A garden use appeal in Hampshire has been dismissed because the applicant could not demonstrate that land claimed as a domestic garden formed a separate planning unit. Inspector Andy Harwood upheld Basingstoke and Deane Borough Council’s refusal of a lawful development certificate on 6 November 2026.
The case involved land behind homes on Laverstoke Lane, where an application sought confirmation of domestic garden use associated with two dwellings. The land contained recognisable garden features, but there was no clear physical boundary separating the claimed area from a wider field.
The garden use appeal highlights an important problem with retrospective certificates: selecting the part of a field for which photographs and statements exist is not necessarily enough to identify the planning unit whose use must be proved lawful. The Inspector could not establish that the submitted red-line site was a separate unit.
Why the garden use appeal failed
The application, submitted in October 2023 under section 191 of the Town and Country Planning Act 1990, sought a certificate for domestic garden use behind two existing homes. The council refused it in May 2024. The appeal against that refusal was determined under section 195, which requires an Inspector to decide whether the refusal of the certificate was well-founded.
The applicant explained that a larger area was owned but that the application boundary had been drawn around land where garden activities were concentrated and features could be evidenced. That choice became central to the outcome because the red line did not correspond with an identifiable boundary or a distinct area of occupation on the ground.
Inspector Harwood saw washing lines, play equipment, ornamental planting, a greenhouse, raised beds and sheds near the rear gardens. Further away were features including a small enclosure apparently used for birds and structures resembling hives. There were also trees and increasingly rough grass across the wider land. Those observations showed domestic activity in places, but did not establish the precise use of the whole relevant planning unit.
The garden use appeal therefore did not turn on a finding that no gardening had ever occurred. Its difficulty lay in defining what land was actually being used, by whom and for which purposes. Physical access was not confined to the two houses named in the application.
Red-line boundaries cannot settle the planning unit
The Inspector noted that the area had no internal fences or other divisions matching the red line. Other nearby properties also appeared to have gates into the land, and there was unrestricted access beyond the site’s southern and northern extremities. The apparent garden use extended outside the claimed boundary, while the rest of the wider field was not explained in sufficient detail.
A planning unit normally starts with the unit of occupation. Whether a smaller part of it can be assessed separately is a matter of fact and degree, including physical separation and whether the uses are different and unrelated. Our guide to planning units and ancillary or incidental uses explains that distinction and why common ownership alone is not decisive.
The council and appellant had not provided evidence establishing whether the surrounding field had another primary use, whether the land amounted to a mixed-use planning unit, or where any separate unit could properly be drawn. The Inspector warned that a mixed-use planning unit cannot be artificially sub-divided
by selecting a convenient area for the certificate.
That distinction makes the garden use appeal particularly relevant to applications for fields adjoining residential gardens. A plan may help describe land, but it does not override the functional and physical circumstances necessary to establish the planning unit.
Garden use is different from residential curtilage
The Inspector also addressed a distinction that frequently causes confusion. Planning legislation does not provide a single definition of a garden, and a garden can include ordinary domestic enjoyment as well as planting. The Inspector made clear that the certificate application did not require a decision on whether the area also formed part of the residential curtilage of any dwelling.
This matters because land can be used for domestic activities without automatically having the same permitted development rights as the curtilage of a dwellinghouse. It is a mistake to treat evidence of occasional mowing, play equipment or a shed as conclusive proof of a separate lawful garden planning unit, let alone of curtilage status.
In the garden use appeal, there was also no realistic restriction that would confine access to the two dwellings identified in the application. This made the stated use, domestic garden associated with those particular houses, harder to reconcile with the evidence on the ground.
Why the ten-year evidence did not decide the case
The Inspector explained that, for this 2023 application, evidence of continuous use over the relevant ten-year period would need consideration if the applicant could first establish the use and the planning unit. That was not a determination that the required period had been achieved or missed. Instead, the application failed at the earlier question of precisely what use of which land was being certified.
Readers should not assume the historic time limit discussed in this decision applies unchanged to every later application. The statutory regime has changed, and the relevant date and nature of the alleged breach need careful checking in each case. The central procedural lesson is independent of that timing issue: a certificate must accurately describe the land and the use for which lawfulness is claimed.
As the Inspector put it, there was no physical or distinct separation
between domestic activity and the wider field. The Inspector was not persuaded that the applicant had discharged the burden of proving the claimed garden use within a separately identifiable planning unit.
Practical lessons for certificate applicants
Before submitting a certificate application, inspect the site boundary against the physical facts. Identify who occupies each area, what use takes place there, whether adjoining land is accessible and whether any dividing fence or different activity genuinely creates a separate planning unit. If the field has multiple uses, explain that evidence rather than drawing around only the features most convenient to the claim.
Contemporaneous photographs, dated statements, records of maintenance and evidence of occupation may all assist, but they must relate to the correct land. A carefully supported history of gardening can still fail if the description of the planning unit is wrong or too narrow. The garden use appeal illustrates precisely that risk.
Our lawful development certificate appeals guide explains how an appeal is assessed and the importance of evidence on the balance of probability. In this instance, the certificate refusal stood, despite visible signs of domestic activity, because the Inspector could not safely identify a separate planning unit matching the application.
The decision is appeal APP/H1705/X/24/3357151, dated 6 November 2026. The official Planning Inspectorate case record sets out the appeal details. The appeal decision is also available on AppealBase.
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