The pandemic revealed that many jobs could be done more or less effectively from home. Inevitably, the phenomenon has become controversial on a number of fronts. Does working from home improve quality of life by cutting out commuting, or does it erode the boundary between work and leisure to the detriment of the latter? Are home-workers environmentally responsible, or are they reckless towards the livelihoods and institutions that rely on their presence in an office? Is it only the insufferable hipster laptop class that can enjoy the new possibilities, or only an older generation that luxuriates in large studies? Does working from home improve accessibility to certain jobs, or does it rob junior workers of opportunities to learn from their peers and their seniors? What kind of TW&T are you?

More attention has been paid to whether we should work from home than to whether we may work from home. This was understandable in March 2020, when there seemed to be little choice. But now we can reflect. Planning law regulates the use of land, including the use of one’s home. The change in the use of land since this time two years ago has been enormous. It would be odd if the law had nothing to say about this.

The issue arose in a recent High Court case, Sage v Secretary of State for Housing, Local Government and Communities (sic) [2021] EWHC 2885 (Admin). Before we look at the case, it is helpful to set out some of the relevant law and policy provisions. There is nothing very complicated.

Section 57(1) of the Town and Country Planning Act 1990 sets out the general rule that “planning permission is required for the carrying out of any development of land.” Section 55(1) gives the general definition of “development”: “the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.” It is the last part that is relevant to us. So our starting-point is that, if you want to make a material change in the use of a building or land, you need planning permission.

Section 55(2) provides exceptions to the definition of development. One of these is as follows, in section 55(2)(d):

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

So, if you want to make a change to the use of your home, there are two questions. First: Is the change material? Second: Is the new use incidental to the enjoyment of your home as a home? If the change is material, and the new use is not incidental, you need planning permission. If the change is not material, or the new use is incidental, you do not need planning permission.

In order to answer these questions in the context of a particular case, we need to flesh out the two rather obscure terms, material and incidental. Judges have opined on the meaning of each of these terms and others that are of importance in planning law. However, this is not very helpful to laypeople, who need practical advice in an accessible form. To this end, the government publishes Planning Practice Guidance online alongside the National Planning Policy Framework, which is the government’s planning policies for England.

Each piece of Planning Practice Guidance addresses a different issue. One piece of the Guidance is entitled When is permission required? This contains two passages that are helpful in our context. First, there is a passage entitled When does a change of use require planning permission? The passage is as follows:

A change of use of land or buildings requires planning permission if it constitutes a material change of use. There is no statutory definition of ‘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 is a matter of fact and degree and this will be determined on the individual merits of a case.

This gives us limited guidance about what material means.

Second, there is a passage entitled Do I need planning permission to home work or run a business from home? The passage is as follows:

Planning permission will not normally be required to home work or run a business from home, provided that a dwelling house remains a private residence first and business second (or in planning terms, provided that a business does not result in a material change of use of a property so that it is no longer a single dwelling house). A local planning authority is responsible for deciding whether planning permission is required and will determine this on the basis of individual facts. Issues which they may consider include whether home working or a business leads to notable increases in traffic, disturbance to neighbours, abnormal noise or smells or the need for any major structural changes or major renovations.

This first sentence of this paragraph appears to address the term incidental, while the phrase in brackets describes the term material.  The second and third sentences appear to be of general application. The overall impression that this paragraph makes is that the two questions whether a new use of land is incidental to the use of a home as a home and whether a change of use is material are two ways of looking at the same question, and that the kinds of factors relevant to answering that question have to do the impact of the change of use on others in the area. Based on this paragraph, you could assume that planning permission to work from home would not be required if the change did not disturb the neighbours.

Finally, if you want to confirm that how you are using your home is lawful, you can apply to your local planning authority for a certificate of lawful use under section 191 of the Town and Country Planning Act 1990. If the authority refuses the application, you can appeal under section 195 to the Secretary of State (for Levelling Up, Housing and Communities). The appeal would be considered by an Inspector on behalf of the Secretary of State. If the Inspector dismisses your appeal, you can make a further appeal to the High Court under section 288. An application to appeal in this way requires permission from a judge to proceed to a full hearing, based on the merits and importance of the appeal.  

That is the background. On with our case.

Ricki Sage is a personal trainer who lives in Beckenham. He has a shed in his garden that contains, among other things, gym equipment. Starting in 2016, Mr Sage’s clients would come to his home and use the shed and the equipment in it. Clients would access the garden and the shed from a passage between the house and the neighbouring house. Mr Sage did not apply for planning permission to use his home in this way, presumably because he did not think he needed it. Instead, he applied to his local planning authority, the London Borough of Bromley, for a certificate of lawful use to confirm that his use of his property was lawful. Bromley rejected the application. Mr Sage appealed to the Secretary of State. 

The Inspector described the issue that he had to decide as follows:

whether the appellant has shown that use of a residential outbuilding as a one-to-one personal training studio is ancillary to the residential use of the dwelling and has not amounted to a material change of use requiring planning permission.

