Permitted Development England
How to build a home extension without Planning Permission using your PD rights - Oct. 1st 2008

Incidental use - What some of the Appeal Inspectors have said on C of LD Appeals relating to this issue.

The following appeal summary has been written by Steve Speed, and is available on his website www.planningjungle.com

SO WHAT DOES THE TERM - “INCIDENTAL TO THE ENJOYMENT OF THE DWELLINGHOUSE” MEAN?:

Instead, these appeal decisions are listed below, with (where possible) a summary of the types of rooms involved, and an indication of whether or not the Inspector found them to be “incidental”. Please note that this list was started at the end of 2009, and therefore only contains appeal decisions after this date:

Appeal decisions (or parts of appeal decisions) that relate to whether or not an outbuilding accords with the phrase “required for a purpose incidental to the enjoyment of the dwellinghouse as such” are not summarised in this document. Instead, these appeal decisions are listed below, with (where possible) a summary of the types of rooms involved, and an indication of whether or not the Inspector found them to be “incidental”. Please note that this list was started at the end of 2009, and therefore only contains appeal decisions after this date:

NOT SUMMARISED IN THIS DOCUMENT - “INCIDENTAL TO THE ENJOYMENT OF THE DWELLINGHOUSE”:
Decision Date:	Address:	PINS Reference:	Types of Rooms:	Conclusion:
22 September 2009	Bywood, Honeypot Lane	APP/G2245/X/09/2100324	Outbuilding containing bedroom.	The Inspector found that a bedroom, which is primary residential accommodation, is not incidental.
22 September 2009	10 Church Road	APP/W0530/X/09/2101282	Two extensions to existing outbuilding, to include new kitchen and study.	The Inspector stated that “primary living accommodation” is taken to be “part of the normal facilities that could be expected to be provided within a dwellinghouse”, and that therefore the proposed kitchen would be “primary living accommodation”. The Inspector stated that previous appeal decisions have established that such accommodation would not be considered as being used for purposes categorised as ‘incidental’ to the enjoyment of the main house and would not therefore be permitted by Class E. The Inspector stated that ‘incidental’ purposes are regarded as being those connected with the running of the dwellinghouse or with the domestic or leisure activities of its occupants, as distinct from ordinary living accommodation. The Inspector noted that in Rambridge v SSE (1996) the court held that Class E does not permit a building that is designed from the start as primary residential accommodation, and that in Peche D’Or Investments v SSE (1996) the court rejected the proposition that a building that had been built for ‘incidental’ purposes under Class E could, a day later, be changed to primary residential accommodation. However, the Inspector acknowledged that if a building had genuinely been constructed for incidental purposes, planning permission was not required for a later change [to primary living accommodation], provided the building remained within the same planning unit. The Inspector concluded that in this particular case, as the outbuilding is an existing curtilage building, it [the existing outbuilding] could now be altered internally to include primary living accommodation such as a kitchen and bedrooms, provided it remained part of the same planning unit as the main house. Nonetheless, to be classed as permitted development under the revised Class E, any extension to the building could only be for accommodation required for purposes incidental to the enjoyment of the original dwellinghouse
19 October 2009	The Cherries, Wingham Well Lane	APP/X2220/X/09/2097943	Outbuilding containing domestic garage and store.	The proposed outbuilding would have had dimensions approx 12m x 9m. The Inspector found that it would not be incidental.
28 October 2009	Porters Cross, Crazies Hill	APP/X0360/X/09/2102032	Outbuilding containing swimming pool, two changing rooms, and a plant room.	The proposed outbuilding would have floor area approx 200m2, in comparison to a house with footprint approx 235m2 and floor area approx 300m2. The Inspector found that the proposed outbuilding would be incidental.
11 November 2009	30 Linksway	APP/R5510/X/09/2103482	Outbuilding containing swimming pool.	The proposed outbuilding would have size 6.6m x 20.45m (= 144m2) within a site of size 25m x 75m (= 2025m2). The Inspector found that the proposed outbuilding would be incidental.
13 November 2009	31 Vicarage Road	APP/Z3635/X/09/2102498	Outbuilding containing living room, two bedrooms, and a bathroom, but no kitchen.	The Inspector stated that Class E is directed to incidental purposes (a garden store, summer house, pet animal housing or the like) rather than the provision of additional residential accommodation. The Inspector stated that even if the proposed outbuilding is not self-contained (because it does not contain a kitchen), the clear and stated intention is for the proposed outbuilding to provide additional residential accommodation, and therefore it would not be incidental.
17 November 2009	14 Fairfax Road	APP/L5810/X/09/2105421	Outbuilding containing home office / spare overnight bedroom, bathroom, toilet.	Taking into account his view that the overnight bedroom accommodation would be an infrequent use, the Inspector found that this would be incidental.
17 November 2009	14 Fairfax Road	APP/L5810/X/09/2110592	“Outbuilding” (i.e. for an unspecified purpose).	Taking into account that the onus is on the applicant to specify the purpose to which the outbuilding is to be put, the Inspector found that he could not conclude that a structure simply marked as “outbuilding” would be incidental.
2 December 2009	Little Heath, Roman Ride	APP/X0360/X/09/2107624	Outbuilding containing double garage for the storage of classic cars, gym/studio, sauna, WC and boiler room.	The proposed outbuilding would have footprint 173m2, in comparison to the dwelling (bungalow) which has footprint 179m2. The Inspector found that the proposed outbuilding would be incidental.
15 January 2010	Windrush, The Ridgeway	APP/Q5300/X/09/2111395	Outbuilding containing gym, playroom, “kitchen” (consisting of sink and fitted cupboards), wash handbasin, WC, with electricity and water supply, and underfloor heating.	Taking into account the size of the large detached house next door, the proximity of its conservatory, extending a significant distance to the west of the main building towards the appeal structure, the latter’s total lack of sleeping accommodation and the absence of any fence or other means of enclosure separating the two buildings from each other, the Inspector found that the outbuilding is incidental. The Inspector also awarded costs against the Council.
