Thinking of starting a home business – do you need planning permission?

The pandemic has led to an increased interest in people starting a home business. Whether that is an ecommerce business or a business with visiting clients, the question should be asked if any of these  first require planning permission? A recent case in the Planning Court has helpfully clarified the legal test and material considerations that determine when planning permission is required for a home business.

The case of Sage v Secretary of State for Housing, Local Government and Communities [2021] EWHC 2885 (Admin) concerned a claimant who operated a personal training business at his home in part of an outbuilding in the garden. The outbuilding contained gym equipment including a treadmill, cross-trainer, weights, balls, bench, and punch bag. The gym was used by Mr Sage and his family and friends as well as paying clients. The personal training business operated six days a week, Tuesday to Sunday, with up to eight people a day on weekdays, up to four on Saturdays and two on Sundays. Clients could arrive as early as 6am and stay as late as 9.30pm on most weekdays.

Mr Sage contended that his personal training business was incidental to his residential use of the house and therefore did not require planning permission. He had applied for a lawful development certificate to confirm his home business was lawful. The council, and then a planning inspector on appeal, refused his application, finding that planning permission was required to lawfully continue with his home business. Mr Sage challenged the validity of the inspector’s decision.

When home businesses require planning permission

Section 55(1) of the Town and Country Planning Act 1990 defines “development” for which planning permission is required. This includes making a material change in the use of land. However, subsection (2)(d) excludes from the meaning of ‘development’ and thus the requirement for planning permission:

“The use of any buildings or other land within the curtilage of a dwelling house for any purpose incidental to the enjoyment of the dwelling house as such”.

Therefore, the legal test is whether there is a material change of use of the land and, if so, is such use ‘incidental’ to the enjoyment of the residence (“dwelling house”). These questions are a matter of planning judgement for the decision maker, whether the local planning authority or an inspector on appeal, to be judged by the facts, scale and degree of the home business.

The court clarified that the phrase “incidental to” is not simply a question of the whether the use is not dominant, but whether at all times the house remains used as a residence, not as anything else. They also stated that the use of the outbuilding in question is no more than ancillary to that use as a dwelling-house.

In other words, if the use of the outbuilding is incidental or ancillary,  it is in law part of the single main use, and not a separate use at all. The “single main use” in reality, incorporates the incidental or ancillary use.

Again, it is a question of the facts, scale and degree of the home business. Therefore, activities initially incidental to the use of  the main dwelling house may grow in scale to a point where they convert such single use into a composite . Relevant factors include (but are not limited to):

• The location of the residence, in the town or country or remote from other dwellings
• The size and extent of the curtilage in the context of the incidental user
• The nature and scale of the activity said to be incidental: the more dominant, the less likely it is to be incidental
• Environmental impacts based on the degree of disturbance: this will include such things as noise, odours, visual and parking impacts
• The disposition and character of the occupier

The court in the Sage case made it clear that a material change of use can be made without any adverse environmental impact at all. The crucial test is whether there has been change in the character of the use. Environmental impact can be relevant as evidence that a material change has occurred, because a use of the new character may be capable of yielding environmental impacts or have done so already.

Generally, it is accepted that the use of one room in a dwelling house as an office or study, even though it has commercial aspects, could still be regarded as incidental to the enjoyment of the house.. Likewise, the indulgence of a hobby is more likely to qualify than some commercial activity.

Decision in the Sage case

The court dismissed the claim and commented that “an inspector properly directed by lawful guidance could not rationally have concluded, as a matter of fact and degree, that the six day a week use, with 30 or so sessions, with the hours envisaged on this property in a tight knit residential area, was incidental or ancillary to the use of a dwelling house as a dwelling house”.

Lesson

Before starting a home business, it is important to first consider whether you need planning permission. This is especially the case if you have a large number of visiting clients or operate the business full-time. Either make enquiries with your local planning authority or obtain expert planning advice from a solicitor or planning consultant.