It held that height measurements did not necessarily need to be taken on land within the curtilage of an applicant’s land. In circumstances where the proposed building would be flush against a brick wall, it would be appropriate to measure from the neighbour’s land on the other side of the wall. Written by Howard Leithead, barrister at No5.

McGaw v Welsh Ministers [2021] EWCA Civ 976

What are the practical implications of this case?

This judgment will provide assistance to practitioners who are trying to decide where measurements should be taken from in the context of general permitted development orders.

However, caution should be exercised for two reasons. First, it will always be necessary to consider the particular factual circumstances of any application.

Secondly, the 1995 GPDO, SI 1995/418 which applies in Wales, provides differently to the Town and Country Planning (General Permitted Development) Order 2015 (the 2015 GPDO), SI 2015/596 which applies in England. In his judgment, Sir Timothy Lloyd noted that there was wording in, Article 1(3) of the 1995 GPDO, SI 1995/418 which might have assisted an applicant in England (where the wording of Article 2(3) of the 2015 GPDO, SI 2015/596 is identical), but that it was negated in Wales by the wording of Class E to the 1995 GPDO, SI 1995/418, Sch 2 Pt 1 (Class E).

What was the background?

The claimant owned a property in Sketty, Swansea (the property) on land that rose from east to west. The property consisted of a house with a garden at the back, which was the western side. To the south was a neighbouring property and to the west was a model railway. The claimant had built a brick wall that ran along the southern boundary of the garden and part of the western boundary (the wall) and wished to build a garden room in the south western corner of the garden abutting the wall (the proposed building).

As he considered that the proposed building would benefit from permitted development rights under Class E, the claimant applied to Swansea Council (the Council) for a certificate of proposed use or development under section 192 of the Town and Country Planning Act 1990. Class E permits ‘the provision within the curtilage of the dwellinghouse of (a) any building or enclosure…required for a purpose incidental to the enjoyment of the dwellinghouse as such’, subject to certain qualifying provisions.

After a series of unsuccessful applications, appeals and plan modifications, the claimant appealed a refusal of an Inspector appointed by the Welsh Ministers to the High Court, which upheld his appeal. The Welsh Ministers then appealed the judgment of the High Court to the Court of Appeal.

What did the court decide?

The Court of Appeal was required to interpret the relevant provisions of the 1995 GPDO, SI 1995/418 that restrict the height of a development permitted under Class E.

The relevant provisions within Class E are at paragraph E.1(e) and (f), which provide:

‘Development is not permitted by Class E if—

(e) the height of any part of the building … measured from the surface of the ground immediately adjacent to that part, would exceed (i) 4 metres in the case of a building having a roof with more than one pitch; (ii) 3 metres in another case.

(f) any part of the building…would be (i) within 2 metres of the boundary of the curtilage of the dwellinghouse; and (ii) exceed 2.5 metres in height above the surface of the ground immediately adjacent to it.’

Article 1(3) of the 1995 GPDO further provides:

‘Unless the context otherwise requires, any reference in this Order to the height of a building…shall be construed as a reference to its height when measured from ground level; and for the purposes of this paragraph “ground level” means the level of the surface of the ground immediately adjacent to the building…in question…’

The issue for the court was how to measure the ground ‘immediately adjacent’ to the southern side of the proposed building, as it would be flush against the wall at the southern boundary of the garden.

In his judgment, with which the rest of the court agreed, Sir Timothy Lloyd said that the 1995 GPDO. SI 1995/418 should be interpreted in the light of its statutory purpose. This was, he said (at paragraph 17 following Pochin & Co Ltd v Plymouth Corporation [1973] 1 WLR 1346):

‘relieving developers and planning authorities of an unnecessary regulatory burden in cases of a kind where planning permission ought to be granted, and reading both the words which set out what is permitted and those that limit the scope of the permission in a broad and common sense way according to the ordinary meaning of the language used.’

Sir Timothy Lloyd said that there was no reason why height measurements had to be taken within the curtilage of an applicant’s dwelling. The judge further said that, as the proposed building would be flush against the wall, the most relevant ground level on the southern side would be that of the neighbour’s land just the other side of the wall. He noted that the concern the height restrictions address is visual amenity and said that it was the ground on the neighbouring land that provided the context for assessing how the proposed building would affect this.

In his judgment, Lord Justice Lewison noted the conundrum posed by the requirement to measure the ‘surface of the ground immediately adjacent’: on the one hand, the surface of the neighbour’s land was not ‘immediately adjacent’ to the proposed building, but on the other, what was ‘immediately adjacent’ was not the “surface of the ground’. He said that he did not think that it was possible to resolve the tension between the two by purely linguistic means and that a pragmatic choice had to be made. He further said that it might be possible for those responsible for drafting the 1995 Order, SI 1995/418 to find a clearer form of words.

Case details

  • Court: Court of Appeal, Civil Division
  • Judges: Lord Justice Lewison, Lord Justice Asplin and Sir Timothy Lloyd
  • Date of judgment: 30 June 2021

 

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