25 January 2010	86 Hitherbroom Road	APP/R5510/X/09/2111737	Outbuilding marked on plan as “exercise/playroom”.	The Inspector stated that: “Class E of the GPDO does not permit the erection of outbuildings for use as additional residential accommodation of the sort which would normally be found in a house, for example as an additional bedroom or living room. It is therefore appropriate to examine the reasons for development being "required" under Class E - otherwise the GPDO would be open to abuse by sham proposals, involving buildings being constructed for one stated purpose and then being used for another purpose.” The Inspector concluded that the annotation “exercise/playroom”, with no other information, was vague, and that the applicant had failed to put forward evidence on which the Inspector could base a finding that the building is reasonably required for a purpose incidental to the enjoyment of the dwellinghouse as a dwellinghouse.
26 January 2010	81 Bourne Avenue	APP/R5510/X/09/2110511	Outbuilding as “playroom”.	Virtually identical to 86 Hitherbroom Road appeal decision notice – applicant had failed to demonstrate that “playroom” was reasonably required for a purpose incidental to the enjoyment of the dwellinghouse as such.
18 March 2010	41 London Road	APP/X0360/X/09/2112801	Erection of an outbuilding for use as a playroom, gym, sauna, workshop and store. The new building would house a playroom, a gym, a sauna, a workshop and a store. The playroom would house a full size snooker table while the appellant regards the rest of the accommodation as a scale that is suitable for all the occupants of the dwelling. It is also said on her behalf that the store is of a reasonable size for “leisure/ garden/ maintenance equipment” because the house itself has four double bedrooms. The appellant has an unusually long, but relatively narrow garden at the rear of her terrace house. From the plans submitted with the application to the Council the new building would be 6.4 m wide and 41.4m long. It would be a little over 2m from each side boundary and 2.5 to 3.5m from the rear boundary. It would lie about 15m from the rearmost part of the existing house. The roof would be pitched with a ridge height of 3.8m. The plans show that the footprint of the existing house is about 100m² while the new single storey building would have a footprint of 285 m². Other houses in the row have shorter gardens while on one side the lower half of the appellant’s garden adjoins a Council car park.	The Inspector stated that “Purposes incidental to the enjoyment of a dwellinghouse have been held to include those connected with the running of the dwellinghouse or with domestic and leisure activities of the persons living in it. Specifically, a games room to accommodate a billiards table has been held (in an appeal decision reported at [1987] JPL 733) to satisfy that objective. In Emin v SSE [1989] JPL 909 the High Court accepted that it would be wrong to consider that the proposed buildings could not reasonably be said to be required for a use reasonably required for the enjoyment of the dwellinghouse simply because it would provide more accommodation for secondary activities than the house provided for primary activities; that was not part of the test as to which buildings fell within this class. Two principles have emerged from the cases. First that something which is ‘incidental’ cannot be a dwellinghouse nor, therefore, can it be for something for the provision of a dwellinghouse purpose, such as a bedroom or kitchen. Secondly, a “purpose incidental to the enjoyment of the dwellinghouse as such” is a broad concept. It is a matter of fact and degree in each case. The building must be “required” for the incidental purpose, it is a matter primarily for the occupier to demonstrate what incidental purposes he intends to enjoy. In this case the appellant has given little by way of any explanation for the unusually large size of the proposed building. Although the appellant says the store is ‘adequate’ for hobby equipment, garden furniture, garden maintenance equipment and recreational equipment, a room of 11m x 6m appears to be excessive for what would become a much smaller garden. Similarly although it is said on behalf of the appellant that the gymnasium is required to accommodate running, rowing, multifunctional weight training equipment and floor space for exercises, 7.5m x 6m again appears to be excessive. It appears that the snooker room is likely to have a bar area. There is also some reference to the need to take into account wheelchair and disability cart movements although nothing in the submissions made on behalf of the appellant indicates that occupants of the house are disabled. In Wallington v SSW (1991) 62 &CR 150, the Court of Appeal held that the words “as such” in the Act must mean “of and incidental to the enjoyment of the dwellinghouse as a dwelling-house.” The mere fact that the occupier may genuinely regard the relevant activity as a hobby could not suffice to prove that the purpose was incidental to the enjoyment of the dwellinghouse as a dwellinghouse. An objective standard had to be applied in considering the relevance or otherwise of the provisions of the GPDO. In Emin it was said that “the fact that such a building had to be required for a purpose associated with the enjoyment of the dwellinghouse could not rest solely on the unrestrained whim of him who dwelt there. It connoted some sense of reasonableness in all the circumstances of the particular case…..the word ‘incidental’ connoted an element of subordination in land use terms in relation to the enjoyment of the dwellinghouse itself.” The judge also said “...the question as to whether a building qualifies for the purpose of the order would raise questions of fact and degree which are quintessentially appropriate for consideration by a planning authority or the Secretary of State or his Inspector, who were well practised in the problem of resolving sometimes difficult and finely balanced issues of fact in the field of land use planning.” Having regard to this judicial advice and the circumstances of this case, the proposed new building exceeds what may be reasonably considered as incidental to the enjoyment of the dwellinghouse. The building would be much larger than the house itself, even including the upper floors. Although the activities designated on the plans of the new building fall into categories that, individually, may be acceptable as incidental to the enjoyment of the dwelling house, taken together they occupy an unreasonable amount of space. Thus as a matter of fact and degree the proposals do not come within the terms of Class E of Part 1 of GPDO.”
21 April 2010	Beech Coppy, Bradford Lane	APP/R0660/X/10/2120458	Two outbuildings, one to contain a swimming pool, sauna, bar area, changing room, WC, plant room, store (the “Pool House”), and the other to contain a snooker room, gym, bar area, kitchenette area, changing room and WC (the “Leisure Building”).	The Inspector found that the proposed outbuildings would be incidental.
