Wallington v Secretary of State for Wales
| Jurisdiction | England & Wales |
| Judgment Date | 07 November 1990 |
| Date | 07 November 1990 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Justice Slade, Lord Justice Nicholls and Lord Justice Farquharson
Planning - material change of use - number of dogs
The keeping of a large number of dogs, 44 at one point, in a cottage in Wales involved a material change of use of the premises for which planning permission was required and was not exempted as a use incidental to the enjoyment of the dwelling house as such notwithstanding that the dogs were kept as a hobby and no commercial considerations were involved.
The Court of Appeal so held in dismissing an appeal by Dr M P Wallington from a judgment of Mr Malcolm Spence, QC, sitting as a deputy High Court judge on February 20, 1989, who upheld the dismissal by a planning inspector on August 9, 1988 of an appeal against an enforcement notice to the effect that the keeping of the dogs involved a material change of use and requiring that the number of dogs should be reduced from 44 to six.
Mr Jeremy Sullivan, QC and Mr Peter Village for the appellant; Mr John Laws for the secretary of state.
LORD JUSTICE SLADE said that the wording of section 22 of the Town and Country Planning Act 1971 made it necessary for the inspector to consider two separate questions.
First, had a "material change in the use of" the premises, within the meaning of section 22(1), taken place by reason of the fact that a large number of dogs was being kept there? That was the ground on which Montgomeryshire District Council in its enforcement notice had alleged that development, and thus breach of planning control, had taken place.
If, though only if, the answer to the first question was in the affirmative, the inspector had then to consider the second question, namely whether the use of the premises for the keeping of dogs in large numbers constituted the use of the premises "for any purpose incidental to the enjoyment of the dwelling house as such" within the meaning of section 22(2)(d).
The inspector had answered the first question in the affirmative and the second in the negative, thus concluding that the use of the premises for the relevant purpose did not fall within the exemption conferred by section 22(2)(d).
The appeal before the court was based solely on the asserted applicability of the exemption conferred by section 22(2)(d).
It had been submitted that the standard applied by the inspector in that respect was erroneous because introducing a test of...
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R Andrew Zylinski v Secretary of State for Communities and Local Government (First Defendant) Ealing Borough Council and Others (Interested Parties)
...as incidental to the enjoyment of the dwellinghouse.'" 26 I was referred to the decision of the Court of Appeal in the case of Wallington v The Secretary of State [1990] 62 P and CR 150, which concerned the keeping of dogs. The appellant in that case lived in a cottage where she kept 44 dog......
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Ricki Sage v Secretary of State for Housing, Local Government and Communities
...the single use to a composite use and produce a material change of use of the whole.” 9 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 suc......