McGaw v The Welsh Ministers

McGaw v The Welsh Ministers

The inspector erred in law by measuring the height of the proposed building from the existing ground level rather than the level as it would be after completion of the development, including backfilling as shown on the plans. The correct interpretation of Class E requires a prospective assessment based on the completed development. The ground immediately adjacent to the southern wall is the neighbour's garden, which is less than 2.5 metres below the relevant part of the building. The proposed development therefore falls within Class E and is permitted development.

Parties
Claimant: Mark McGaw; Defendant: The Welsh Ministers; Interested Party: The Council for the City and County of Swansea
Jurisdiction
England and Wales
Judgment Date
07 October 2020
Procedural Posture
Judicial Review (planning) / Judgment After Substantive Hearing
Outcome
Claim allowed; inspector's decision quashed; matter remitted to Welsh Ministers for reconsideration in accordance with the judgment.
Legal Topics
Permitted Development, Interpretation of Planning Legislation, Judicial Review, Ground Level Measurement in Planning
Planning Law Administrative Law Permitted Development Interpretation of Planning Legislation Judicial Review Ground Level Measurement in Planning

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Parties

Mark McGaw

Claimant

The Welsh Ministers

Defendant

The Council for the City and County of Swansea

Interested Party

Procedural Posture

Judicial Review (planning) / Judgment After Substantive Hearing

Legal Issues

  1. 1 Whether the proposed garden room falls within Class E of Schedule 2 of the Town and Country Planning (General Permitted Development) Order 1995 as it applies in Wales
  2. 2 Proper interpretation of 'ground level immediately adjacent' for height measurement under Class E
  3. 3 Whether the inspector erred in law in determining ground levels for height calculations under Class E(e) and (f)

Ratio Decidendi

The inspector erred in law by measuring the height of the proposed building from the existing ground level rather than the level as it would be after completion of the development, including backfilling as shown on the plans. The correct interpretation of Class E requires a prospective assessment based on the completed development. The ground immediately adjacent to the southern wall is the neighbour's garden, which is less than 2.5 metres below the relevant part of the building. The proposed development therefore falls within Class E and is permitted development.

Court Disposition

Claim allowed; inspector's decision quashed; matter remitted to Welsh Ministers for reconsideration in accordance with the judgment.

Orders

  • The determination of Mr Nixon is quashed.
  • The Welsh Ministers are directed to reconsider the matter and reach a decision in accordance with this judgment.