The recent judgment in the case of Sage v Secretary of State for Housing, Local Government and Communities [2021] EWHC 2885 (Admin), provides clarification on when planning permission is required to work from home which is more important than ever with the increasing use of the home as a place of work and business.
Planning permission is required when there is a "material change" of use as well as when there are operational works. One of the exceptions to this requirement is use for a purpose incidental to the enjoyment of the dwellinghouse. The judgment acknowledges that the two tests often overlap, but not always. The key question as to whether use is incidental is whether there has been a change in the character of the use.
The case dealt with a personal trainer who lived in a semi-detached house. In his garden was a building which he used as a gym. The gym was used by himself, friends and family and for paying clients (four to five a day on weekdays and more at the weekend). He had applied for a Certificate of Lawful Existing Use to confirm that the use of the gym was lawful without any planning permission, on the basis that either it did not amount to a material change of use or was incidental to the residential use. That CLEUD was refused by the Council and he had appealed. The High Court held that the Council was correct as the use had gone beyond what was incidental.
What implications will this case have for councils, individuals working from home or neighbours of those working from home?
Whilst there are often planning appeals dealing with similar cases this is the first high court decision that has considered the issue of additional uses in the context of a residential home.
Given the change in working from work patterns caused by the pandemic, its guidance is therefore most welcome. Councils are likely to see increased numbers of complaints from neighbours as people settle into new patterns post-pandemic. Most individuals who want to carry out their business from home will just get going with it and await any complaints/threatened enforcement action. However, for those that need to invest capital to make adaptations to their home before they carry out the business there, they may want to consider applying for a Certificate first. The decision to make a CLEUD application, though, is one that should only be made after careful advice as, if refused, it could lead to enforcement action. If a CLEUD application is to be made, it also needs careful preparation to ensure it is precise enough so that the Council can assess the impacts.
What wider implications does the case have for commercial land owners?
The case is a helpful reminder for any situation where a new use is to be introduced outside of the authorised use and the correct test to be applied, and how to carry out that assessment, to determine whether the new use is lawful without further planning application. Any land owner before introducing a new use that is more than de minimis, should assess whether it is likely to amount to a material change of use (and if so whether planning permission would be likely to be granted). If likely to amount to a material change of use, but permission would be unlikely to be granted, temporary permissions could considered or changes to the use/development so that it would remain below the threshold.
On acquiring any property, developers should always ensure they have assessed their proposed use against that already carried out and that which is authorised. If these don’t all match up, it is worth considering a CLEUD application whilst the seller still has an interest.
Does the case have any other implications?
As regards CLEUD applications, the case reaffirms how specific they need to be. This applies to all forms of CLEUD applications including those which seek confirmation of development without compliance with conditions following breach for the requisite time period. The case reminds Councils that they can refuse to determine any Certificate application that is too vague and not specific enough in the description of development that it seeks confirmation is lawful.