Incidental to the enjoyment explained

Judging whether a Class E outbuilding ought to be considered ‘incidental to the enjoyment of the dwelling’ is not always easy, so readers might wish to note an appeal case in which the inspector sets out the considerations which should be taken into account (DCS Number 400-014-199).

The inspector explained:

“It is necessary to consider proposals in the particular context within which they would be situated; an outbuilding that may be considered incidental to the enjoyment of a substantial dwelling with many occupants and large grounds may not be incidental if situated in the garden of a small cottage with a single occupant. Size alone is not necessarily a determining factor and a wide range of outbuildings, for different purposes may be permitted under Class E, depending on the specific circumstances. Those principles have been established through the Courts, including the cases of Emin and Wallington. The Courts have also established that the term ‘required’ should be interpreted as meaning ‘reasonably required’.“

The case before the inspector concerned the refusal of a certificate of lawful development for the construction of two detached outbuildings within the curtilage of a property in Hertfordshire. He noted that the appellant and his wife would be the only permanent occupants, remarking that the sheer scale of the facilities would appear to be way in excess of what could be considered reasonably required as an incidental use for a dwelling that would be occupied by two people. He observed “The indoor bowling green would equate to the provision of a full sized bowling rink per occupant. Similarly, the size of the indoor cinema ….could not reasonably be said to be for a purpose incidental to the enjoyment of a dwellinghouse that is occupied by two people.”

The inspector further explained that with regard to Class E, the Technical Guidance states that a purpose incidental to a house would not cover normal residential uses, such as separate self-contained accommodation nor the use of an outbuilding for primary living accommodation such as a bedroom, bathroom, or kitchen. In other words, if the use of a space was fundamental to the ordinary day-to-day functioning of the dwelling it would not be incidental but part of the primary accommodation. The appellant’s suggestion that the large viewing screen in the cinema room would be used in the evenings almost every day for the purpose of watching films and television, as an alternative to watching a smaller television in the lounge, indicated to the inspector that the cinema room would, in effect, be used as an extension to the primary accommodation, very much like an additional lounge, as opposed to an incidental use. As such, it would fall outside the scope of permitted development rights granted through Class E, he determined.

The following DCP section is relevant: 4.3421

Leave a Reply

You must be logged in to post a comment.