When first decided, the 2021 case of Sage v Secretary of State for Housing, Local Government and Communities [2021][1] raised a number of eyebrows in the planning world. However, the decision is clearly correct, and provides helpful guidance in deciding which changes of use amount to development, and therefore require permission, and which do not.
Legal background
It is worth starting with the basic principles. In England and Wales, the development of land requires planning permission (Town and Country Planning Act 1990 (the Act), s. 57). The statutory definition of ‘Development’ includes a material change of use (Act. s. 55). However, this is subject to two important exceptions:
- subsection 55(2)(d) of the Act expressly excludes from the definition of ‘Development’:
“… the use of any buildings or other land within the curtilage of a dwelling house for any purpose incidental to the enjoyment of the dwelling house as such”.
- a use which is ancillary to the main use of land does not constitute a material change of use (Williams v Minister of Housing and Local Government (1967) 18 P & CR 396).
In light of these two exceptions, in deciding whether or not an alleged material change of use requires planning permission, the decision maker needs to answer two questions: (1) has a material change of use taken place, and (2) if so, is that change of use incidental or ancillary to the primary use of the land (Wallington v Secretary of State for Wales (1991) 62 P.& C.R. (1990))? It is only if the answer to both these questions is ‘yes’, that planning permission is required.
Has there been a material change of use?
Determining whether there has been a material change of use is a question of fact and degree, and the focus of the investigation must be on the character of the use (East Barnet UDC v British Transport Commission [1962] 2 QB 484).
In many cases, the change in character is obvious: e.g. operating a corner shop from the front room of your house (a retail use) is clearly very different in character from a normal residential use of the same room (e.g. watching television, relaxing or entertaining friends).
However, some changes of use are less obvious. For example, what is the difference in character between use of a house by an individual or family as their long-term home, and letting out the same property to holiday guests? Surely, both uses are residential? In these borderline cases, the planning decision maker assesses whether there is a material change in the planning impacts of the use, in particular on neighbouring properties (Devonshire CC v Allens Caravans (Estates) Ltd (1962) 14 P & CR).
By way of example, the case of Sheila Moore v Secretary of State for Communities and Local Government [2012] EWCA Civ 1202, (a case which concerned the use of a dwelling house for commercial holiday lets) is often quoted, particularly because of the Judge’s comment that “Neither of the two extreme propositions – that using a dwellinghouse for commercial holiday lettings will always amount to a material change of use, or that use of a dwellinghouse for commercial holiday lettings can never amount to a change of use – is correct”.
However, what is often overlooked in that case, is the impacts of the traffic associated with a regular pattern of arrivals and departures with associated traffic, and the size of the groups of guests and their potential lack of consideration for neighbours were all materially different planning impacts from a more normal dwellinghouse use, which together indicated a material change of use requiring planning permission.
Is the change of use incidental or ancillary to the primary use of the land?
Having established that there has been a material change of use, the next question is whether that change of use is ‘incidental’ or ‘ancillary’ to the primary use of the land.
The important point to note here is that irrespective of whether the question is raised in respect of a dwelling under s. 55(2)(d) or in respect of an ancillary use of some other property, this is an ‘objective’ test, i.e.:
- to fall within s. 55(2)(d), the activity needs to be reasonably incidental to a normal use of the dwelling house as a dwelling house.
- In respect of non-domestic properties, an ancillary use needs to be incidental not just to the particular property in question, but reasonably incidental to the normal use of the general type of property.
By way of example, most people will agree that keeping a couple of cats or dogs at home is relatively normal. However, in the case of Wallington v Secretary of State for Wales (1991) [2] the Court upheld an enforcement appeal inspector’s finding that keeping 40 dogs at home as pets (with related noise impacts) was not only a material change of use but also not a normal use of a dwellinghouse. It was therefore not ancillary to the residential use and required planning permission.
As the Judge commented at first instance in the case of Wallington, in s. 52(2)(d) cases there is risk of “confus[ing] the enjoyment of a dwelling house as such and the enjoyment of the occupier … what is under consideration is whether it is incidental to the enjoyment of the dwelling house as such. The occupier may well be enjoying him or herself in some way which is not related to the dwelling itself as a dwelling”.
As regards non-domestic properties, a similar point was made by Schiemann LJ in the case of Harrods Ltd v Secretary of State for the Environment, Transport and the Regions (a case about whether landing a helicopter on the roof of Harrods as the preferred mode of transport of its owner was ancillary to the running of the shop): “It is not appropriate to concentrate on what is incidental to this particular shop, given the way it is run, and given its needs. The right approach is to see what shops in general have as reasonably incidental activities”.
The case of Sage [2021]
Sage is helpful as a practical reminder of the above principles and of the fact that what is normal at any point in time is liable to change.
The case was a challenge to an Inspector’s decision that operating a commercial gym from a shed in a homeowner’s garden constituted a material change of use requiring permission, notwithstanding that there was no evidence of adverse impacts.
In upholding the Inspector’s decision, Ouseley J stressed that:
“ … a material change of use can be made without any adverse environmental impact at all. Treating environmental impact as the seemingly crucial issue for the judgment as to whether a material change of use has occurred, or a purpose is reasonably incidental is not consistent with clearly established law. The crucial test is whether there has been change in the character of the use”.
Aside from the obvious point that Ouseley J is making (i.e. that in answering question (1) above, some changes in the character of a use are so obvious that there is no need to consider further any related planning impacts from the change), it is also worth noting that Ouseley J considers environmental impacts to be relevant in deciding whether a material change of use is reasonably incidental to the primary use (i.e. environmental impacts may be relevant to both questions (1) and (2) as outlined at the start of this article).
Ouseley J also touches briefly on a variety of ‘services’ which are commonly offered from a person’s home, such as private tuition (including in music), childminding and a range of medical services. Particularly where offered on a commercial basis, these are material changes of use, but equally uses which since time immemorial have been offered from people’s homes. Just take as one example Sigmund Freud’s house in Hampstead, where patients came to consult him. Doubtless in deciding whether such uses are reasonably ancillary on a case-by-case basis, a decision maker will need to consider the extent of any related environmental impacts and the extent to which those fall outside the norm.
Finally, Ouseley J noted that “what is normal or reasonably incidental now may have shifted with changes in work habits as a result of Covid”. This is a welcome reminder that what was unusual yesterday may become the norm today or tomorrow.
Deciding whether or not a change of use is either material or reasonably incidental to the normal main use of a property is notoriously difficult. Sage does not create any new law. However, it is a helpful reminder that not all material changes of use will have obvious amenity impacts, that environmental impacts can be relevant in deciding whether a material change of use is ancillary to the main use of the property, and that what is ‘normal’ will inevitably change over time.
[1] EWHC 2885 (Admin),
[2] 62 P. & C.R. (1990).
