Working from Home and Planning Permission.
Sage v Secretary of State for Housing, local government and communities [2021]
In 2021, the High court case Ricki Sage v Secretary of State for Housing, Communities and Local Government & London Borough of Bromley [2021]dismissed all grounds for appeal presented by a personal trainer who was running a gym in his garden shed/studio. This was a planning dispute with the Secretary of State for Housing, Local Government and Communities. This article looks at the case from the perspective of residential surveyors.
The claimant (Mr Sage) was a personal trainer who had a timber outbuilding with windows in his garden that he used partly as a garden shed and partly as a gym, kitted out with gym equipment including a treadmill, cross-trainer and punch bag. The garden and the shed were accessible via a passage at the side of the house, which is shared with the neighbouring property.
It is interesting to note in the judgement that the term “shed” was used. There is now a myriad of garden timber constructions available, often being marketed as suitable for home offices etc. and usually described as ‘cabins’ or ‘garden offices’ etc. While described as a ‘shed’, the judgement also noted that it had windows, but no toilet or showering facilities.
Mr Sage used the gym himself and also allowed family and friends to use it. However, since 2016 he also used the gym part of the shed for his business as a personal trainer, with paying clients attending the premises. He did not seek planning permission for this. Instead, he 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.
s191 of the Town and Country Planning Act 1990 states:-
If any person wishes to ascertain whether—
(a)any existing use of buildings or other land is lawful;
b)any operations which have been carried out in, on, over or under land are lawful; or
(c)any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,
he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.
In other words, a Certificate of Lawful Existing Use or Development (CLEUD) is legally granted by a Local Planning Authority to retrospectively legalise a previously unauthorised development or activity. Alternatively, it can be used to confirm that a development was carried out in accordance with a planning permission that has been granted. Because a CLEUD certifies that an existing building/use is lawful, it means the Local Planning Authority cannot take any enforcement action.
A development can become lawful and exempt from enforcement if it has been in situ for a specified period of time. In most cases, development becomes immune if no action is taken between 4-10 years, depending on the development.
What is not clear is what prompted Mr Sage to make these applications. Planning House, the independent town planning consultancy based in the North East and Midlands, advise that a CLEUD is likely to be required in the following circumstances:
- If planning enforcement action is threatened by a local council and you think the time for action has passed (as per the below timescales)
- If you are planning on selling or mortgaging your property and planning permission was never granted and you need to show a prospective buyer that no enforcement action can be taken
- If you wish to confirm that a development was commenced within the relevant timeframe and complied with conditions, to confirm your permission is extant and can still be implemented.
In this case, it must be that Bromley Council initiated the action by threatening enforcement, perhaps as the result of a complaint made by a neighbour. But we can only speculate on this point.
Bromley Council refused both applications and Mr Sage appealed both times, but the appointed inspectors dismissed the appeals. Following the second appeal, Mr Sage appealed under s288 of the 1990 Act to the High Court.
The issue, in this case, was not if the building itself was inappropriate, but if the way it was being used was. As a rule of thumb, garden sheds and outbuildings do not need planning permission if they are only one storey with a maximum eaves height of 2.5 metres and if they do not cover more than half (50%) of the area that surrounds the original home and in the back garden of the house. However, this does not apply if the property is in a conservation area, a national park, or if it is listed.
So, why did Bromley Council refuse to grant the Certificate, and why did the appeal against this fail?
Material Change of Use
Since there was no discussion about the lawfulness of the shed itself, the issue in question, in this case, was whether the use of the shed was lawful, or in other words, did it constitute “development” for which consent was required.
In considering the facts of the case, the judge, Sir Duncan Ouseley, stated:
“The use of any buildings or other land within the curtilage of a dwelling house for any purpose incidental to the enjoyment of the dwelling house as such…” was not considered to be “development”.
So, then the question was if the purpose, in this case, was “incidental to the enjoyment of the house”, or was, in fact, something different.
Government Guidance
Prior to this judgement, the government website contained the following published guidelines:
“Do I need planning permission to home work or run a business from home?
Planning permission will not normally be required to home work or run a business from home, provided that a dwelling house remains a private residence first and business second (or in planning terms, provided that a business does not result in a material change of use of a property so that it is no longer a single dwelling house). A local planning authority is responsible for deciding whether planning permission is required and will determine this on the basis of individual facts. Issues which they may consider include whether home working or a business leads to notable increases in traffic, disturbance to neighbours, abnormal noise or smells or the need for any major structural changes or major renovations.”
