Ricki Sage v Secretary of State for Housing, Local Government and Communities
| Jurisdiction | England & Wales |
| Judge | Sir Duncan Ouseley |
| Judgment Date | 28 October 2021 |
| Neutral Citation | [2021] EWHC 2885 (Admin) |
| Docket Number | Case No: CO/998/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 2885 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Duncan Ouseley
Sitting as a High Court Judge
Case No: CO/998/2021
and
Kate Olley (instructed by KSLAW LLP) for the Claimant
Leon Glenister (instructed by GOVERNMENT LEGAL DEPARTMENT) for the Defendant
The Interested Party did not appear and was not represented
Hearing date: 14 October 2021
Approved Judgment
The Claimant, Mr Sage, lives in a two-storey semi-detached house with a garden, about 20 metres deep, in a residential street in a primarily residential area of Beckenham in the London Borough of Bromley. At the rear of his garden is a timber out-building, with windows, which is used in part as a garden shed, and in part as a gym. Mr Sage keeps gym equipment there including a treadmill, cross-trainer, weights, balls, bench, and punch bag. It has no toilet or showering facilities. The garden, and the shed, can be accessed via a passage to the side of the house, shared with the neighbouring property. Mr Sage uses the gym himself and he permits family and friends to use it. He has used the gym part of the shed since 2016 for his business as a personal trainer, for paying clients, who attend at the premises. He has not sought planning permission for this. Instead, he has applied twice under s191 of the Town and Country Planning Act 1990, for a Certificate of Lawful Use, CLU, for this aspect of his use of the residential property. Such a certificate would be conclusive as to the lawfulness of the use of the property. This case concerns the second application.
Bromley LBC refused this second application for a CLU on much the same basis as it had refused his first application, which had been made with the same end in mind. The second application was intended to overcome shortcomings in the evidence found by the Inspector who dismissed his appeal against the refusal of his first application. He again appealed to the Secretary of State against the refusal of the second application. The Inspector, after an informal virtual hearing and a site visit, dismissed the appeal in a Decision Letter, DL, dated 10 February 2021. Mr Sage appeals against that decision under s288 of the 1990 Act.
Mr Sage claims that the second Inspector's decision took an immaterial consideration into account in her decision, namely what Ms Olley, who appeared for the Claimant, said was “visual disturbance” caused by the use at issue, that the decision was irrational, and that it was vitiated by legally inadequate reasoning.
In granting permission, Mr Timothy Mould QC, a very experienced planning lawyer, sitting as a Deputy High Court Judge, said this:
“This claim raises an arguable issue about the materiality of environmental and amenity considerations to the question whether the use of a building within the curtilage of a dwelling house is for a purpose incidental to the enjoyment of the dwellinghouse as such, within the terms of section 55(2)(d) of the Town and Country Planning Act 1990. The issue is of some importance given the increasing use of the home as a place of work and business. The court will be assisted by the parties' submissions on the correctness in law of the current Planning Practice Guidance on that question….”
The meaning of “development” by way of a material change of use
Section 55(1) of the 1990 Act defines “development”, for which planning permission is required. This includes making a material change in the use of land. Subsection (2) lists operations or uses of land which “shall not be taken for the purposes of this Act to involve development of the land….” By s55 (2)(d), the following use is not be taken as involving development:
“the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such;…”
This subsection means that there are, in a case such as this, two questions to be asked. First, has there been a material change of use? Second, if so, was it for a purpose incidental to the use of the dwellinghouse as a dwellinghouse? It does not follow that all such incidental purposes involve a material change of use, but the subsection provides certainty that where they otherwise would do, planning permission is nonetheless not required. It creates an exception to the fundamental structure upon which development control is erected, through the need to apply for planning permission, its grant, conditional or not, or its refusal, with the related enforcement powers. Its scope and application should be seen in that light. In practice, however, the two questions overlap to such an extent that the answer to the one will frequently follow from the answer to the other. If the purpose is not incidental to the use of the dwellinghouse as a dwellinghouse, there will usually have been a material change in its use, and vice versa. Indeed, this case was approached, without demur on any side, on the basis that the questions here were essentially interchangeable, and the answers to them would inevitably lead to the same outcome.
