Dwellinghouse — Owner keeping 44 dogs — Enforcement notice — Whether material change of use — Whether use incidental to enjoyment of dwellinghouse as such — Whether reasonable to normal enjoyment — Whether subjective or objective test in determining incidental uses
By an
enforcement notice dated October 30 1987 the second respondents, Montgomery
District Council, alleged that the appellant had caused the material change of
use of her dwellinghouse at Sycamore Cottage, Pentre-Llymry, Llanfyllin, by the
keeping of some 44 dogs. The notice required her to reduce the number to six.
The appellant appealed the decision of Mr Malcolm Spence QC (sitting as a
deputy judge of the Queen’s Bench Division) on February 20 1989, who had
dismissed her appeal against the decision of the first respondent who, by his
inspector, had dismissed her appeal against the enforcement notice. On behalf
of the appellant it was contended that (1) the keeping of the dogs as a hobby
without any commercial element was incidental to the enjoyment of the dwelling
within the meaning of section 22(2)(d) of the Town and Country Planning
Act 1971 (section 55 of the Town and Country Planning Act 1990); (2) the
inspector was wrong in qualifying incidental to the enjoyment of the dwelling
by incorporating ‘reasonably to the normal enjoyment’ thereof; and (3) a
subjective not objective test must be used in deciding what is incidental to
the use of a dwelling.
was dismissed.
The
appellant’s approach to section 22(2)(d) gave insufficient weight to the
words ‘as such’. These words make the phrase mean ‘of and incidental to the
enjoyment of the dwellinghouse as a dwellinghouse’: see pp 92-93 and 97. The
inspector was entitled to have regard to what people normally do in a
dwellinghouse to decide whether, as a matter of fact and degree, the keeping of
the large number of dogs was incidental and exceeded what could reasonably be
regarded as incidental. Support for an objective standard in deciding what is
reasonable is found in the other subparagraphs of section 22(2) of the 1971 Act:
see pp 94 and 97.
to in the judgments
Emin v Secretary of State for the Environment [1989] JPL 909
Appeal against
decision of Mr Malcolm Spence QC
This was an
appeal against a decision of Mr Malcolm Spence QC, sitting as a deputy judge of
the Queen’s Bench Division (February 20 1989), who dismissed an appeal by the
appellant against a decision of the first respondent, the Secretary of State
for Wales, by his inspector, who had dismissed the appellant’s appeal against
an enforcement notice issued by the second respondents, Montgomery District
Council.
Sullivan QC and Peter Village (instructed by Sharpe Pritchard) appeared for the
appellant, Dr M P Wallington.
(instructed by the Treasury Solicitor) appeared for the first respondent, the
Secretary of State for Wales.
respondents, Montgomery District Council, did not appear and were not
represented.
following judgments were delivered.
SLADE LJ: Pursuant to leave given by Woolf LJ on July 6 1989, Dr M P
Wallington appeals from a judgment delivered on February 20 1989 by Mr Malcolm
Spence QC, sitting as a deputy High Court judge, in a planning matter. The
first respondent to the appeal is the Secretary of State for Wales. The second
respondents are Montgomery District Council (‘the council’). They have not been
represented in this appeal.
Mr Jeremy
Sullivan QC, in opening the appeal, submitted that it raises an important
question of principle concerning the right of a householder to pursue his own
hobby in his own house without constraints under planning legislation, whatever
other constraints may be imposed on him by the general law or other statute
law.
The appellant
lives at Sycamore Cottage, Pentre-Llymry, Llanfyllin (‘the premises’). She took
up residence there in 1982 with about 30 dogs. Since then she has continued to
keep a large number of dogs there, not for commercial purposes but as a hobby.
The dispute arises out of an enforcement notice relating to the dogs, dated
October 30 1987, which the council, as local planning authority, served on the
appellant in purported exercise of their power to issue enforcement notices
under section 87 of the Town and Country Planning Act 1971 (now section 172 of
the Town and Country Planning Act 1990). This notice alleged that there had
been a breach of planning control after the end of 1963 on the premises
consisting in
the carrying
out of development by the making of the material change in the use of the land
described in Schedule 2 below, without the grant of planning permission
required for that development.
The notice
required that the steps specified in Schedule 3 be taken in order to remedy the
breach. The description of the alleged material change in the use of the land
contained in Schedule 2 was:
A material
change of use has taken place in that a large number of dogs are kept at the
premises namely 44 dogs as at 4th September 1987.
Schedule 3
specified the steps required to be taken as being:
Reduce the
number of dogs kept at the premises from 44 (or the present number if not 44)
to 6.
