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When working from home requires planning permission

Leon Glenister analyses an important judgment clarifying the approach to be taken when considering whether working from home requires planning permission.

Section 55 of the Town and Country Planning Act 1990 sets out when planning permission is required in such circumstances. Permission is required for a “material change of use” (section 55(1)); however, even if there is such a material change of use, any use which is “incidental to the use of the dwellinghouse as such” does not require planning permission (section 55(2)(d)). The questions will often lead to the same answer, but not necessarily so (paragraphs 5-6).

The key question as to whether use is incidental is whether there has been a change in the character of the use. Environmental factors, such as noise and disturbance arising, are relevant but that itself is not the test. In Sage v Secretary of State for Housing, Local Government and Communities [2021] EWHC 2885 (Admin) Sir Duncan Ouseley suggested the relevant part of the PPG was reviewed in this light, as although correct it may mislead as to the emphasis of the test (paragraph 82).

For example, the actual disturbance may point to a nature or degree of use which is materially different from that of a dwelling house or its incidental purposes, but is not the touchstone of the materiality of the change of use (paragraph 84).

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The Judge acknowledged that what is normal or reasonably incidental may have shifted with changes in work habits as a result of Covid (paragraph 84).

The case concerned a personal trainer who used part of his outbuilding as a gym. He resided in a two storey semi-detached dwelling in Beckenham, and the houses were described as being in a “tight knit design”. There were (at least) 4 to 5 clients a day on weekdays and further clients on the weekend. He had made an application for a certificate of lawful use (having already made a previous application which was rejected by the local authority and an appeal dismissed by another Inspector) (paragraph 55).

The Judge concluded the Inspector rationally found that, as a matter of fact and degree, the level of use had gone beyond that which is incidental to a dwelling house; but further that she could not have rationally reached any other conclusion (paragraphs 63-71, 86).

The Court also emphasised the requirement for applicants for a certificate of lawful use to be specific. In the case, the applicant had provided a “wholly inadequate” description of the use that had been sought. Basic information had not been provided such as the existing numbers of use, the maximum, how they accessed the outbuilding, whether people crossed the garden to use facilities in the house, and so on. It would have been open to the authority to reject the application out of hand (paragraphs 19-24, 74-79).

Leon Glenister is a barrister at Landmark Chambers. He represented the Secretary of State in this case.

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