Trainee solicitor Ellie Mullins and solicitor Michael Harman of Holmes & Hills' specialist team of Planning Law solicitors discuss a recent case dealing with the pertinent issue of working from home.
The case of Sage v Secretary of State highlights the issues relevant today regarding working from home. This case shines a spotlight on the implications of working from home and the different factors Courts will consider when deciding upon whether a material change of use has arisen. In that respect Sage provides guidance to individuals considering working from home now and in the future.
Under s55(1) of the Town and Country Planning Act 1990, ‘development’ includes a material change in use of land which requires planning permission. However, under s55(2)(d) of the 1990 Act, planning permission is not required for the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such.
In cases such as Sage, two questions need to be answered in order to determine whether planning permission is required. Firstly, it needs to be identified whether there has been a material change of use? Secondly, is that material change of use for a purpose incidental to the use of a dwellinghouse?
In reaching a decision the Judge considered previous case law as well as National Planning Practice Guidance on the issue. Relevant factors including the location of the dwellinghouse (i.e., in the town or country or remote from other dwellings), its size and the extent of its curtilage (in the context of the incidental use) and, also, the nature and scale of the activity said to be incidental; the more dominant the less likely to be incidental.
Previous case law has indicated that the indulgence of a hobby is more likely to qualify as incidental than some commercial activity, but even then, there must be a degree of objective reasonableness, for example the keeping of 44 dogs as a hobby was not incidental to the use of a dwellinghouse as such as seen in the case of Wallington v Secretary of State for Wales and Montgomeryshire District Council [1991].
The case of Sage involved an individual who used a home gym, based within an outbuilding in his garden, for the purposes of his enjoyment and those of close friends and family, but also for one-on-one personal training sessions with clients. Due to the nature of his work, he had repeat clients coming to and from his home numerous times a week. His clients accessed the facility via a shared passage to the side of Mr Sage’s house.
The procedural history of the case is that this was the second time Mr Sage had applied for a Certificate of Lawfulness, had that application refused and then appealed only for that appeal to be dismissed by a Planning Inspector. The second application seeking to address concerns in Mr Sage’s first unsuccessful appeal to the Planning Inspectorate. Mr Sage argued that the decision was irrational, and that the gym did not cause a disturbance to the surrounding area. Each time Mr Sage claimed that the use of his outdoor gym was incidental to the use of a dwellinghouse, therefore not “development” requiring planning permission under s55(2)(d), and a Certificate was sought on that basis.
The Judge found no error in the Planning Inspector’s reasoning. The decision was rational, with adequate reasons and she [the Inspector] did not consider immaterial considerations. The Inspector was perfectly entitled to find that the training was confined to the outbuilding and, in a compact residential setting, that the scale of the business-related training sessions could not reasonably be considered immaterial or incidental to the enjoyment of the dwellinghouse. On that basis the Inspector found that a mixed use had occurred and that the use constituted a material change requiring planning permission.
Of note, the Inspector recorded two weeks in May 2019 where there were some 32 or 33 business-related sessions, where customers arrived by various means of transportation which Mr Sage had no control over.
This specific case highlights the difficulty in assessing whether there has been a material change of use requiring planning permission. A person may innocently work from home but matters then escalate to the point where, like Sage, there is a material change of use requiring planning permission. Equally, there will be a “tipping point” hereby a Local Planning Authority may take planning enforcement action against the unauthorised mixed use.
Readers can take comfort that case law indicates that where an individual works from home and has no, or very infrequent, visiting third parties (i.e., clients, customers or suppliers) there is unlikely to be a change of use. However, if you are unsure then the prudent thing is to seek advice and the team here at Holmes & Hills Solicitors will gladly assist if you find yourself in that position.
R on the Application of Sage v Secretary of State for Housing, Communities and Local Government Case Number: CO/998/2021
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