Mission impossible

In deciding an appeal against the refusal of a certificate of lawfulness for the use of an outbuilding at a house in north London as a granny annexe (DCS Number 400-019-266) an inspector has explained that the decisive factor was not whether the building would be used for purposes incidental to the main dwelling. Rather, he determined, it was necessary to assess whether the building would be used as a physically and/or functionally separate dwelling, or would provide living accommodation that was integral to the use of the existing dwelling.

The plans showed that the annexe would include a bedroom, living room with cooking facilities, and a WC and shower room, the inspector noted. The building would thus contain all of the facilities required for day-to-day private living, so that it could potentially be used and occupied as a separate dwelling. The appellant clarified that the proposal was for the use of the outbuilding as a ‘granny annexe’ by a family member in association with the occupation of the main house.

Setting out the legal background, the inspector recorded that permission is granted under Schedule 2, Part 1, Class E of the GPDO for the provision of buildings within the curtilage of a dwellinghouse where required for purposes incidental to the enjoyment of the dwellinghouse. The term ‘incidental’, he explained, describes uses which are not integral to, but have a functional relationship with the primary use of the planning unit. Examples of uses incidental to the enjoyment of a dwellinghouse might include car parking or a home gym. The Government’s Technical Guidance: Permitted Development Rights for Householders, clarifies that when utilising Class E rights, a purpose incidental to a house would not cover normal residential uses, such as separate self-contained accommodation or use of an outbuilding for primary living accommodation.

The inspector noted that the appeal building would be used for living and sleeping purposes. Since those activities are part and parcel of, or integral to a dwellinghouse use, he reasoned, it was clear that the building would not be used for incidental purposes. However, he continued – and this is the bit to make a particular note of – “it does not follow that there would be a material change of use of the building without the requisite planning permission, because the land already has a lawful residential use.” The decisive factor was not whether the building would be used for purposes incidental to the main dwelling. Instead, the decisive factor was whether the building would be used as a physically and/or functionally separate dwelling, or would provide living accommodation that was integral to the use of the existing dwelling.

In support of his ruling the inspector noted that his approach was consistent with the judgment in Uttlesford DC v SSE & White [1992], where enforcement action had been taken against the residential use of a building permitted for incidental use (as a garage). It was held by the court that, although the garage now had the facilities of a self-contained unit, it nonetheless remained part of the same planning unit as the original dwellinghouse and the planning unit remained in single family occupation. In that situation, a material change of use had not occurred.

The inspector concluded that the use of the outbuilding as described by the appellant would not create a new planning unit because it would not be physically separate or distinct from, or occupied for different or unrelated purposes to, the use of the existing dwellinghouse within the same planning unit. He decided that the council’s refusal to grant a certificate of lawful use or development in respect of the use of the outbuilding as a granny annexe was not well-founded and that the appeal should succeed.

The inspector is no doubt correct in his analysis of the legal framework. This framework, however, gives rise to a continuing difficulty for local authorities, particularly ones where ‘beds in sheds’ are a problem. How do you establish who is and who is not a family member and how do you monitor the day-to-day use of an outbuilding? It seems to us here on the Blog that we might be asking councils to undertake an impossible mission.

Further consideration of this topic can be found at section 10.2 of DCP Online which concerns self-contained accommodation in residential outbuildings and annexes.