Home > News > Seeing the elephant: Inspector’s curtilage decision quashed

Hiley v Secretary of State [2022] EWHC 1289 (Admin).

“There are some words or expressions which are like an elephant; its essence is difficult to put into words, but you know it when you see it.  ‘Curtilage’ is a word of that nature.” (per Andrews LJ in Blackbushe Airport [2022] QB 103, a Commons Act 2006 case, at [50])

In the Hiley case, the Inspector’s task was to determine whether proposed development by way of the erection in a field of a workshop and storage building would be within the “curtilage” of the adjacent business park buildings.  If so, it would be permitted development.

Citing, amongst other cases, Methuen-Campbell v Walters and McAlpine v Secretary of State, the Inspector concluded that the proposed development would not have been built on land comprising the curtilage of the business park buildings and as such he dismissed the appeal.

Advised and represented by Stephen Whale of Landmark Chambers, Mr Hiley challenged the Inspector’s decision.  On behalf of the Inspector, the Secretary of State’s position was robust.  He submitted that the claim was unarguable, and that it was “an example of the excessive legalism and hypercritical scrutiny of planning decisions which has been repeatedly deprecated by the courts.”  On procedural grounds, the Secretary of State applied to strike out the claim.  Although that application was successfully resisted, permission to bring the claim was refused.  Undaunted, Messrs Hiley and Whale fought on.  They were rewarded with a grant of permission at an oral hearing.  The Secretary of State stuck to his guns, submitting that the claim was “unmeritorious”.

Following a substantive hearing, the claim has succeeded and the Inspector’s decision has been quashed.  Mr Justice Julian Knowles accepted the submission that the Inspector misdirected himself on a number of issues on the curtilage point.  In so doing, the Judge endorsed 13 propositions derived by Mr Whale from Blackbushe Airport as to the meaning of “curtilage”.

It is to be hoped that these 13 propositions will assist other elephant spotters…

For a copy of the Judgment, click here.

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