Appeal 6000094

Class E of the GPDO grants planning permission for any building or enclosure, swimming or other pool, within the curtilage of a dwelling for purposes incidental to the enjoyment of the dwelling as such. This is subject to certain conditions and limitations.

Notwithstanding, that main parties dispute that the height of the building complies with the restrictions outlined at E.1(e)(iii) of the GPDO, to benefit from the PDR the appeal building must be incidental to the enjoyment of the host dwelling. In determining whether this is the case, I have had regard to the findings of previously established case law2.

No. [site address] is a relatively modest two-storey, semi-detached dwelling. The appeal building’s use as a gym alongside a home office and/or playroom are capable of being incidental to the enjoyment of the main dwellinghouse. However, even accounting for the need to provide space for gym equipment and circulation, office furniture, or children’s play space, the extent of floorspace for these uses within the appeal building is considerable. Additionally, the building has also been completed with two separate bathrooms.

Based on my observations on site, the scale and nature of the uses of the appeal building, in the context of the rather modest host property, go beyond what could reasonably be considered incidental to the enjoyment of the host dwelling. Meanwhile, no robust evidence has been provided to reach an alternative view.

The appeal building has therefore not been demonstrated to be incidental to the enjoyment of the dwellinghouse as defined under Schedule 2, Part 1, Class E of the GPDO. As such, it has also not been suitably established that the appeal building is lawful. Accordingly, planning permission for its change of use should not be granted.

A lack of enforcement action against the existing building, or advice received from an officer within the local planning authority, does not mean that the existing appeal building is lawful development.

The appellant highlights that the development is required to enable suitable accommodation to be provided to an elderly family member that requires care, whilst still providing a degree of independence. Be that as it may, it does not overcome that based on the evidence before me, procedurally, it would be inappropriate to allow the change of use of the building.

Likewise, irrespective as to whether the proposed granny annex use would be acceptable (having regard to the effects of the development, its compliance with local development plan policies, and the relevance of other decisions for such 2 Harrods v SSETR [2002] JPL 1258; [name] v SSE [1996] JPL 311; Rambridge v SSE & [name] (QBD 22.11.96 CO-593-96); and Emin v SSE [1989] JPL 909 uses), it remains procedurally inappropriate to allow the change of use of a building that has not been demonstrated to be lawful.

To support its case, the Council provided a copy of a decision in relation to an appeal against a refusal to grant a certificate of lawful use or development (LDC) for a garden outbuilding. However, I have very limited background details of that scheme, whilst from the evidence before me there appear to be some contextual differences with the proposal before me. As such, that previous decision has not been deterministic in my above findings.

For the reasons given above, the appeal is dismissed.