Development under Class E of the Town and Country Planning (General Permitted Development) (England) Order 2015
This firm’s article ‘When is an annex not an annex? Part 1, looked at whether the conversion of an existing building within a residential curtilage, such as a garage, to a ‘granny annex’ required planning permission.
The following considers what can and can’t be built within the curtilage of an existing house (e.g. within the garden) relying on the permitted development rights contained in Schedule 2, Part 1, Class E of the Town and Country Planning (General Permitted Development) (England) Order 2015 (the GPDO). Unfortunately, the answer is not completely straight forward.
Class E of the GPDO and Judicial Guidance
- Class E authorises: “[t]he provision within the curtilage of the dwellinghouse of:
any building or enclosure, swimming or other pool required for a purpose incidental to the enjoyment of the dwellinghouse as such …”.
Paragraphs E1, E2 and E3[1] impose a number of restrictions on this Class E right including where the proposed dwelling “relates to a dwelling” (Paragraph E1(i)).
Judicial Approach to Class E
The Class E permitted development rights have been the subject of numerous court decisions, from which a number of principles can be derived.
Firstly and importantly, Class E authorises only the construction of a building (not its material change of use), and only if the building is required for a purpose that is ‘incidental’ to the enjoyment of the host residence as a dwelling. Therefore, the key question in assessing any proposal, is likely to be whether or not the use of the proposed building is indeed ‘incidental’ to the enjoyment of the host dwelling.
Whether or not a proposed use is ‘incidental’ is not solely dependent on the intentions and assurances of the developing householder. It is fundamentally a ‘question of fact and degree’ to be determined by the planning decision maker adopting an ‘objective’ approach:
“The fact that such a building has to be required for a purpose associated with the enjoyment of a dwelling-house cannot rest solely on the unrestrained whim of him who dwells there but connotes some sense of reasonableness in all the circumstances of the particular case” (Emin v Secretary of State for the Environment (1989) 58 P. & C.R. 416)[2].
A similar point is implicit in the judge’s comment in Rambridge v Secretary of State for the Environment (1997) 74 P. & C.R. 126 (1996) that ‘incidental’ in Class E carries the same meaning as in section 55(2)(d) of the Town and Country Planning Act 1990. In brief terms, to fall within Class E, the proposed use must be “reasonably incidental to the normal use of a dwelling as a dwelling”[3].
By way of example, if the householder’s hobby is rescuing and accommodating a large number of stray dogs (say, 40 dogs), and they erect a large set of kennels in their garden to accommodate that large number of dogs, that is unlikely to be regarded as reasonably incidental and is therefore unlikely to be within Class E (see the case of Wallington v Secretary of State for Wales (1991) [4] ).
In particular, the cases suggest that facilities that are commonly found in dwellings (such as bedrooms and sitting rooms) are ‘primary’ uses. As such, they would normally fall outside the scope of Class E. In the case of Peche D’Or Investments v Secretary of State for the Environment [1996] J.P.L[5], the judge explained that “additions to the normal basic domestic living accommodation of a dwelling house, such as a bedroom, would not be expected to be regarded as being “incidental to the enjoyment of a dwelling house as such” because they were generally an integral part of the ordinary residential use as a dwelling house”. The same point is made more succinctly in the case of Rambridge v Secretary of State for the Environment (1997) 74 P. & C.R. 126 (1996): “Incidental” is the ‘obverse’—to use Mr Rambridge’s word, though I do not like it much in this context—to ‘primary’”.
However, given the fundamental and overarching legal principle that whether or not a proposed development is indeed ‘incidental’ is a question of ‘fact and degree’ to be decided on the basis of the facts in each particular case, the judicial suggestion that “additions to the normal basic domestic living accommodation of a dwelling house … would not be expected to be regarded as incidental”, is better treated as a rule of thumb. As the judge in Peche D’Or went on to explain: “… in each case it had to remain a matter of fact and degree as to whether that was or was not the case. There was no warrant in the legislation for exclusion of a particular specified type of room or building as a matter of law”.
The final point to bear in mind, is that ‘incidental’ “connotes an element of subordination in land use terms in relation to the enjoyment of the dwelling-house itself” (Emin v Secretary of State for the Environment (1989) 58 P. & C.R. 416). As a result, the size and scale of the building can also be a relevant consideration. As the judge in Emin explained: “the scale of those activities is obviously an important matter because there must be a prospect that the nature and scale of such activities could go beyond a purpose merely incidental to the enjoyment of the dwelling house as such and constitute something greater than a requirement related solely to that purpose. In that context, the physical sizes of buildings could be a relevant consideration in that they might represent some indicia as to the nature and scale of the activities”.