It was this guidance “Do I need planning permission to home work or run a business from home?” which the judge found to be problematic for two main reasons:-
- “…is what use is being made of the land, including its ancillary uses, and, in the case of a dwelling house, whether any purposes to which it is put are reasonably incidental to its use as a dwelling house. The passage in brackets at the end of the first sentence of this guidance is correct but too readily capable of leading to the concept, of a material change of use or a purpose incidental to the use of dwellinghouse as such, being misunderstood. This is because a business use in a dwellinghouse may well be secondary to the primary residential use of the dwellinghouse; but may still create a material change of use, be for a non-incidental purpose. A secondary use will involve a material change of use of the dwellinghouse to a mixed or composite use, as was found to have occurred here, unless it is so secondary that it is merely ancillary to the residential use as a dwelling house such that there is still just that one use; or in the case of a dwelling house, the purpose at issue is reasonably incidental to the enjoyment of the dwelling house as such. This is a crucial point which the Guidance ignores or blurs badly.
- … a material change of use can be made without any adverse environmental impact at all. Treating environmental impact as the seemingly crucial issue for the judgment as to whether a material change of use has occurred, or a purpose is reasonably incidental is not consistent with clearly established law. The crucial test is whether there has been change in the character of the use. Environmental impact can be relevant as evidence that a material change has occurred because a use of the new character may be capable of yielding environmental impacts or have done so already. The Guidance as written is apt to mislead as to what the real question is, and as to the true but limited relevance of environmental impact.
However, this is jumping ahead a bit because the judge had to ask the fundamental questions:
- Had there been a material change of use?
- And if so, was it for a purpose incidental to the use of the property as a dwelling?
When considering the matter, the judge did consider previous cases including Wallington v Secretary of State for Wales: CA 12 Nov 1990.
In this case, a property owner appealed against an enforcement notice. The case was that she kept a large number of dogs (44), and she claimed this was for domestic pleasure purposes, in other words, a hobby, and as such was incidental to the use as a private domestic dwelling.
The appeal failed based on having consideration as to what would be normal activities in a dwelling house. In the judgement, Lord Justice Slade considered the phrase “of and incidental to the enjoyment of the dwellinghouse” and said:
“As drafted, however, the phrase must mean ‘of and incidental to the enjoyment of the dwellinghouse as a dwellinghouse’. The mere fact that an occupier may genuinely regard the relevant activity as a hobby cannot possibly suffice to prove by itself that the purpose is incidental to the enjoyment of the dwellinghouse as a dwellinghouse.”
Lord Justice Farquharson added that it was acceptable to include an element of objective reasonableness when considering the concept of what is incidental to the enjoyment of the dwelling house and that it could not rest solely on the unchecked desires of the occupier of the house. But he also added that the use of a room in the house as a study or office, even with commercial aspects (such as working from home,) could still be regarded as incidental to the enjoyment of the house as a dwelling house.
On considering this point, Sir Duncan did say that a hobby was more likely to be “incidental to the enjoyment of the house” than a commercial activity.
So, was the activity here incidental to the enjoyment or not?
The issue of noise was considered, and it was found that, even with the doors open, the activities in the garden gym were no noisier than the background noise in the area and surveys found them to be hardly audible.
So, then the issue was the “comings and goings” and the level of commercial activity. Bromley Council refused to grant the certificate on the grounds that the level of activity as described in the application and the supporting documentation would amount to a material change and consequently need planning permission.
The gym was used six days a week, some days starting at 6am and finishing at 8pm. Having considered all the facts and case law, the judge concluded that this level of activity in a residential area could not be considered ancillary to the residential use of the dwelling and that Bromley Council was correct to refuse to grant the certificate.
Where does this leave working from home?
The judge did acknowledge that “… there are many forms of service offered within a dwelling house, from private tuition, including in music or singing, child minding, medical services. I accept that what is normal or reasonably incidental now may have shifted with changes in work habits as a result of Covid.”
However, he was critical of the government’s guidance, saying that it was worded in such a way that it was too readily capable of being misunderstood when dealing with the concept of a material change of use or a purpose incidental to the use of dwelling house. As in this case, a business use in a dwelling house may well be secondary to its primary use, that of a residential dwelling, but by virtue of its intensity, for example, still create a material change of use.
The judge said, “This is a crucial point which the Guidance ignores or blurs badly”.
Consequently, the guidance has been removed from the government’s website and at the time of writing, has not been replaced.
The important points regarding the future to working from home are the two issues the judge had with the guidance. The first, explained in paragraph 81 of the judgement, is that just because the dwelling has a primary use of a home and a secondary use of a business, this does not mean that the business use will be incidental to the use of a home as a home. There is confusion between material change and incidental use, and these can be blurred.
And the second, explained in paragraph 83, that the focus is on environmental impact and that this may be one of many factors and not the only factor (it is not an exhaustive list). The judge said that the “crucial test is whether there has been a change in the character of the use”. This change in the character of the use may be measured by disturbance produced, but it is not limited to that.
Someone who was ‘working from home’ would infer that they wouldn’t need to require planning permission to work from home according to the government guidance. However, the decision made in this case and the removal of that guidance from the government website now casts some doubt on this. It will be interesting to see what replacement wording is published, if any.
