The basics #11 - WFH
You are cordially invited to a tragi-comedy in 3 short acts - “why the English Planning system isn’t working so well” (the title may need tweaking, to be fair). You want a synopsis before you book seats? Righto:
Act 1: Bojo gives a conference speech which announces no new planning policies. Buuuuut it’s reported by the Telegraph as if he’d announced some sort of embargo on any new homes “on green fields”. Which would’ve been a… bold policy. But in fact, it just wasn’t a policy at all.
Act 2: Several authorities stop their plan-making exercises because of this exciting non-announcement of a non-policy.
Act 3: And then. You guessed it. The department now confirmed that Boris wasn’t announcing anything.
Well done to all involved.
In other news:
Our new leader Michael Gove has appeared before the (excellent) Housing, Communities and Local Government Committee and gave some interesting answers to some interesting questions, some of which are about the future of planning reform: here. In particular, if you haven’t yet heard about “Street Votes”, I’d get reading. Start here. Because apparently Mr Gove “loves the idea”.
And, from the wild world of planning appeals, you may’ve heard about a bold Foster + Co companion piece for the Gherkin in the heart of the City of London known as the “Tulip” which would’ve transformed the capital’s skyline.
You like it?
Well, the Department doesn’t.
The appeal was dismissed and permission refused. Chris Pincher’s team called it "a muddle of architectural ideas" being "neither a continuous flowing object, as with the Gherkin, nor a structure of three distinct parts, as with the Monument". 😬. And lots of interesting commentary also on the setting of the Tower of London.
But let’s put all the drama to one side. Shall we? Mute the hullabaloo. Just for two minutes. Pour yourself a cuppa. And join me for some old-fashioned planoraks basics.
Right. Working from home. Ever tried it? I thought so. WFH is, of course, a game we have all learned to play since last year.
Why, you might be thinking, might it be of interest to planoraks. Here’s why:
Most of live in (what planoraks poetically refer to as) dwellinghouses.
Now, normally, changing the use of a dwellinghouse to e.g. an office, a shop or whatever is going to be a material change of use requiring planning consent.
Buuuuuuut - using a dwellinghouse for “any purpose incidental to the enjoyment of the dwellinghouse as such” is excluded from the definition of development. No development = no need for permission: Section 55(2)(d) of the Town and Country Planning Act 1990.
But what does “incidental” mean? In the Harrods case, the Court of Appeal upheld a decision that the use of Harrods’ roof for a heliport (first world problems, eh?) was not “reasonably incidental” to its retail use. The right approach, said the court, was to see what shops in general have as reasonably incidental activities. The question is what activities legitimately form part of the shop use. The crucial test, one way or the other, is whether you’re changing the character of the use of the land.
OK. So what kind of things are “incidental” to your enjoyment of your home? Sleeping. Eating. Typing out your emails. Indoor archery, apparently, is also ok: see the Emin case from 1989 (too old for Bailii). But not, it turns out, keeping 44 dogs: see Wallington. 6 would’ve been ok. 44 was over the top. Nor - this may surprise some of you - was it kosher to keep a life size wooden replica of a Spitfire in a small suburban garden: see a case called Harwood v Runnymede BC from 1994, again too old for Bailii.
In the end, whether your zany home-life activities involve a change of use requiring planning consent comes down to an evaluative and objective question for the judgment of the planning authority.
How does home-working fit into all of this? Readers of the Simonicity blog (and that should really be all of you) will have seen Simon’s excellent summary of the recent Sage case. In a nutshell:
Mr Sage lives in a semi-detached in Beckenham. He has a wooden shed in the garden with gym equipment. He started using it for his personal training business. He asked the London Borough of Bromley to certify the lawfulness of that use.
But the Council refused his certificate application. Mr Sage appealed against that refusal. The Inspector dismissed the appeal. And Mr Sage then had a go at overturning that dismissal in the High Court.
He lost.
The reasons he lost were that the Inspector found the scale of personal training business (around 30 sessions a week) was not incidental to the enjoyment of his home. That was, in particular, because of the comings and goings arising from 4-5 clients a day causing disturbance to neighbours, which would be exacerbated by the tight knit design of the homes and the need for callers to use a narrow access to a small rear garden, clearly visible from other properties. The judge upheld those findings.
In consequence, there was a mixed use. And a mixed use requires planning permission.
The court drew a distinction between working from home on your own, and working from home when customers are coming over. In the latter case, if the nature, intensity and environmental impacts of the use are sufficient to change its residential character… well, watch out!
And be wary of the Government’s Planning Practice Guidance on this issue (para 14 here) which, as the Court explained, misses the mark big time and needs an urgent re-write.
So take care out there, folks. Particularly before you start holding personal training sessions in your garden without planning permission. Stay well. And, whatever the Daily Telegraph says, #keeponplanning.
