O’Flynn v Secretary of State for Communities and Local Government & Anor [2016] EWHC 2894 (Admin)
The point in plain English: Using land for ordinary garden and recreational activities can be incidental to the enjoyment of a dwellinghouse. When deciding a certificate of lawfulness, the decision-maker must deal properly with that use and with the separate statutory rule for incidental use within the curtilage of a dwellinghouse.
What happened
The dispute concerned part of a larger residential site. Evidence included gardening, sitting and strolling, recreation and dog walking. The Inspector accepted some of those activities but did not properly address their significance when deciding whether the land had become lawfully used with the dwellinghouse.
What the High Court decided
Lang J held that ordinary gardening is a classic example of an activity incidental to residential occupation. The Inspector had also failed to deal separately with section 55(2)(d) of the Town and Country Planning Act 1990, which can mean that use of land within the curtilage of a dwellinghouse for a purpose incidental to its enjoyment is not development at all.
The Inspector’s decision was quashed.
Why O’Flynn matters
The case is a useful reminder not to collapse several different questions into one. Curtilage is not itself a planning use. The factual use of the land, whether it is incidental to the dwellinghouse, and whether section 55(2)(d) applies all need to be considered properly.
Planning Geek explains the evidence and legal tests on our Certificate of Lawfulness page.
Important legal note: Planning Geek is a planning consultancy, not a law firm. This page provides general planning information and is not legal advice. Case law must be read in its factual and legal context and may be affected by later judgments, legislation or policy. Where the original judgment is available, it remains the authoritative source. If the outcome matters to a live case or dispute, take advice from an appropriately qualified planning solicitor or barrister.
Copyright and licensing: Crown copyright and other rights in judgments and source material remain with the relevant rights holders. Where a judgment is reproduced from Find Case Law, it is used under the Open Justice Licence and the source should be acknowledged. Material obtained from other sources is reproduced only where the applicable terms permit it. Planning Geek does not claim copyright in the text of court judgments.