Always more to do

A recent appeal case concerning the change of use of amenity land to residential garden land at two new houses in Berkshire tells us that an inspector’s work is never done (DCS Number 200-006-882).

The enforcement notices were appealed on the basis that there had been no material change of use due to the action of s55(2)(d), the inspector reported. He recorded that Section 55(2) says “the following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land” and (d) is “the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such”. The appellants argued that the land was within the curtilage of their dwellings and so its use as garden was not development, so could not be a material change of use as alleged.

In determining the appeal the inspector made reference to Richard O’Flynn v SSCLG and Warwick District Council [2016]. Noteworthy is the court’s criticism of the inspector involved for not considering the effect of s55(2)(d) in the case of an application for a lawful development certificate. Having found that the land in question had not been used for residential purposes for the necessary period, the inspector should have gone on to consider whether it was nevertheless within the curtilage of the property, when the use would not constitute development, the court found.

In (DCS Number 200-006-882) the inspector ruled that the land in question for both properties was within the curtilage of those properties and so by virtue of s55(2)(d) its use for purposes incidental to the enjoyment of the dwellinghouse did not constitute development. The appeals therefore succeeded, since there had been no material change of use, and he quashed both notices.

The following DCP section is relevant: 12.9

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