Judge quashes refusal by planning inspector of application to build garden room

The High Court has quashed the Welsh Government’s rejection of a Swansea man’s application to build a garden room after protracted litigation.

His Honour Judge Jarman QC, sitting as a judge of the High Court, said Welsh Ministers must reconsider the application made by Mark McGaw and “reach a decision in accordance with this judgment”.

Mr McGraw wished to build in the garden of his home and made two applications to City and County of Swansea Council for a certificate that his proposals fell within Class E of Schedule 2 of the Town and Country Planning (General Permitted Development) Order 1995 (GDPO) and amounted to lawful development.

Both were rejected as were his two appeals to inspectors appointed by the Welsh Ministers.

He then successfully sought judicial review and the application was remitted to Welsh Ministers for reconsideration.

An inspector, a Mr McCooey, dismissed the application on the basis that the front of the building would exceed three metres from the immediate adjacent ground and parts would be within two metres of a boundary wall and exceed 2.5 metres in height, and therefore would exceed height limitations set out in Class E of the GDPO.

Mr McGaw amended his plans to try to meet these objections, but was again refused a certificate by Swansea, which said that the building would now be 3.48 metres high and so exceeded the permitted size.

Another inspector, a Mr Nixon, made a site visit for a further appeal which he dismissed on the basis that the ground levels for the purposes of Class E should be the existing levels, and not the intended backfilling levels proposed along the northern wall of the building.

Giving judgment in McGaw v The Welsh Ministers [2020] EWHC 2588, HHJ Jarman said Mr Nixon found the backfilling "would be with material taken from floor slab and footing excavations as none of the previously excavated material appeared to remain on site.

“It was that factor taken together with the finding that the excavated area existed for a considerable time and had become an actively used part of the domestic curtilage in its current form on which he based his conclusion that the relevant ground levels from which heights should be calculated should be those existing at the time of the application.”

But the judge said the height of any part of the building referred to in Class E.1(e), “is expressly said to be the height that would exceed three metres (emphasis added).

“Indeed, this is the tense used in each of the subsections of [Class] E.1. The use of the conditional tense, or hypothetical future, can only sensibly be taken to indicate the state of affairs which would obtain if the proposed development is carried out.

“The proposed development in this case…includes the backfilling of the northern wall of the building to bring the upper garden at that point back up to, or at points slightly exceeding, pre-excavation levels.”

He said the length of time an area had been excavated was not relevant and that Mr Nixon’s reasoning was incorrect concerning the height of the budding relative to a  neighbouring garden.

The judge said: “The facts on which Mr Nixon based his reasoning were not relevant to the consideration of Class E as applied to the proposed development in this case.

“The claimant does not challenge the remainder of the decision and in my judgment there is only one correct answer on that basis and that is the proposed development is within Class E.”

Mark Smulian