The above is a question many people may be asking themselves at the moment, as the Government orders work from home if you can to help suppress the latest wave of COVID-19 from spreading. The law says planning permission is required to change the use of a building from a dwelling to business premises. This raises the point of when would it be considered that such a change of use has occurred, thereby requiring planning permission.
Section 55(2)(d) of the TCPA 1990 provides that 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 is not taken for the purposes of the TCPA 1990 to involve the development of the land and does not require planning permission.
Government planning policy guidance
Government planning policy guidance on changes of use advises the public that:
“Planning permission is not normally required to home-work or to run a business from home, provided that a dwelling house remains a private residence first and business second”.
The guidance goes on to say that this is only the case if, in planning terms, the business use does not result in a material change of use of the property so that the home is no longer a single dwelling house.
Secondary use will involve a material change of use of the dwelling house to mixed or composite use unless it is so secondary that it is merely ancillary to the residential use as a dwelling house such that there is still just that one use – residential. Alternatively, in the case of a dwelling house, the purpose at issue is reasonably incidental to the enjoyment of the dwelling house as such. This is a crucial point that the guidance blurs.
The point about secondary use was illustrated in the recently reported case, above.
Mr Sage had been using a timber outbuilding in his garden, partly as a garden shed, and partly as a gym. His gym equipment included a treadmill, cross-trainer, weights, balls, bench, and punch bag. His gym was used for his own personal training; but since 2016, the gym was also used for his business as a personal trainer. He applied to the Council under section 191 of the Town and Country Planning Act 1990 for a Certificate of Lawful Use for his business use of the shed (that is, for a certificate that it is lawful to use the property for the purpose to which it is being put) but he was twice refused by the local authority. He, therefore, appealed to the Secretary of State, but his appeal was rejected. He, therefore, appealed against that rejection to the High Court under section 288 of the TCPA 1990. However, that appeal was also unsuccessful.
The Judge held that the planning inspector, properly directed by lawful guidance…
“could not rationally have concluded, as a matter of fact, and degree, that the six-day a week use, with 30 or so sessions, with the hours envisaged on this property in a tight-knit residential area, was incidental or ancillary to the use of a dwelling house as a dwelling house.”
The Judge in the case thought it was appropriate to take into account the “visual disturbance” of the activity being carried on as well as the noise disturbance.
Therefore, the starting point in answering the question in the title above is:
- Planning permission is not normally required to work from home or to run a business from home; but
- If, overall, the business use, cannot be said to be ‘ancillary’ to the residential use and results in the property no longer being a single dwelling house but converts to mixed or composite use, then planning permission is required.
How can Nelsons help?
At Nelsons, our expert Commercial Property team has extensive experience in a wide area of legal matters.
If you or your business require assistance with a commercial property matter or have any queries regarding the above article, please get in touch with Martin Jinks (Consultant, Solicitor, and Notary Public), or Matthew Clarke (Trainee Solicitor) who will be happy to discuss it with you.Contact us