We can see here the two issues we identified earlier, although the statutory term incidental has been replaced with the word ancillary.

The Inspector referred to the passage of Planning Practice Guidance entitled Do I need planning permission to home work or run a business from home? and focussed on the issue of noise highlighted in that passage. The Inspector considered that there was no or negligible noise resulting from the use of the property for personal training. The Inspector was more concerned by the clients’ comings and goings, using the passageway between the properties and arriving and leaving by car. He said the following about this:

Given the residential setting, this is likely to have caused a noticeable increase in general noise and disturbance in and around the property. Consequently having regard to the number, frequency and duration of the training sessions the studio use is materially different in character to use as a home gym by occupiers of the dwelling and it has appreciably changed the manner in which the property is being used.

The Inspector’s conclusion was that using the shed and garden for personal training sessions did constitute a material change of use of Mr Sage’s home. His appeal was dismissed.

Mr Sage responded to this decision by making a second application to Bromley for a certificate of lawful use. In this application, Mr Sage intended to address the deficiencies of his first application, which he considered had been rejected solely because of the disturbance caused by the comings and goings of his clients. He provided the hours in which his property was accessed by clients, the means of transportation that his clients used, letters from neighbours stating that they were not disturbed by any noise from his clients, and a report by an acoustics expert stated that the clients’ arrival and departure created no discernible noise or disturbance.

Bromley rejected Mr Sage’s second application. Having asked local residents, it found that the opinion that Mr Sage’s clients’ comings and goings caused no disturbance was not universally shared. Based on the information it had gathered and that provided by Mr Sage, Bromley considered that the use of the shed and garden for personal training had “the potential to have a negative impact on existing residents.” As such, that use was sufficiently different in character from the use of Mr Sage’s home as a home to change the character of the use of the land.

The Inspector who considered Mr Sage’s appeal against the refusal of his second application said that the issue was whether Mr Sage’s use of his shed and garden was “incidental to the residential use of the dwelling or represents a material change in that use, that requires planning permission.” The Inspector accepted that the impact of the personal training in terms of noise was negligible. However, this was not the only issue. In her decision letter, the Inspector said as follows:

18. I acknowledge that the training sessions themselves appear to be well controlled, and this is a view supported by the acoustic report and evidence provided by local residents about the lack of noise. Nonetheless to my mind, noise is not the only factor to consider. The comings and goings that arise from at least 4 to 5 clients a day, in addition to those individuals who would usually be expected to visit a dwelling, can also cause disturbance to neighbours. Any disturbance is exacerbated by the tight knit design of the properties and need for callers to use the narrow access and small rear garden, which is clearly visible [from] the rear windows and gardens of the neighbouring dwellings.

19. For the above reasons, in this compact residential setting, I do not consider that the scale of the business related training sessions, both at the time of the application, and at the reduced level, can reasonably be considered to be either de minimis or incidental to the enjoyment of the dwelling house. Accordingly, a mixed use has occurred. I am satisfied that this finding accords with the advice found on the Planning Portal and referred to in the appellant’s statement.

20. Consequently, in the particular circumstances of this case, I find that as a matter of fact and degree, the use of the outbuilding for business related training sessions on this scale, is not incidental to the use of the dwelling and results in an overall change in the character of the property.

In summary, the Inspector decided that the level of disturbance other than noise created by the personal training, primarily the visible passage of clients into and out of Mr Sage’s property, means that the use of the property for this purpose was a material change of use and was not incidental to Mr Sage’s use of his home as a home. It followed that Mr Sage’s appeal was dismissed.

Mr Sage appealed against this decision to the High Court. He was granted permission to proceed to a full hearing by Timothy Mould QC, sitting as a Deputy High Court Judge. Mr Mould said as follows:

This claim raises an arguable issue about the materiality of environmental and amenity considerations to the question whether the use of a building within the curtilage of a dwelling house is for a purpose incidental to the enjoyment of the dwellinghouse as such, within the terms of section 55(2)(d) of the Town and Country Planning Act 1990.The issue is of some importance given the increasing use of the home as a place of work and business. The court will be assisted by the parties’ submissions on the correctness in law of the current Planning Practice Guidance on that question.

Mr Sage appealed against the second Inspector’s decision on three grounds. First, he argued (or his barrister, Kate Olley, argued on his behalf) that visual disturbance was an immaterial consideration in this case, and that the Inspector had erred by basing her decision on this. Second, he argued that the Inspector’s reasoning was legally inadequate: in particular, she had not explained why it was more visually disturbing for a client to visit Mr Sage’s home than for a friend to do so. Third, he argued that the Inspector’s decision on disturbance was irrational because the evidence was not capable of supporting a conclusion that Mr Sage’s use of his land disturbed anyone, either aurally or visually.