7 June 2010	33 Station Road , Sunningdale	APP/T0355/X/10/2121005	Outbuilding marked “Games Room”.	The Inspector found that the proposed outbuilding would not be incidental, and stated the following: “There is no explanation why a building of this size is required for use as a games room. In my view, in order to satisfy Class E it is not enough to meet the physical criteria and state that the building will be used as a games room. It is also necessary to provide enough evidence to show, on the balance of probability, that the building is reasonably required for a use which is truly incidental and not for a primary residential use. Taking into account all the circumstances and the absence of any explanation as to why the building is required for the stated purpose, I conclude on balance that this building is not required for a purpose incidental to the enjoyment of the dwellinghouse as such. It would not therefore be permitted development under Class E.”
11 June 2010	83 Bodley Road , New Malden	APP/Z5630/X/09/2114743 APP/Z5630/X/10/2124654	Family entertainment / fitness / play / cinema room, refreshment & changing room, shower room, hobby workshop & storage.	The Inspector found that the proposed outbuildings would be incidental.
22 June 2010	15 Field Close, Hounslow, TW4, 6LN	APP/F5540/X/09/2118743	Room containing a dining table, bed, and clothes hanging up. (Structure is an extension, but the Inspector considered the hypothetical question of what if it was detached).	The Inspector found that the structure would not be incidental. The Inspector also explained that a structure that does not comply with the GPDO at the point in time when it is substantially completed, can not be later altered to comply: “Moreover the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (“the Order”) cannot be claimed retrospectively. In the case of R (oao Watts) v Secretary of State for the Environment, Transport and the Regions [2002] JPL 1473 Ouseley J. held that the question to be answered is whether, from the start of the development for which reliance on the provisions of the Order is claimed until the time at which it has been substantially completed, the building which is being altered pursuant to the Order has been otherwise enlarged, improved or altered so that the cubic content of the “resulting building”, including works under the Order, exceeds the cubic content of the original dwelling house by more than the specified allowance. If it does the said works cease to be protected by the Order and can be the subject of enforcement action. On this basis a structure either was or was not erected as permitted development and the structure cannot be made so retrospectively by altering it to try and make it meet the criteria in the Order.”
9 July 2010	3 Darley Green Road , Knowle, B93 8PP	APP/Q4625/X/09/2113677	Outbuilding with 1 large open plan room and 1 smaller room, with use indicated storage, games room, hobby room, office/study.	The Inspector found that the proposed outbuilding would not be incidental. The Inspector stated the following: “I note that individually each of the activities described above can be reasonably regarded as being ‘incidental’. However, the building would comprise a large open plan space with a smaller room to the rear. The evidence does not clearly show that the garden annexe would be used in a particular way for the incidental activities, due to the lack of complete and sufficient internal layout plans. The information submitted does not demonstrate that this building’s scale and size is necessary for the incidental uses.”
19 August 2010	The Royds, Whitechapel Road	APP/Z4718/X/10/2127900	Outbuilding with library, art studio, play room, store, toilet and lobby. The application originally stated that the proposed outbuilding would be used as a “granny flat” for the appellant’s father, and would also contain a library, a play room and storage rooms. Subsequently, an amended drawing was submitted showing the use of the rooms as a library, art studio, play room, store, toilet and lobby, albeit with no change to the dimensions of the proposed outbuilding.	The Inspector found that the proposed outbuilding would not be incidental. The Inspector stated the following: “Class E does not permit the erection of outbuildings for use as additional residential accommodation of the sort which would normally be found in a house, for example as an additional bedroom or living room. It is therefore appropriate to examine the reasons for development being "required" under Class E - otherwise the GPDO would be open to abuse by sham proposals, involving buildings being constructed for one stated purpose and then being used for another one. In this instance, I am concerned that although the building appears to have been designed initially to provide a degree of living accommodation, and looks very much like a bungalow, its form, appearance and scale remain the same despite the apparent omission of the living accommodation. Although I have read that the appellant’s father is now to be accommodated in the main house, it has not been explained why a building of the size proposed is still required in the light of this change. Nor is there anything before me that shows how the accommodation, including the ‘art studio’ that would occupy a large proportion of the building’s floorspace, would function relative to ‘The Royds’. I find the proposal as it stands vague and imprecise. Merely making an application for a LDC and indicating a proposed use does not provide a case that what is proposed is, or would be, reasonably required. The submission that the uses shown are “accepted as” secondary or ancillary to the enjoyment of the dwellinghouse offers little assistance in this respect as it does not help shed much light on the matter. And, while the scale of the proposed building may well be less than that of ‘The Royds’, this has no bearing on the point at issue here. No evidence has been put forward on which I could base a finding that the building is reasonably required for a purpose incidental to the enjoyment of the dwellinghouse at ‘The Royds’. In the light of the foregoing, and mindful of the onus of proof referred to in paragraph 6 above, I am not satisfied that the evidence is sufficiently clear or compelling that it demonstrates that the proposed building would be permitted development under Class E of Part 1 of Schedule 2 of the GPDO.”
2 November 2010	12 Gladsdale Drive , Pinner, Middx, HA5 2PP	APP/R5510/X/10/2121399	Garage and games room. The proposed outbuilding would have area approx 52m2.	The Inspector found that the proposed outbuilding would be incidental. The Inspector stated the following: “Garages and games rooms are capable of being a type of use which is incidental to a dwellinghouse. The court held in Emin4 that is incorrect to say that proposed buildings could not be said to be required for a use reasonably incidental to the enjoyment of the dwelling as such because they would provide more accommodation for secondary activities than the dwelling provided for primary activities; this was not part of the test as to what buildings fell within Class E. Nevertheless, the test must retain an element of objective reasonableness and should not be based on the unrestrained whim of an occupier. On the other hand, a hard objective test should not be imposed to frustrate the reasonable aspirations of a particular owner or occupier so long as they are sensibly related to the enjoyment of the dwelling. These court authorities and another indicate that with each case it is a matter of fact and degree based on the particular circumstances. … In terms of the house size the Council have produced a series of figures which they say show that the building is excessive and not subordinate in nature. The word subordinate does not appear in Class E and I am conscious of the findings in Emin. Nevertheless, having regard to the words “as such” I accept that some comparison with the size of the dwelling is a useful indicator. However, this comparison should be made against the existing building as this is the current dwellinghouse and not the original house. It is not a matter of what might have been accepted as incidental in the past but what is incidental to the current extended property, as such. The Council calculate the total floor area of the new building as being about 60 sq.m. which is about 8 sq.m. larger than the figure provided for the appellant. However, even assuming that the Council’s figure is more accurate this compares with the current footprint for the dwelling of about 97 sq.m8. So the ground coverage would be significantly less than that of the present house. Moreover, I see no reason why the floorspace at first floor level should not be included in making this assessment. Taking the Council’s figure of 52 sq.m. for the original footprint and assuming this is roughly equivalent at first floor level, the total floor area of the house would be about 150 sq.m. This reinforces my view that the proposed building would be incidental.”