It is necessary in view of the submissions and Mr Mould's observations to refer briefly to the relevant authorities on material change of use and “incidental” uses. Burdle v Secretary of State for the Environment [1972] 1 WLR 1027, Div Ct, Bridge J, with whom Lord Widgery and Willis J agreed, deals with the planning unit. At 1212D, it was the whole unit of occupation which should be considered “whenever it is possible to recognise a single main purpose of the occupier's use of his land to which secondary activities are incidental or ancillary.” What is important is that secondary activities are not necessarily incidental or ancillary, contrary to the implication of the Guidance. The concepts of secondary and ancillary/incidental may overlap but are not the same. If incidental or ancillary, they are in law part of the single main use, and for these purposes are not a separate use at all: the “single main use” is in reality the single use of which the incidental and ancillary uses are part.
It may also be right to consider the entire unit of occupation even though a variety of activities are carried on without them being ancillary or incidental to each other, and where they are not confined to separate and physically distinct areas; this is a mixed or composite use, as the Inspector found had occurred here. At p1212H, Bridge J continued:
“Thus, for example, activities initially incidental to the main use of an area of land may grow in scale to a point where they convert the single use to a composite use and produce a material change of use of the whole.”
Wallington v Secretary of State for Wales (1991) 62 P&CR 150, CA, concerned an enforcement notice alleging that the keeping of 44 dogs as a hobby was not incidental to the use of a dwelling house “as such”, that is as a dwellinghouse. The notice was upheld and the dogs limited to 6. The fact that the owner genuinely regarded this as a hobby “cannot possibly suffice to prove by itself” that the purpose was incidental to the enjoyment of the dwelling house as a dwellinghouse. Significance had to be given to the words “as such”. Slade LJ, with whom Nicholls and Farquharson LJJ agreed, said at p156:
“Furthermore, to construe the phrase “incidental to” as meaning no more than “not dominant” in my judgement gives inadequate weight to the phrase. The wording of [the precursor to section 55 (2)(d)] in my judgement contemplates that the dwelling-house in question at all material times remains used as a dwelling-house, not as anything else, and that the other use in question is no more than ancillary to that use a dwelling-house.
In my judgement, the inspector was perfectly entitled to have regard to what people normally do in dwellinghouses to decide whether or not, as a matter of fact and degree, on the one hand (a) the keeping of the appellants' 40 or more dogs should reasonably be regarded as incidental to the enjoyment of her dwelling house as a dwelling house or, on the other hand (b) the number of dogs kept by her exceeded what could reasonably be so regarded.”
The Guidance in substance conflicts with the first and second sentences above. The structure of the Act did not mean that, because the section applied, even though there had been a material change of use, the incidental use to which section 55(2)(d) applied had to be one which was abnormal for a dwellinghouse.
Slade LJ found helpful and apposite what Sir Graham Eyre QC, sitting as a Deputy High Court Judge, said in Emin v SSE (1989) 58 P&CR 416 at p422, although the provision Sir Graham was dealing with concerned building development “required” for a use incidental to the enjoyment of the dwellinghouse as such:
“[This] could not rest solely on the unrestrained whim of him who dwelt there but connotes some sense of reasonableness in all the circumstances of the particular case. That was not to say that the arbiter can impose some hard objective test so as to frustrate the reasonable aspirations of a particular owner or occupier so long as they are sensibly related to his enjoyment of the dwelling. The word “incidental” connotes an element of subordination in land use terms in relation to the enjoyment of the dwelling-house itself.”
Farquharson LJ commented, in Wallington, contrasting hobbies with commercial use:
“On the other hand, the use of one room in a dwelling house as an office or study, even though it has commercial aspects, could still be regarded as incidental to the enjoyment of the house as a dwelling — house.”
He then referred, of relevance both points, to...
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