For most professionals, working from home does not risk falling foul of planning regulations, but it’s not quite so straightforward if the business involves visiting customers or generates environmental emissions (e.g. noise, odours) which could have an effect on neighbouring amenity.
Planning Act regulation of working from home
The general rule is that planning permission is required for any act of ‘development’ which includes both building, engineering and mining operations and material changes of use of buildings or land. Certain matters are excluded from this broad definition.
Section 55(2)(d) of the Town and Country Planning Act 1990 states that “the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such” does not constitute development.
In any given case, the prescribed legal method of determining whether any use is incidental, and therefore does not require planning permission, is an application for a certificate of lawful development.
Sage v SSHLGC
In the recent case of Sage v SSHLGC  EWHC 2885 (Admin), the court considered whether an existing shed within the garden of a house could be used by the owner for his business which involved one-to-one fitness training sessions for multiple visiting clients per week. The owner applied for a certificate of lawful use, which the local authority refused, and the resulting appeal was dismissed by an inspector. That decision was subsequently challenged in the court.
What makes this case especially interesting is that this change of use did not give rise to any noise impacts, as verified by the applicant’s expert acoustic report.
In Sage, the owner argued that this commercial business use was indistinguishable from an ordinary residential use in terms of the associated ‘environmental’ impacts (noise, disturbance, etc.). Several of the immediate neighbours wrote letters in support of the application, claiming not to be disturbed.
Nevertheless, the court ruled that the ‘environmental’ impacts were not the only relevant factor which had to be considered. This was merely a component in relation to the key legal question of deciding whether there had been a definitive change in the character of the use of the land. The inspector had correctly decided that having regard to factors such as the size and location of the plot, the narrow accessway shared with the adjacent property, and the number of daily ‘comings and goings’, the use was more than ‘incidental’. The Judge went even further by ruling that it would have been legally irrational for the appeal inspector to come to any other conclusion.
For the applicant in Sage, the material change of use was therefore unauthorised and planning permission will need to be obtained. There may be a decent chance of success given the low level of impact, but this also calls into question the applicant’s strategy of making two applications for a lawful development certificate (both of which were refused and appealed), followed by a failed trip to the court.
Lessons from Sage
- Seek clear professional advice
In giving judgment the Judge described the content of the applications as “muddled”, and so the first obvious lesson for would-be applicants is to seek out good professional advice, to devise the right strategy and to prepare the application properly. This might seem obvious, but there are many schemes where excessive time has been wasted on a series of applications without any clear direction.
- Uses which are compatible with a residential environment may not be ‘incidental’
The issue of what kind of use might be considered ‘incidental’ to a dwelling house does not depend solely on an assessment of environmental effects. It will be relevant to consider where has been a material change in the character of the use of the land by reference to factors such as site location, plot layout, and general setting, as well as the scale and frequency of the use.This requires a subtle difference in approach which might be lost on some planning authorities. There will be a small window of opportunity for third parties (e.g. affected neighbours) to apply for judicial review seeking to quash ‘bad’ decisions in cases where a local authority has issued a certificate of lawfulness after having followed the wrong legal test.
How might this affect future decision-making?
The Sage case gives encouragement to planning authorities to require planning applications rather more frequently instead of treating such uses as falling outside the ordinary scope of planning controls for ‘development’.
Business owners who run their business at home should therefore be wary that they could be liable to enforcement action unless the requisite planning permission is obtained, and ultimately where ‘significant’ amenity impacts arise, such consent may not be forthcoming.
If you run a business from home and wish to discuss any of the issues raised in this article, please contact Ben Garbett.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.