11 November 2010	3 Phelps Way , Hayes, Middlesex UB3 4LH	APP/R5510/X/10/2122954	Outbuilding for the storage of personal goods and garden equipment.	The Inspector found that the proposed outbuilding would not be incidental. The Inspector stated the following: “It is well established case law that additions to the normal basic living accommodation of a dwellinghouse could not be expected to be “incidental to the enjoyment of the dwellinghouse, as such”. Furthermore, the physical sizes of the host and “incidental” building are relevant considerations for me to take into account in deciding whether or not the proposed development is reasonably required for an incidental purpose. The appellant has provided no evidence to explain what kind of “personal goods” he intends to store and why they can not be accommodated in the dwellinghouse. In the absence of such evidence, I consider that storage of personal goods constitutes a purpose which is integral to and normally accommodated in a dwellinghouse. Therefore, it is not an incidental use. Furthermore, I note that the footprint of the proposed building is significantly larger than the ground floor of the existing two storey dwellinghouse. The appellant has given me no evidence from which I could conclude that such a large building is reasonably required for storage of “personal goods” The garden equipment, referred to by the appellant, must be intended for personal use in the garden of the dwellinghouse; as opposed to use in conjunction with a business. I have sought to compare the size of the proposed building (admittedly shared with the storage of personal goods) with the size of the garden remaining after development. The minimal size of garden left after construction of the outbuilding would need a modest level of maintenance which could be accomplished with a lawn-mower and a small number of hand tools such as spades, forks and implements of a similar nature. The space available in the large outbuilding proposed would far exceed the area required for storage of such equipment. Hence, on the basis of the evidence supplied to me, the comparison leads me to the conclusion that, in terms of use of the building for storage of garden equipment, the proposed building is not “required for a purpose incidental to the enjoyment of the dwellinghouse, as such”.”
19 November 2010	Shepherds Croft, Wigley Bush Lane, South Weald, Brentwood CM14 5QN	APP/H1515/X/10/2125337	Outbuilding to enclose swimming pool and games room (with footprint significantly larger than the footprint of the house and annex).	The Inspector found that the proposed outbuilding would be incidental.
19 November 2010	Thorndon Cottage, Warley Gap, Little Warley, Brentwood CM13 3DP	APP/H1515/X/10/2124574	The proposal is for a building about 30m long by 10.5m wide for the purpose of a swimming pool, gym, sauna and stables.	The Inspector found that the proposed outbuilding would be incidental.
23 November 2010	13 Pine Place , Hayes, UB4 8RA	APP/R5510/X/10/2124692	Outbuilding with five rooms and floor space approx 63m2, stated as to be used as playroom.	The Inspector found that the outbuilding would not be incidental. The Inspector stated the following: “The Courts have held that in the expression “required for a purpose incidental to the use of the dwelling house”, the word “required” should be interpreted to mean “reasonably required”. Thus in this type of case it is for the appellant to show that the proposed outbuilding is reasonably required for a purpose incidental to the use of the dwelling-house at No. 13. The outbuilding would be a substantial structure. The plans show it divided into five separate rooms. The total floor space would be about 63 square metres. Apart from stating that the outbuilding is to be used as a playroom no other evidence has been produced by the appellant to show why the proposal is reasonably required for a purpose incidental to the enjoyment of the dwellinghouse at No. 13. For the reasons given above I conclude that the Council’s refusal to grant a Certificate of Lawfulness of Proposed Development in respect of a single-storey outbuilding in the rear garden of 13 Pine Place, Hayes, UB4 8RA was wellfounded and that the appeal should fail. I will exercise accordingly the powers transferred to me in Section 195(3) of the 1990 Act”.
29 November 2010	Woodhurst, Cattlegate Road, Northaw, Enfield, EN2 8AU	APP/C1950/X/10/2135203	Outbuilding to enclose swimming pool (footprint 260m2).	The Inspector found that the proposed outbuilding would be incidental. The Inspector stated the following: “It is established in law and in practice that purposes incidental to the enjoyment of a dwellinghouse would not include the provision of a bedroom or kitchen or some other similar domestic purpose of a kind that would be akin to the primary or normal accommodation provided in a dwellinghouse. As a matter of fact and degree, such domestic functions would be part-and-parcel of such normal accommodation as would be found typically in most, if not all, dwellinghouses. The term “incidental” has been found to mean something which would be subordinate to and parasitic upon the continuing presence of the primary use for its very existence. Moreover, for development to be permitted by the provisions of Class E, it must also be “…required for a purpose incidental to the enjoyment of the dwellinghouse as such.” The Courts have held that “required” should be interpreted as meaning “reasonably required”. In Emin v Secretary of State for the Environment and Mid-Sussex DC (1989) 58 P&CR 416; [1989] JPL 909, referred to by the main parties in the present case, it was held that the provision of accommodation for a hobby use was capable of being required for a purpose incidental to the enjoyment of a dwellinghouse. Indeed, specific reference in Class E to a “swimming pool” is a clear indicator that such development, whether it comprises merely an excavation in the ground to form an open-air swimming pool, or includes, in addition, a building or enclosure that accommodates a swimming pool, would be capable of being development required for a purpose incidental to the enjoyment of the dwellinghouse as such. It was further held that it would not be sufficient to deprive the appellant of the permission granted by the GPDO by consideration, taken in isolation, of the physical size of the proposed building in relation to that of the dwelling; the mere size of the dwelling could not dictate the physical size of the facility within a building and the size of the building itself. However, it must be required for a purpose incidental to the enjoyment of the dwellinghouse, as a dwellinghouse, and not for any extraneous purpose. In this respect, the Courts have also held that such use would not accommodate the “unrestrained whim” of the householder, but would require a sense of reasonableness”.
