Incidentally, about the other “Sage”…
Sage v SSHLCG [2021] EWHC 2885
Sage v SSETR [2003] UKHL 22 is an important case about the meaning of substantial completion when looking at immunity of operational development. But this article is about another Sage.
At the end of last year, the High Court handed down a judgment in the case of Sage v SSHLCG [2021] EWHC 2885 which has implications for the way in which claims of incidental use are considered.
Mr Sage is a personal trainer who trains his clients from a fairly large outbuilding at the bottom of his garden, accessed by an alleyway shared with his neighbour. Evidence suggested that clients visited his property up to 33 times a week between 6am and 9.30pm.
He applied for an LDC for this use. His application incorrectly described it as D2 (assembly and leisure) though it was considered in terms of whether it was incidental use of a curtilage building and therefore not development due to s55(2)(d) TCPA 1990. The application was rejected on the basis that the use was not incidental. An appeal was refused, the inspector holding that “having regard to the number, frequency and duration of the training sessions” which were “likely to have caused a noticeable increase in general noise and disturbance in and around the property”, “the studio use is materially different in character to use as a home gym by occupiers of the dwelling and it has appreciably changed the manner in which the property is being used”. The inspector concluded that the property was now in “a mixed use as a dwelling and personal training studio”.
A second LDC application sought to address the noise and disturbance. The application this time described the use as C3 and said that the hours of use had been restricted to cut down the noise and disturbance so that there was no material change of use (MCOU). Neighbours had mixed views but many had said that they were not disturbed. But the certificate was again refused and appealed.
The second inspector considered whether there was a MCOU. While planning merits were not relevant (as it was an LDC application), she considered that comings and goings would create disturbance for neighbours. The scale of the training business was such that it was not incidental to the enjoyment of the dwellinghouse and the use was mixed, which was a MCOU.
Amongst other grounds of appeal, the appellant was aggrieved that the inspector seemed to have taken planning merit points into account in determining whether use was incidental, despite the fact that planning merits have no part in an LDC application. Reference was made to the Planning Practice Guidance on LDCs which suggests that
"Planning permission will not normally be required to home work or run a business from home, provided that a dwelling house remains a private residence first and business second (or in planning terms, provided that a business use does not result in a material change of use of a property so that it is no longer a single dwelling house). A local planning authority is responsible for deciding whether planning permission is required and will determine this on the basis of individual facts. Issues which they may consider include whether home working or a business leads to noticeable increases in traffic, disturbance to neighbours, abnormal noise or smells or the need for any major structural changes or major renovations."
Mr Sage lost his appeal. The judge found there was no mistake or irrationality in the inspector’s decision. He also commented that Mr Sage had been shown a great deal of “indulgence” in the way that his applications, which were “wholly inadequate” and deficient, had nevertheless been given full consideration by the council and by both inspectors. He commented that he would have rejected the appeal simply on the basis that it would have been right for the council and the inspector to refuse the LDC simply because the application was inadequate.
The importance of the case is in the judge’s comments on the PPG paragraph quoted above. The paragraph, he said, gave the impression that, without noise, disturbance, traffic and smells (“environmental impacts”), there would not be a change of use. This was incorrect as the relevant test was whether there was a change in the character of the use. Environmental impacts might evidence such a change in character but they were not the cause of the change. There could be a change in the character of the use without any such environmental impacts. After all, there may well be little real difference, in terms of environmental impacts, between ancillary and separate use of the training studio. But the character was nevertheless changed because one was a residential use and the other created a mixed residential and commercial use. A secondary use will result, said the court, in a change of character unless it is merely ancillary/incidental.
The impact of this case is difficult to know. The comments were aimed at the guidance rather than the parties’ case and, to that extent, obiter meaning that they do not automatically have precedent value. The classic statement of changes of use is that anything which affects the character of the use is a change of use but only where there are planning effects will there be a material change of use and therefore development. The guidance wrongly conflated the two and the judge’s comments could be said to seek simply to emphasise the first limb in the test (change in use). But the decision seems to diminish the role of the second limb (materiality), at least in terms of incidental uses of dwellinghouses and their curtilage buildings. It almost suggests that a change in the character of a use is material in itself. The case will make it more difficult for homeowners to allege that their home business is incidental simply because it is in their home. But it may also make it easier for LPAs to enforce for intensification if the focus is on the character of the use rather than the materiality of its effects.
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