In October 2021, judge Sir Duncan Ouseley shed some further light over this complex issue in his judgment of the High Court case Sage v Secretary of State for Housing, Local Government and Communities  EWHC 2885 (Admin).
Mr Sage (the claimant) operated as a personal trainer from his garden shed, which was an outbuilding at the rear of the garden, and which can be accessed through a shared passageway. The outbuilding was partly used as a gym for commercial purposes and was partly used as a garden shed. The claimant did not seek planning permission prior to embarking on his business venture but had twice applied for a Certificate of Lawful Use (CLU) for the outbuilding, for the purposes of using part of the outbuilding for a professional service as a personal trainer. The first CLU application was refused on the ground that the number of people accessing the gym had resulted in a substantial increase in activity creating noise and disturbance around the property. The claimant appealed to the Secretary of State and the appeal was dismissed. The planning inspector concluded that there had been material change of use of the property to a mixed use as a dwelling and a personal training studio.
The claimant then made a second application for CLU providing evidence of a reduction in hours of use by his clients to around 30 per week over six days, details of the client’s mode of transport and letters from neighbours indicating an absence of noise or disturbance, to overcome previous shortcomings in evidence, found by the planning inspector in the first appeal. The second application was also refused on the ground that the use was not incidental to the residential use of the property and resulted in an overall change in its character. The claimant appealed the second refusal of the certificate by London Borough of Bromley to the Secretary of State. The planning inspector subsequently dismissed the appeal, and the claimant appealed the Secretary of State’s decision to the High Court. The claimant submitted that the planning inspector had taken into account “visual disturbance” as an immaterial consideration and had failed to explain why there was a visual disturbance from four or five visitors daily.
The High Court dismissed the appeal on all grounds, concluding that the planning inspector had rationally found that the level of use had gone beyond which was incidental to a dwellinghouse. The claimant’s use of his shed for six days a week, with 30 or so sessions, in a property in a tight knit residential area, could not be considered anything other than a material change of use requiring planning permission. The key points from the judgement are as follows:
- Immaterial consideration – the claimant argued that “visual disturbance” was an immaterial consideration because it did not feature in the Planning Practice Guidance (PPG) exhaustive list of issues, which the decision maker might wish to consider in deciding whether there had been a material change of use. The judge held that the considerations listed in the PPG were not mandatory consideration but possible ones and that it would be irrational to make the distinction suggested by the claimant (paras 57-58).
- Adequacy of reasons – the claimant submitted that the planning inspector had not explained why there was visual disturbance from 4 to 5 visitors daily and the reasoning was legally inadequate. The judge held that reason had to enable the reader to understand why the matter was decided as it was, what conclusions were reached on the principal important controversial issues and how any issues of law or fact were resolved. In order for the decision to be quashed, any deficiency in reasoning had to substantially prejudice the losing party. The judge held that the planning inspector had objectively assessed the effect of the general disturbance caused on the residential amenity and had given a straightforward expression of her planning judgement (para 60-62).
- Irrationality – the judge held that the consideration of the general disturbance in a residential area from comings and goings for a business use at a residential property was a matter of planning judgement for the planning inspector and that it was for the planning inspector to assess, objectively, what the neighbours would be aware of and disturbed by. The commercial use was routine with some quite early and late hours and the client’s mode of transport cannot be controlled. The property was a small one in a tight knit residential area and the number of days a week and the hours of daily operation of the studio were crucial determinants of scale and degree in determining whether the use was incidental to the use of the dwellinghouse as such. The judge held that the planning inspector’s conclusion that the level of use had gone beyond that point was unarguably rational (paras 65, 67).
- Form of application – the Judge stated that the application for CLU requires detail and specificity (s191(5) of the Town and Country Planning Act 1990) and the PPG accurately reflects that provision and is clear about what is required. The judge found that the claimant’s description of the existing use was wholly inadequate for a CLU as it lacked information on the numbers in the existing use, the maximum in a day or week, a description of the garden use and means of access, whether the outbuilding doors were opened other than for entrance and exit and whether people crossed the garden to use the bathroom in the house. The judge found that the application could have been rejected out of hand in the form in which it had been presented (paras 74, 76-77, 79). It, therefore follows that any application for a CLU must be completed to display sufficient information and only in such a case would the local planning authority be likely to grant such a certificate. Local planning authorities have powers under s191 to modify the description of the proposed development, however the judge found that the lack of detail here went beyond the modification powers of the local planning authority (paras 74, 76-77, 79).
- Certificate of lawful use & PPG – S191 of the Town and Country Planning Act 1990 enables a person who wishes to ascertain whether an existing use was lawful to apply for CLU and is not concerned with the planning merits of the use. The PPG, section headed “Do I need planning permission to homework or to run a business from home?”, states that planning permission would not be normally required to work or run a business from home as long as the house remains primarily a private residence and the business use does not result in a material change of use of the property”. The judge found that the government guidance on working from home was potentially misleading and that it appeared to treat environmental impact as the crucial issue for the judgement as to whether a material change of use had occurred or whether a purpose was incidental, whereas it considered that the crucial test was whether there had been a change of use in character of the use. The judge considered that aspects of the guidance were “too readily capable of being misunderstood” for example the guidance did not clearly state that, although a business use of dwellinghouse may well be secondary to the primary residential use of that dwelling, it could still amount to material change of use. It was concluded by the judge that the planning inspector properly directed by lawful guidance could not rationally have concluded, as matter of fact and degree, that the claimant’s six day a week use, with 30 or so sessions, in a property in a tight knit residential area was incidental or ancillary to the use of the property as dwellinghouse (paras 82, 86).
It is clear from this decision that working from home does not extend to all occupations in the same way, and care should be taken to ensure that the parameters of what it proposed are compatible with residential use. If the work undertaken results in a material change of use enforcement action can be taken by the Local Planning Authority and the undertaking of the work in question at the dwelling prevented.
If you need advice or assistance in relation to Certificates of Lawful Use, our specialist Planning & Environmental Law team would be pleased to assist.
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