23 December 2010	8 Durham Avenue , Hounslow, TW5 0HG	APP/F5540/X/10/2134356	Gym with internal floor area of approx 44m2.	The Inspector found that the proposed outbuilding would not be incidental. The Inspector stated the following: “The judgement in Emin held that the scale of the activities that go on in an outbuilding is important in deciding whether that outbuilding is required for a purpose incidental to the enjoyment of a dwellinghouse as a dwellinghouse and not for extraneous purposes. The question of scale, or size, is relevant because there must be a prospect that the nature and scale of such activities could go beyond a purpose merely incidental to the enjoyment of the dwelling as such. Clearly scale cannot be ignored in assessing whether what is proposed is required for the necessary incidental purpose. It is an assessment that needs to be made additional to, and separate from, any considerations of size in relation to Class E.1 of the 2008 Order. In this case the proposed outbuilding would have an internal floor area of about 44 sq m. It would be used as a gym. The floor area to be devoted to this use seems very large to me. In my experience it would be much larger than what is available for that purpose in most domestic settings. Adequate gym facilities could be provided within a much smaller area. The appellant has not explained why the large area proposed is required and the burden of proof is on him. Bearing in mind the August 2010 publication by the Department for Communities and Local Government, “Permitted development for householders - Technical guidance”, it would be wrong to take exception to the use proposed for the outbuilding if one ignores the question of scale. In a nutshell, however, the appellant must show that what is proposed is reasonably required for a purpose incidental to the use of the dwellinghouse. He has not done so with regard to the scale of the outbuilding. I conclude therefore, on the evidence now available, that the Council’s refusal to grant a lawful development certificate was well-founded and that the appeal should fail so far as the outbuilding is concerned”.
23 December 2010	46 Fairway Avenue, West Drayton, UB7 7AN	APP/R5510/X/10/2130342	The proposed outbuilding would have a footprint of 82.2 sq m. It would contain a home office of virtually 30 sq m, a gym not much smaller, a store of about 15 sq m and a shower room.	The Inspector found that the proposed outbuilding would not be incidental. The Inspector stated the following: “The judgement in Emin held that the scale of the activities that go on in an outbuilding is important in deciding whether that outbuilding is required for a purpose incidental to the enjoyment of a dwellinghouse as a dwellinghouse and not for extraneous purposes. The question of scale, or size, is relevant because there must be a prospect that the nature and scale of such activities could go beyond a purpose merely incidental to the enjoyment of the dwelling as such. The Council’s comparison in the case before me of the outbuilding’s size with that of the house may be a little simplistic, but scale cannot be ignored in assessing whether what is proposed is required for the necessary incidental purpose. It is an assessment that needs to be made additional to, and separate from, any considerations of size in relation to Class E.1 of the 2008 Order. In this case the proposed outbuilding would have a footprint of 82.2 sq m. It would contain a home office of virtually 30 sq m, a gym not much smaller, a store of about 15 sq m and a shower room. I take no exception to the size of the store in assessing whether this is a required incidental purpose, but the floor areas to be devoted to home office use and gym use seem very large to me. In my experience they would be much larger than what is available for those purposes in most domestic settings. Adequate home office and gym facilities could be provided within much smaller areas. The appellant has not explained why the large areas proposed are required and, as the Council say, the burden of proof is on him. The fact that the 30 sq m of building A, proposed to be demolished, appears to be used as a home office, does not appear crucial to me in assessing whether the similar space to be used in the proposed outbuilding for that purpose is a required incidental purpose. Bearing in mind the August 2010 publication by the Department for Communities and Local Government (DCLG), “Permitted development for householders - Technical guidance”, it would be wrong to take exception to the uses proposed for the outbuilding if one ignores the question of scale. I agree with the appellant that the only use that would amount to primary living accommodation would be the shower room, and that would be acceptable as ancillary to the gym. Although the Council point out that the other uses intended are not specifically mentioned in the DCLG publication, the examples given there do not amount to an exhaustive list. In a nutshell, however, the appellant must show that what is proposed is reasonably required for a purpose incidental to the use of the dwellinghouse. He has not done so with regard to the scale of his proposal. I conclude therefore, on the evidence now available, that the Council’s refusal to grant a lawful development certificate was well-founded and that the appeal should fail.” My decision above is in exercise of the powers transferred to me under section 195(3) of the 1990 Act as amended. Mike Croft
5 January 2011	Magnolia House, Westwood Road, Windlesham, Surrey, GU20 6LP	APP/D3640/X/10/2130855	Building A would house a pool/games room, gymnasium, spa, sauna, steam room and changing and shower facilities while building B would accommodate a garden room, office, cloakroom and incidental kitchen/store. Each building would have a floorspace of about 192 square metres.	The Inspector found that the proposed outbuilding B would not be incidental.
31 January 2011	48 Waltham Drive , Edgware, London, HA8 5PE	APP/M5450/X/10/2140019	Proposed outbuilding that would include a kitchen, a bathroom, a dining room, a lounge and a bedroom.	The Inspector found that the proposed outbuilding would not be incidental. The Inspector stated the following: “The application is for accommodation that would include a kitchen, a bathroom, a dining room, a lounge and a bedroom. With these facilities it would be an independent unit of living accommodation. It would not be a building designed for use incidental to the enjoyment of the dwellinghouse. The proposed development therefore conflicts with Class E Part 1 of the Schedule to the Town and Country Planning (General Permitted Development) (Amendment) (No.2) (England) Order 2008 which amends Schedule 2 of the 1995 Order and would not be lawful. The Borough Council’s decision to refuse the application was therefore well founded.”
