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

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.”

The Inspector found that the proposed outbuilding would not be incidental, and stated the following: 

APP/Z5630/X/09/2114743