The cat’s whiskers

Here’s an appeal case which tells us that a commercial use at a private house does not necessarily need planning permission (DCS Number 400-031-485).

In this case the appellant sought a certificate of lawfulness for the use of an existing outbuilding as a commercial cattery for up to ten cats. The inspector identified the main issue as being whether the proposal would amount to a material change of use constituting development as defined in section 55 of the Act. He recorded that there is no statutory definition of a material change of use; however, it is linked to the significance of a change and the resulting impact on the use of land and buildings. Whether a material change of use has taken place, he explained, is a matter of fact and degree and this will be determined on the facts and circumstances in any particular case. 

The council accepted that a householder’s own private use as a cattery for up to ten cats would likely be an incidental use to a primary residential use. The council argued that in this case, on the other hand, the use would be a commercial one, and that such use is defined as sui generis in the Land Gazetteer. The inspector reasoned, however, that while uses may or may not be commercial, and are ascribed land-use classifications in the Land Gazetteer, that does not define them as primary uses constituting section 55 development, nor does it determine that such listed land uses are incapable of being incidental uses in conjunction with other primary land uses. He also did not agree with the council’s view that a commercial incidental use at a residential property can only exist when the room or outbuilding occupied for such incidental use fully returns to being primary residential use at the end of a working day. 

Having regard to the details provided of the proposed use the inspector found that there would be no significant actual or perceived change in the character of the use of the land as a residential property. He found that the cattery use would be a small-scale incidental use, both functionally and physically linked to the occupation of the property as the appellant’s main primary residential use, rather than being a mixed use of two primary uses as contended by the council. As such, he determined that the proposed use of the land as a whole would remain a single planning unit where the whole unit of occupation is used for one main purpose and any secondary activities are incidental or ancillary.

Issuing an LDC, the inspector concluded that there would be no material change of use of the land and hence no development within section 55 of the Act.

Did you know……that the term ‘incidental to the enjoyment of the dwellinghouse’ dates from 1948? There is all kind of other interesting and useful information about the term to be found at section 4.3445 of DCP Online.