Material change of use; working at home; use of buildings and land in the curtilage of a dwelling which is incidental to the use of a dwellinghouse (section 55(2)(d) TCPA exception

Sage v SSHCLG and LB Bromley [2021] EWHC 2885 –

The case involved a section 288 TCPA challenge over an inspector’s dismissal of an appeal against the refusal of LB Bromley to grant a lawful development certificate.  The application was for an existing use certificate  and the Claimant argued that the use of a garden shed for personal training/gym uses was excluded from the definition of development pursuant to section 55(2)(d) TCPA as the garden shed was situated in the curtilage of the dwelling house and the PT/gym use was incidental to the dwelling house use.   The challenge was unsuccessful and the court  also considered and criticised national guidance on the the planning use implications of working from home.  

Case commentary

Section 55 TCPA defines development as ‘operational development’ and ‘material change of use’ and then  sets out a list of uses and operations which are excluded from the definition of development.  Both determining whether a change in use is material and assessing whether or not it comes within a certain exclusion can be difficult and often plagues smaller businesses, where the business owner may not have the resources to fully engage the planning system at the right time.  ,  

At the start of the judgement, from paragraph 6, there is an incredibly complicated analysis about what comes first in deciding whether a use falls within the exclusion in sub-section 55(2)(d) – whether there has been a material change of use or whether it falls within the said exclusion.  This is the order which the judge chooses, which makes sense as if there is no ‘material’ change of use, the change would not come under planning control.  The judge however acknowledges that these issues are often approached as if they are interchangeable.

The case also turned to and criticised the NPPG’s advice to local authorities for  assessing whether running a business from a dwelling house amounts to a material change of use.  The court was of the view that the advice had the potential to mislead decision-makers into thinking that they can simply jump to assessing the environmental impact of operating the business from the home without asking themselves whether a material change has taken place.  

Going off on a slight tangent here, the analysis in the judgment may be relevant to assessing Air BnBs where the appeal decisions focus on such environmental impacts of the Air BnB use such as vehicular and other comings and goings, noise and disturbance as a way of deciding whether a material change of use has taken place, whether by intensification or otherwise.   This is because of the difficulty in detecting any difference, in planning terms, from a house and an air bnb, where the point is to holiday in a ‘home away from home’.  Perhaps the relevant question is, given the pattern of use of the air bnb, whether the use has changed from a dwelling house (Use Class C3) to a hotel or guesthouse (Use Class C1).

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