27 January 2011	34 Oxenpark Avenue , Wembley HA9 9SZ	APP/T5150/X/10/2121481	Proposed outbuilding consisting of “gym”, “store”, and a third room containing shower, toilet and sink.	The Inspector found that the proposed outbuilding would not be incidental.
16 February 2011	103 Birchway, Hayes, Middlesex, UB3 3PD	APP/R5510/X/10/2132311	Proposed outbuilding consisting of games room, gym, and “WC” (containing shower).	The Inspector found that the proposed outbuilding would not be incidental. The Inspector stated the following: “It seems to me that a Shower Room is, like a bathroom, primary living accommodation rather than being for a purpose incidental to the enjoyment of a dwellinghouse as such. As a consequence I consider that the building does *not* constitute permitted development within Class E and I conclude that the Council’s decision to refuse the grant of a LDC was therefore well-founded. Accordingly I shall dismiss the appeal.”
25 February 2011	10 Jackies Lane , Wheatley, Oxford, OX33 1UN	APP/Q3115/X/10/2141101	Proposed outbuilding consisting of a snooker room and a garage.	The Inspector found that the proposed outbuilding would be incidental.
2 March 2011	12 Bulmer Gardens, Harrow, Middlesex, HA3 0PA	APP/T5150/X/10/2139015	Two proposed outbuildings – one for gymnasium (24m2) and the other for garden store (18m2).	The Inspector found that the proposed outbuildings would be incidental.
4 March 2011	Lilac Cottage, School Lane, Coven, Wolverhampton WV9 5AN	APP/C3430/X/10/2141553	Proposed carport to store a number of cars, a motor caravan and touring caravan, and a heavy goods vehicle [HGV] fitted with a hydraulic grabarm.	The Inspector found that the proposed outbuilding would not be incidental.
4 March 2011	20 Browsholme Close, Carnforth, LA5 9UW	APP/A2335/X/10/2141112	Proposed stables to accommodate two horses.	The Inspector found that the proposed outbuilding would not be incidental.
10 March 2011	34 New Road, Harlington, Hayes, Middlesex, UB3 5BD	APP/R5510/X/10/2139449	Proposed outbuilding for use as a leisure room.	The Inspector found that the proposed outbuilding would not be incidental.
14 March 2011	172 Staines Road East , Sunbury-on-Thames, Middlesex TW16 5AY	APP/Z3635/X/10/2139073	Proposed outbuilding consisting of storage room, games room, and bathroom.	The Inspector found that the proposed outbuilding would not be incidental. The Inspector stated the following: “But something which is incidental cannot itself be a dwelling house, nor, therefore as a matter of common sense, can it be something for the provision of a primary dwelling house purpose, such as a bedroom, kitchen or even a bathroom. The proposed building includes a bathroom. Despite the appellant’s explanation regarding the need for such a facility (on the grounds of convenience of use for the games room) its provision would seem to me, as a matter of fact and degree, to exceed to scope of the works permitted by Part 1, Class E, of the GPDO. Thus as submitted the scheme, for a new building (which includes the bathroom), would *not* satisfy the ancillary use test required to make it permitted development”.
9 March 2011	39 Rushdene Road , Eastcote, Pinner, Middlesex, HA5 1SW	APP/R5510/X/10/2141919	Proposed outbuilding consisting of sunroom, gym, wet room, hot tub room, children’s playroom, and WC (total footprint over 100m2).	The Inspector found that the proposed outbuilding would not be incidental.
(Remember to save appeal decision notice)

For the appeal decision notices for the above cases, please visit
www.planningjungle.com/appeal_decisions.shtml

NOT SUMMARISED IN THIS DOCUMENT - OTHER:

Various other types of appeal decisions are not summarised in this document. For example, these include appeals relating to the “use” of a property (e.g. applications for certificates on the basis that a use has become lawful through the passage of time), and appeals relating to other Parts of the GPDO. Please note that this list was started at the end of 2009, and therefore only contains appeal decisions after this date:

NOT SUMMARISED IN THIS DOCUMENT - OTHER:
Decision Date:	Address:	PINS Reference:	Description of development	Notes:
22 September 2009	Bungalow Farm, Penrhos	APP/Q6810/X/08/2090105	Abandonment of a single family dwellinghouse.	The Inspector concluded that the use of the property as a single family dwellinghouse had been abandoned.
2 October 2009	Bellepool, Clewshaw Lane	APP/P1805/X/09/2097017	Part 2, Class A	The Inspector found that a 3m wide grass verge next to a road formed part of the “highway”. Therefore, a 2m high wall along the front boundary of the property next to this grass verge was not permitted development.
8 October 2009	83 Grove Lane	APP/A5840/X/09/2098889	Previous Part 1, Class A.	No further notes – decision notice not downloaded.
12 October 2009	3 Redcliffe Street	APP/K5600/X/09/2099309	Previous Part 1, Class A.	No further notes – decision notice not downloaded.
16 October 2009	16 Bassett Heath Avenue	APP/D1780/X/09/2097252	Use of the rear-most detached out-building as managers accommodation ancillary to the use of the main house as a house in multiple occupation.	No further notes – decision notice not downloaded.
16 October 2009	Shaves Plantation, Brighton Road	APP/D3830/X/08/2087041	Proposed Forestry Work Unit	No further notes – decision notice not downloaded.
16 October 2009	The Noor, Yeovil Road	APP/F1230/X/09/2094936	Non Compliance with the Agricultural Occupancy Condition	No further notes – decision notice not downloaded.
20 October 2009	Oaktree Farm Drummau Road	APP/Y6930/X/09/2098219	Certificate of Lawfulness for an existing residential unit	No further notes – decision notice not downloaded.
27 October 2009	Ankorn Cottage, Bell Green Lane	APP/P1805/X/09/2108666	Conversion of detached garage to additional ancillary accommodation within planning unit.	No further notes – decision notice not downloaded.
27 October 2009	16 Zinzan Street	APP/E0345/X/08/2093169	Use of building as 4 No self contained apartments (i.e. Four Dwellings).	No further notes – decision notice not downloaded.