The judge who heard the appeal was Sir Duncan Ouseley, a retired High Court judge with experience in planning law who stills hears cases occasionally. He rejected Mr Sage’s first ground of appeal. It is true that the passage of Planning Practice Guidance entitled Do I need planning permission to home work or run a business from home? does not list visual disturbance as a relevant issue. However, the list is non-exhaustive. Visual disturbance was not immaterial. The judge also rejected Mr Sage’s second ground of appeal. In the context of the decision letter as a whole, the nature and extent of the visual disturbance caused by Mr Sage’s clients was perfectly well explained. Finally, the judge rejected Mr Sage’s third ground of appeal. The Inspector’s treatment of the issue of visual and aural disturbance was well within the scope of permissible planning judgment. If she erred, it was in favour of Mr Sage. It followed that Mr Sage’s appeal was dismissed.

Having dispensed with the appeal, the judge dealt with two remaining matters. First, he addressed serious deficiencies in Mr Sage’s application form for a certificate of lawful use, which could have resulted in his case failing even if one of his legal arguments had succeeded.

Second, and it appears that this is why Mr Mould granted permission to appeal, the judge addressed the passage of Planning Practice Guidance entitled Do I need planning permission to home work or run a business from home? The passage (again) states as follows:

Planning permission will not normally be required to home work or run a business from home, provided that a dwelling house remains a private residence first and business second (or in planning terms, provided that a business does not result in a material change of use of a property so that it is no longer a single dwelling house). A local planning authority is responsible for deciding whether planning permission is required and will determine this on the basis of individual facts. Issues which they may consider include whether home working or a business leads to notable increases in traffic, disturbance to neighbours, abnormal noise or smells or the need for any major structural changes or major renovations.

Two things about this passage concerned the judge. First, the first sentence is a confusing statement of the law. Just because a property is “a private residence first and business second” does not mean that the business use will be “incidental” to the use of the home as a home. And the two distinct questions, of material change and incidental use, are blurred. Second, the third sentence suggests that the focus of these questions is on environmental impact such as might affect neighbours. This is misleading. Environmental impact may be one of many factors. As the judge said at paragraph 82: “The crucial test is whether there has been change in the character of the use.” This may be measured by having regard to disturbance produced, but no disturbance is required is order for land to be used differently from before.

This is important for any home-workers whose conventional place of work would be an office. Such work, in general, would create significantly less disturbance than personal training, and would not tick any of the boxes in the guidance. A computer-based home-worker could easily infer from the guidance that they would never require planning permission to work from home. Following this High Court decision, that is in doubt.

The guidance, as criticised by the judge, gives the impression that the threshold for requiring planning permission in these cases is higher than it is. Your home can be a home first and a place of work second, where the work is imperceptible by neighbours, and still undergo a material change of use from being purely a home and the business use not be incidental to the home use. Of course, if disturbance is not the only or even the primary factor, the question is: what are the factors to be taken into account? Does the number of monitors I set up in my home office determine whether my move to working from home is a material change of use? Or the number of days each week that I work from home? Does the size of my home office affect whether my use of part of my home as an office is incidental to the use of my home as a home? Is it about space, or time? If neither, what can we go by?

These are exactly the questions that judges in planning cases regularly decide and that planning professionals answer. We could conduct a review of the case-law to anticipate what the answers might be. But, as the judge pointed out, what is considered a normal use of a home has changed a great deal recently. Principles from the past may not be directly applicable to today’s cases. The millions of people who now work from home at least some of the time require practical, accurate and up-to-date guidance from the government so that they do not have to pay lawyers or involve themselves in litigation like Mr Sage did to ensure that they are in a legally sound position. Hopefully, the DLUHC will update its guidance so that it accurately reflects the law as it applies today and so that we can all know whether we need to ask the council’s permission to sound-proof the spare bedroom.

Finally, we have to recognise a further set of questions. If the factors determining how I can use my land go beyond the use’s effect on others, what is the justification for that limitation of my property rights? What business does the state have controlling what I do quietly within my four walls? Balancing the interests of the individual proprietor with the interests of the community is the classic rationale for planning law. The answer to the question is that the community to whose interests my rights must sometimes submit is broader that the immediate geographic area around my home. My choice to work from home affects the cafés and the air quality around my now-quiet office. It can contribute to changes in house prices; it could influence investment in infrastructure. If the government wants to put its thumb on the scales of the debate alluded to in my opening paragraph – is working from home to be encouraged or discouraged, and under what circumstances? –  one of the easiest ways it can do so is by simply making it unlawful for me to work from home. Whether this would be an abuse of state power or an appropriate displacement of the market from its decision-making role is a debate for another time. But we can probably all agree that it would be best if planning policy at least knew what it was doing.

What I’ve been listening to this week…

After the clocks go back, it suddenly feels like Advent, but it is three weeks until I can put on those albums. So I have been looking for other warming, comforting music. This week, it has been Fauré’s Cantique de Jean Racine, which may as well be Advent music to me. Who knows why, but Bruce Springsteen has been really hitting the spot too. 

And I finally saw No Time To Die, but I can’t talk about that.