In Sage v Secretary of State for Housing, Communities and Local Government [2021] EWHC 2885 (Admin) the High Court has provided useful clarification for decision-makers when assessing whether secondary business use of a dwellinghouse constitutes a material change of use.
The claimant had been using an outbuilding in his garden as a gym both personally and to provide around 30 personal training sessions a week to clients. When the council rejected his application for a certificate of lawfulness to confirm that no change of use had occurred, the claimant unsuccessfully appealed to the Planning Inspectorate. The claimant challenged the inspector’s decision on the basis that an immaterial consideration, namely “visual disturbance”, had been taken into account and that the decision was irrational with inadequate reasoning.
In rejecting the challenge, the court referred to section 55(2)(d) of the Town and Country Planning Act 1990, which provides that the use of such a building for a purpose incidental to the enjoyment of a dwellinghouse would not constitute development for which planning permission is required. Therefore, the relevant issue was whether the use was ancillary to the residential use and did not amount to a material change of use.
The court held that an inspector could not rationally find that such six-days-a-week use over the hours specified in a tight-knit residential area was incidental or ancillary to the residential use of the property. With regard to “visual disturbance”, it confirmed that this may be a relevant environmental impact, in addition to the noise generated from the activity, the transport impacts and the nature of the area, and that although planning merits cannot be considered when determining a certificate of lawfulness application these factors may be relevant in determining whether a material change of use has occurred.
The court criticised the relevant Planning Practice Guidance entitled “Do I need planning permission to homework or to run a business from home?”, as this could mislead readers to believe that, provided a business use is secondary to residential use, this would not constitute a material change of use and that a material change of use would always require the use to have environmental impacts, both of which are not the case under the law. Criticism was also made of the claimant’s certificate of lawfulness application as the description of the use failed to provide the necessary detail or specificity.
Although this case is unlikely to affect the average home office worker, it does raise potential issues for other types of homeworking, for example private tuition, pet sitters, etc, and calls, perhaps indirectly, for a redrafting of the related PPG to better assist decision makers in a post-Covid world. It also acts a reminder that certificate of lawfulness applications must achieve a certain level of detail to even merit consideration.
Erica Snellgrove is a solicitor in the planning & environmental team at Irwin Mitchell