27 October 2009	4 Green Lane	APP/Y3940/X/09/2101666	Part 2, Class B	The Inspector assessed the proposed means of access against the phrase “create an obstruction to the view of persons using any highway used by vehicular traffic, so as to be likely to cause danger to such persons”, and found that it would not be permitted development.
27 October 2009	Bedford Bridge Horrabridge	APP/J9497/X/09/2105079	Part 8, Class A.	No further notes – decision notice not downloaded.
29 October 2009	Middle Colgate Farm, Ham Road	APP/B1605/X/09/2097334	Use of the barn as a single dwelling house	No further notes – decision notice not downloaded.
2 November 2009	Camp Alyn , Tafarn-y-Gelyn	APP/R6830/X/09/2096943	The retention and continuation of existing residential accommodation.	No further notes – decision notice not downloaded.
4 November 2009	1 Woodrows Cottage	APP/W0340/X/09/2096853	Change of use of land from agricultural to residential garden	No further notes – decision notice not downloaded.
4 November 2009	The Lodge Truslers Hill Lane	APP/D3830/X/09/2105805	Private leisure use and occasional overnight holiday accommodation	No further notes – decision notice not downloaded.
5 November 2009	Flight Service Station, Bridgwater Road	APP/D0121/X/09/2109226	Proposed use of the site for washing/valeting cars, dropping off and picking up cars, associated retail and administration	Appeal dismissed.
5 November 2009	Oak House Farm Newgatestreet Road	APP/W1905/X/09/2099334	Dwelling house	No further notes – decision notice not downloaded.
6 November 2009	Rudley Oaks, Chelmsford Road	APP/X1545/X/09/2097918	Residential use for land comprising three parcels of land on which the buildings thereon have been used for residential use.	No further notes – decision notice not downloaded.
10 November 2009	29 Ascham Place	APP/T1410/X/09/2107436	Part 2, Class A.	The property has an existing curved boundary wall at the corner of two highways, and the certificate was to erect a 1.7m wall immediately behind (abutting) the existing one. The Inspector concluded that the proposed wall would be “adjacent to a highway”, and therefore not permitted development.
11 November 2009	267 East India Dock Road	APP/E5900/X/09/2097561	Eastern flank wall mounted lightbox hoarding measuring 6 x 3 x 0.4 metres.	No further notes – decision notice not downloaded.
12 November 2009	44 Arundel Drive East	APP/Q1445/X/09/2098191	Previous Part 1	No further notes – decision notice not downloaded.
12 November 2009	Homefield, Moss Lane	APP/P2365/X/09/2109940	Two static caravans within the curtilage of a dwelling for use as sleeping accommodation ancillary to that dwelling.	The Inspector concluded that the caravans are not operations development, because they are capable of being moved, and not a material change of use, because their use as sleeping accommodation would be ancillary (not incidental) to the use of the dwelling.
16 November 2009	115 Spotland Road	Case Summary for APP/P4225/X/09/2108212	Use as a furniture store (Class A1).	No further notes – decision notice not downloaded.
16 November 2009	Land comprising field at, OS Grid Reference 417427 457161	APP/E2734/X/09/2108955	Whether a certificate could be issued for development that contravened a requirement of an enforcement notice then in force, where the enforcement notice had been issued, but was not yet “in effect”, due to there being an appeal in progress against the enforcement notice.	The Inspector stated that an enforcement notice is “in force” from the date that it is issued, and therefore dismissed the appeal.
17 November 2009	75 Ringstead Road	APP/C5690/X/09/2099971	Use as a single family dwellinghouse	At the date of application for an LDCP, property was in the process of being converted into flats (unlawfully), and the Inspector agreed that the property did not benefit from Part 1 rights.
17 November 2009	163 Grove Road ,	APP/U5930/X/09/2100515	Previous Part 1.	This case concerned the 5m separation distance of the previous Class E.
23 November 2009	Dromenagh Farm Seven Hills Road	APP/N0410/X/09/2100011	Change of use to builders contractors yard with associated parking, storage and on site equipment training facilities.	No further notes – decision notice not downloaded.
24 November 2009	Manor Farm Prescott	APP/G1630/X/09/2102416	The use of the land for the shooting of shotguns for more than 28 days per year	No further notes – decision notice not downloaded.
26 November 2009	5 Clough Lane	APP/B3438/X/09/2106822	Permission for the sports pavilion	No further notes – decision notice not downloaded.
26 November 2009	Plots 2/3 Esbies Estate	APP/J1915/X/09/2095205	Use as a residential caravan site without complying with Condition	No further notes – decision notice not downloaded.
26 November 2009	40 - 41 Esbies Estate	APP/J1915/X/09/2095197	Use of land as a residential caravan site without complying with Condition	No further notes – decision notice not downloaded.
26 November 2009	42-43 Esbies Estate	APP/J1915/X/09/2095199	Use of land as a residential caravan site and for the erection of stables.	No further notes – decision notice not downloaded.
26 November 2009	Plot 46, Esbies Estate	APP/J1915/X/09/2095202	Use as a residential caravan site with no limitation on the duration of residential occupation in any one year	No further notes – decision notice not downloaded.
30 November 2009	Vale Farm Phelps Lane	APP/Y3940/X/09/2102712	Storage of touring caravans	No further notes – decision notice not downloaded.
30 November 2009	Shellen Valley Farm Layhams Road	APP/G5180/X/09/2103538	Replacement mobile home	No further notes – decision notice not downloaded.
30 November 2009	Shellen Valley Farm Layhams Road	APP/G5180/X/09/2103539	Use of existing mobile home as residential accommodation and side/rear extension	No further notes – decision notice not downloaded.
2 December 2009	Gilfach Holiday Villlage, LLwyncelyn	APP/D6820/X/09/2108817	The Change of use of a building as a dwelling house	No further notes – decision notice not downloaded.
2 December 2009	Gilfach Holiday Village	APP/D6820/X/09/2100070	Use of buildings as 42 dwelling houses	No further notes – decision notice not downloaded.
2 December 2009	Totternhoe Lime Works Lower End	APP/P0240/X/09/2101301	For any use falling within Class B2	No further notes – decision notice not downloaded.