What residential facilities can be constructed using Part E permitted development rights?
In light of the above, the obvious question is: how wide is the scope of Class E structures? Clearly (and always subject to complying with the other restrictions in Paragraphs E1 and E2), Class E encompasses swimming pools, garden sheds, garages, greenhouses, and according to the case law, can also encompass separate recreational rooms, music rooms, garden rooms, garden gyms and even internal archery ranges.
However, bearing in mind that “[t]here [is] no warrant in the legislation for exclusion of a particular specified type of room or building as a matter of law” (Peche D’Or) and that each case needs to be decided on its own facts, there will inevitably be cases where space which normally forms part of a normal house can be delivered as a separate structure under Class E. For example, for most of the post-war period, a garage has been part of the normal design of a house. However, it is not uncommon for a person who collects classic cars (or a hobby mechanic), to construct additional garage space under Class E in their gardens. I have yet to come across a case where the LPA has argued that additional garage space falls outside the scope of Class E as a primary use[6]. That being the case, it is not inconceivable that similar arguments could be made for separate structures accommodating ‘incidental’ cooking facilities (e.g. to host more sophisticated garden barbeques), incidental study space, and even incidental garden sitting rooms. The key there may be whether the scale and/or form of the space takes it outside the scope of Class E.
Unfortunately, a granny annex is unlikely to fall within the scope of Class E even though it would be ancillary to the main dwelling. Depending on the design and scale of the proposed annex, a self-contained annex would “relate to a dwelling”, and therefore be excluded from Class E by Paragraph E1(i). Even where the development comprised (say) just a bed-sitting room and the occupant relied for all other facilities on the main house, it is likely to fall outside the scope of the Class E rights, because a space designed to be regularly slept in is likely to be regarded as a wholly primary use (i.e. an integral part of a normal dwelling), and hence by definition, not incidental and therefore outside the scope of Class E.
However, always bear in mind that where there is a pre-existing building in a residential garden constructed either pursuant to an express planning permission, or properly constructed under Class E (i.e. legitimately constructed for an incidental purpose and otherwise complying with the restrictions in Paragraphs E1 – E3)), then for the reasons explained in this firm’s article ‘When is an annex not an annex: Part 1’, it may be possible to convert it to a granny annex without a further planning permission.
Conclusion
Drawing the threads together, Class E is not an open-ended licence for a householder to put up any purportedly ‘incidental’ structure in their garden (subject to complying in particular with the size and other restrictions in paragraphs E1 – E3). Whether or not a structure is ‘incidental’ for the purposes of Class E is a question of ‘fact and degree’ to be decided on the facts of each particular case. While the householder’s intentions are doubtless relevant, they are by no means determinative. What can be said with certainty, is that (subject always to the restrictions in Paragraphs E1-E3) clearly incidental structures such as garden sheds, greenhouses and swimming pools are normally permitted by Class E, while any building that would itself qualify as a residence is not. Between those two extremes are a range of structures (such as garden rooms and garden offices/studies) which depending on the specific facts of the case, may or may not fall within Class E.
Our planning team are experienced in advising on this area of planning law and preparing planning applications and certificates of lawful established use. Should you have a similar issue, please get in touch with our planning team.
[1] Other relevant restrictions include in particular height restrictions and a requirement that the total area of ground covered by buildings (Etc) “within the curtilage (other than the original dwellinghouse) [does not] exceed 50% of the total area of the curtilage (excluding the ground area of the original dwellinghouse)”. These restrictions are not directly relevant to the main issues in this article, and are therefore not discussed further. However, any person considering relying on Class E permitted development rights should first fully appraise themselves of all the restrictions in Class E.
[2] Emin concerned whether a substantial indoor archery facility fell within the scope of Class E.
[3] See discussion of s. 55(2)(d) in this firm’s article ‘‘’Sage’ guidance on whether a material change of use requires planning permission”
[4] 62 P. & C.R. (1990).
[5] Peche D’Or concerned a single storey, four room development in the garden to a country house. The development comprised a study, music room, bathroom and entrance hall, and was described in the case report as of a “conventional domestic pattern”. In that case, a planning inspector considered that as a matter of principle, a ‘study’ would normally form part of the main domestic accommodation, and therefore fell outside of Class E. As a statement of law, this was held to be too prescriptive
[6] This may be because it is treated as ‘recreational’ space, i.e. space designed to accommodate a reasonable hobby activity.
