Appeal 3266441

The appeal is allowed and attached to this decision is a certificate of lawful use or development describing the proposed operation which is considered to be lawful.

I consider that this appeal can be determined without the need for a physical site visit given the written submissions and nature of the appeal. Neither the Council nor the appellant have raised objections to the appeal proceeding on this basis.

An application for a full award of costs was made by the appellant against the Council. This application is the subject of a separate decision.

The main issue is whether the Council’s refusal to issue a certificate of lawfulness was well-founded. The Council’s reason for refusal was that ‘The proposal would not fall within the provisions of Schedule 2, Part 1, Class E of the Town and Country Planning (General Permitted Development) Order 2015 (‘the GPDO’). It is therefore not lawful and planning permission would be required.’

In order to be successful in this appeal the appellant must show that the development would fall within the provisions of Schedule 2, Part 1, Class E of the GPDO in that the proposed outbuilding would be within the curtilage of the dwellinghouse at [site address] (‘No.5’) and for a purpose incidental to the enjoyment of that dwellinghouse. The Council accepts that the proposed development is within the curtilage of No.5 and would not exceed the limitations set out in E.1 (in terms of the height, location and proportion of the curtilage covered and other limitations) and I do not need to consider these further.

The Council’s reason for refusal was predicated on the size, scale and layout of the proposed development and they calculated the footprint at around 41sqm (which is not contested by the Appellant although they argue that the internal floorspace is less). The Council concluded that the scale of the proposed outbuilding would mean that the use could not be considered as incidental to the enjoyment of the dwellinghouse when compared to the original footprint of the ground floor. The application for the proposed development included plans that showed its intended configuration as a gym and attached shower and toilet. The description on the appeal and the statement submitted by the appellant describes the outbuilding for use incidental as a gym and home office/storage and the plans submitted during the appeal indicate an additional internal wall to partition the original gym area to provide two separate rooms. The proposed size, scale and external treatments have not changed since the application stage. The Council has not raised any objection to the internal plans being changed in this way.

An essential feature of an incidental use is that it should have a functional relationship with the primary use (in this case the residential use of the dwellinghouse) and that the relationship is one that is normally found. Caselaw holds that this assessment will be a matter of fact and degree in each instance, but the use cannot be for a primary residential purpose, and that regard should be had to not only the use but also the nature and scale of that use.

Whilst the floor area in this case is fairly large in proportion to both the original and existing ground floor areas of No.5, it is less so when considered in the context of the overall size the dwellinghouse (which also includes the first floor). A gym and office use can be associated with residential use and the attached shower room and toilet alone is not enough to show a primary residential use of the outbuilding (which would prevent it from being an ancillary use). I am therefore satisfied on balance that the proposed building is genuinely and reasonably required to accommodate these uses which are for purposes incidental to the enjoyment of the dwellinghouse, and not excessive in scale in relation to it.

For the reasons given above I conclude, on the evidence now available, that the Council’s refusal to grant a certificate of lawful use or development in respect of the erection of a rear outbuilding for use incidental to the dwellinghouse as a gym and home office/storage was not well-founded and that the appeal should succeed. I will exercise the powers transferred to me under section 195(2) of the 1990 Act as amended.