2 December 2009	151 Wavertree Road	APP/N5660/X/09/2104136	Previous Part 1.	No further notes – decision notice not downloaded.
4 December 2009	Dumbills Farm, Crosshall Brow	APP/P2365/X/09/2109887	Whether the location of two proposed outbuildings was part of the “curtilage” of the dwellinghouse.	The Inspector concluded that the location was part of the “curtilage” of the dwellinghouse.
7 December 2009	The Shamba, Lyndhurst Road	APP/B9506/X/09/2096649	Use of the Land as garden / residential curtilage	No further notes – decision notice not downloaded.
8 December 2009	82 Wakeman Road	APP/T5150/X/09/2100225	Whether works had commenced (/started/begun) prior to 01/10/2008.	The Inspector concluded that the excavation, although small, seems to have been a reasonable exploration as to foundation requirements, and that the works amounted to a start of the development.
9 December 2009	Bredhurst adoption centre, Matts Hill Road	APP/A2280/X/09/2108375	The provision of a temporary caravan in the grounds at the rear to provide staff welfare facility.	No further notes – decision notice not downloaded.
9 December 2009	Tafarn Bach Farm, Trerhingyll	APP/Z6950/X/09/2109455	Whether conditions restricting the occupation of a dwellinghouse to persons employed in agriculture or forestry had been breached for a continuous period of at least 10 years.	The Inspector found that the continued residential use of the dwelling without complying with the agricultural occupancy conditions had become lawful.
10 December 2009	Walnut Tree Farm Addington Lane	APP/H2265/X/09/2101077	Use of land for residential garden	No further notes – decision notice not downloaded.
21 December 2009	Old Hall Farm, White House Lane	APP/L2630/X/09/2100215	Continued use of land as domestic garden	No further notes – decision notice not downloaded.
21 December 2009	Tanyard Farm Woodhill Lane	APP/R3650/X/09/2100314	The retention of an ancillary outbuilding.	No further notes – decision notice not downloaded.
21 December 2009	Land adjacent to Jay Riding School, Low Common	APP/E3525/X/09/2106897	Temporary siting of a mobile laying ark	No further notes – decision notice not downloaded.
22 December 2009	2 Lane Green Road	APP/C3430/X/09/2101795	Sale of farm produce from trailer at front of site.	No further notes – decision notice not downloaded.
22 December 2009	129 Queensway	APP/G5180/X/09/2113129	A3 restaurant use	No further notes – decision notice not downloaded.
22 December 2009	Pouchen End Farm House Pouchen End Lane	APP/A1910/X/09/2108970	Erection of detached shed – but concerned previous Part 1 and whether land was within the “curtilage” of a dwellinghouse.	No further notes – decision notice not downloaded.
23 December 2009	Honeyfields, Theobalds Park	APP/W1905/X/09/2097182	Certificate of Lawfulness for an existing agricultural storage building	No further notes – decision notice not downloaded.
30 December 2009	Oak Tree Farm	APP/G2245/X/09/2100906	Replacement mobile home	No further notes – decision notice not downloaded.
30 December 2009	9 Dinam Park	APP/L6940/X/09/2106695	Proposed conservatory – under Previous Part 1	No further notes – decision notice not downloaded.
4 January 2010	The Smithy Hampton Loade	APP/L3245/X/09/2099134	Residential caravan site accommodating six caravans	No further notes – decision notice not downloaded.
11 January 2010	Penweathers Vean, Penweathers	APP/D0840/X/08/2085904	Vehicular access.	No further notes – decision notice not downloaded.
11 January 2010	Mortons Dairy, Kenyons Lane	APP/M4320/X/09/2104157	Use of the land in connection with a dairy business involving the parking and manoeuvring of cars and commercial vehicles, storage of plant and equipment, storage of out of service milk floats and storage of other dairy related items	No further notes – decision notice not downloaded.
11 January 2010	Rob Rosa, Lower Road	APP/B1550/X/09/2111555	Use of a timber framed building as a single dwelling	No further notes – decision notice not downloaded.
14 January 2010	40 Avenue Road	APP/U1240/X/09/2109068	Replacement front porch – appeal dealt with whether alterations to porch constituted “development” – Inspector concluded not development.	No further notes – decision notice not downloaded.
14 January 2010	14 Zealand Avenue	APP/R5510/X/09/2108697	Single storey rear extension for use as exercise room, involving demolition of existing outbuilding – appeal dealt with whether rebuilding of outbuilding constituted development – Inspector concluded was development.	No further notes – decision notice not downloaded.
14 January 2010	1 Shirehall Close	APP/N5090/X/09/2106181	Kitchen extension at ground floor , Roof extension to rear of property (2 dormers) – begun before 01/10/2008 and assessed under previous Part 1.	No further notes – decision notice not downloaded.
15 January 2010	23 First Avenue	APP/D1590/X/09/2101304	Use of the property as a dwellinghouse	No further notes – decision notice not downloaded.
21 January 2010	Ty Bychan, Pant Du Road	APP/R6830/X/09/2111015	Static Residential Caravan	No further notes – decision notice not downloaded.
25 January 2010	177 Wentworth Road	APP/F5540/X/09/2114111	Erection of canopy	The Inspector concluded that an LDCE could not be issued because, at the date of the application, the operations contravened the requirements of an enforcement notice then in force. The Inspector states that the date that an enforcement notice comes into force is the date that it is issued (i.e. the earlier date, rather than the later date that it comes into effect).
28 January 2010	Langstone Court Bungalow, Langstone Court Road	APP/G6935/X/09/2108819	Detached bungalow with garden & paddock	No further notes – decision notice not downloaded.
1 February 2010	161 Hever Avenue	APP/G2245/X/09/2115846	Garage conversion into habitable room – dealt with whether this would be contrary to a condition on a previous planning permission.	No further notes – decision notice not downloaded.
3 February 2010	Trefullock Cottage, Trefullock Moor	APP/D0840/X/09/2103141	Use as a dwelling	No further notes