An industrial canopy appeal has failed at Kent Science Park in Sittingbourne after an Inspector found that the proposed structure would fall within five metres of the commercial premises’ curtilage boundary.
Inspector T C King dismissed appeal 3355321 on 27 October 2026. Jazz Pharmaceuticals had challenged Swale Borough Council’s refusal to issue a certificate of lawful proposed development for a front entrance canopy at Building 740, Heeley Close.
I would treat this industrial canopy appeal as a useful reminder that permitted development rights for industrial and warehouse buildings do not turn solely on whether the proposed structure is functionally suitable or attractive. How the curtilage is identified can determine whether a statutory right exists at all.
The industrial canopy appeal and Class H
The application concerned a new canopy roughly four metres above ground at the northern front of a commercial building on an established science park. The appellant was seeking confirmation that the proposal would be lawful under Schedule 2, Part 7, Class H of the General Permitted Development Order.
Class H permits certain extensions, alterations and new buildings for industrial and warehouse undertakings, subject to its qualifications and limitations. The relevant restriction in paragraph H.1(e) excludes development if any part would be within five metres of a boundary of the premises’ curtilage.
Unlike a conventional planning application, this was an appeal concerning a certificate of lawfulness. Under section 195 of the Town and Country Planning Act 1990, the Inspector had to decide whether the proposal was lawful on the evidence, legislation and relevant case law. Whether a canopy would improve pedestrian shelter or appear acceptable in the business park was not the question.
The industrial canopy appeal therefore raised a particular physical and legal issue: exactly where did the curtilage of Building 740 end? That boundary is not necessarily the same as an ownership line, the edge of the wider estate or an informal landscape strip.
Why curtilage was decisive
Building 740 stood within grounds bordered by roads on three sides. The relevant roads included Guillat Avenue, Popjack Road and an access road from Popjack Road leading towards Heeley Close.
The Inspector examined the relationship between the building and surrounding land, including the narrow strips that formed part of its immediate setting and commercial operation. The assessment drew on the concept of intimate association with a building, a familiar consideration in curtilage cases.
Inspector King decided that the perimeter land on those sides belonged to the commercial curtilage of the unit. On that basis the proposed canopy was inside the five-metre restricted area when measured from the northern boundary.
Inspector King stated that “the burden of proof is on the appellant”. That is particularly important in a lawful development certificate case. The industrial canopy appeal was not an opportunity to persuade the Inspector that the council should exercise planning discretion. The evidence had to show that the proposal met the legal criteria for the certificate sought.
This finding defeated the industrial canopy appeal. The correct curtilage assessment was more important than the appellant’s apparent assumption that the relevant limit should be measured from another point in the wider business park.
The Inspector discussed Hiley v Secretary of State [2022] EWHC 1289 (Admin), but regarded the wider principles from Methuen-Campbell v Walters [1979] QB 525 as more relevant to identifying the curtilage in these circumstances. Those authorities must be applied carefully to individual facts rather than read as universally fixing the boundary of every industrial site.
What this means for industrial permitted development
A certificate of lawfulness cannot grant discretion to waive an unmet Class H limitation. If the canopy is within the statutory distance from the relevant boundary, the development is outside the permitted development class regardless of the perceived practical merits of the proposal.
The industrial canopy appeal consequently ended in dismissal. The Inspector agreed with the council’s conclusion that the proposal did not represent permitted development and would require planning permission instead. That leaves open the separate planning merits of a conventional application, which were not decided by this appeal.
For businesses planning a new canopy, warehouse extension or loading shelter, the lesson is to establish the premises’ true curtilage before relying on Part 7 rights. Drawings should show the extent of land intimately associated with the building, nearby estate roads and the shortest distance to the proposed works.
That exercise is particularly important on multi-building industrial estates where different forms of access, servicing, landscaping and estate ownership can make curtilage less obvious. The application must also address every other Class H restriction and condition, not only the five-metre rule.
Planning Geek’s Class H guide to industrial and warehouse development sets out the wider permitted development conditions. Its curtilage guidance explains why boundaries and occupation matter when assessing statutory rights.
The industrial canopy appeal should not be mistaken for an Inspector imposing a new restriction. It illustrates the application of an existing rule and the importance of proving where that rule bites on the site itself.
Decision and sources
Inspector T C King dismissed appeal 3355321 on 27 October 2026, upholding Swale Borough Council’s refusal of the certificate of lawfulness. The Inspector’s decision is Planning Inspectorate material under the Open Government Licence v3.0. The appeal decision is also available on AppealBase.
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