The appellant
appealed to the Secretary of State against the enforcement notice pursuant to
the rights conferred on her by section 88(2) of the 1971 Act, as amended (now
section 174(2) of the 1990 Act) which, so far as material, provided:
An appeal may
be brought on any of the following grounds —
(a) that planning permission ought to be
granted for the development to which the notice relates or, as the case may be,
that a condition or limitation alleged in the enforcement notice not to have
been complied with ought to be discharged;
(b) that the matters alleged in the notice do
not constitute a breach of planning control;
(c) that the breach of planning control alleged
in the notice has not taken place;
. . .
(g) that the steps required by the notice to be
taken exceed what is necessary to remedy any breach of planning control or to
achieve a purpose specified in section 87(10) of this Act;
(h) that the period specified in the notice as
the period within which any step is to be taken falls short of what should
reasonably be allowed.
The appeal was
based on all these five grounds.
‘Development’,
for the purposes of the 1971 Act, is defined by section 22 (now section 55 of
the 1990 Act). Subsection (1) contains a general definition:
In this Act,
except where the context otherwise requires, ‘development’, subject to the
following provisions of this section, means 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.
Section 22(2),
however, qualifies that definition of ‘development’ by providing that:
The following
operations or uses of land shall not be taken for the purposes of this Act to
involve development of the land, that is to say —
There then
follow six subparagraphs, of which subpara (d) is particularly relied on
by the appellant. It reads:
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;
An inspector
appointed by the Secretary of State in the usual way held an inquiry into the
appeal, at which oral evidence was taken on oath, and he inspected the premises
on May 10 1988. He dismissed the appeal by a decision letter dated August 9
1988. In paras 4 and 5 he described the site and surroundings as follows:
4. Sycamore
Cottage is located in the hamlet of Pentre-Llymry. It is reached from the A490
road by a narrow rough track about 80m long leading past the dwellings known as
Willowbrook and Tanybryn and also serves Bryn Hafod. The building is a detached
traditional-style rural dwelling and occupies a site of about 0.1 ha which is
divided into a domestic garden area, a hard-surfaced area alongside the front
of the dwelling where there are several wooden kennel structures, and an open
paddock used as an exercise area and bounded by wire mesh fencing. The premises
cannot be seen from the main road, which is about 40m distant. There are
several haphazardly-sited dwellings in the vicinity of the appeal premises, the
nearest being about 34m from the boundary. Bordering the access lane and part
of the appeal site itself there is agricultural land on which sheep and cattle
are kept.
5. At the
date of the inquiry 41 dogs were kept at the premises. 16 of these were kept in
wooden pens inside the dwelling and the remainder in the wooden kennels
outside. The latter are a series of individual structures each built to house 2
dogs together and are in good condition. All the bitches are spayed and no
breeding takes place.
Having then
summarised the planning history and the respective cases for the appellant, the
planning authority and the interested persons, the inspector expressed his
conclusions. With regard to the appeal on ground (c), he said (para 25):
There is no
dispute that a large number of dogs — 41 at the date of the inquiry — is kept
at the premises. The appeal on ground (c) therefore fails.
The main question
at issue before the inspector was whether the keeping of
he said (para 26):
On ground (b)
there is no dispute that the dogs are kept entirely as a hobby and the activity
has no commercial element. Whether the activity is being carried on in breach
of planning control therefore turns in my opinion on whether it is reasonable
to regard it as incidental to the occupation of the dwelling or whether in fact
and degree it is so significant as to constitute a separate use. In relation to
the normal use of residential property the intensity of its use in this
instance for accommodating dogs is so extraordinary that I consider there has
been a substantial alteration in its character to the point that a material
change of use has taken place. Though I accept that in this instance the dogs
are only kept as a hobby I consider the Council was correct, bearing in mind
the scale of physical provision made for the activity, in requiring planning
permission to be sought for it and for it to conclude that a breach of planning
control had taken place. The appeal on ground (b) therefore fails.
I pause to say
that Mr Sullivan, on behalf of the appellant, has laid stress on the
inspector’s use of the word ‘reasonable’ in the second sentence of this
paragraph and of the phrase ‘normal use’ in the third sentence. The
significance of this point will appear later.
In paras
27-29, the inspector dealt with ground (a) and the deemed planning
application. He noted that in the context of the appeal the council were
concerned only with noise. His conclusion was that the presence of the
appellant’s dogs in large numbers was likely to result in the type of noise
which was unacceptably intrusive, close to other dwellings. He therefore
dismissed the appeal on ground (a) and declined to give planning
permission on the application deemed to have been made under section 88B(3).
As to ground (g),
he said (para 30):
On ground (g)
it appears to me that a very substantial reduction in the number of dogs kept
at the premises is necessary if the property is to be restored to a state
appropriate to a normal domestic household. While I am mindful that even one
noisy dog may cause distress to neighbouring residents it seems to me that in
issuing the notice the council had regard to the appellant’s concern for dogs.
Although I accept that any specific limiting number would be arbitrary I
consider that while 6 dogs would exceed the number normally kept in domestic
circumstances they would nevertheless enable the appellant to engage in her
hobby interest with considerably less chance of disturbance to others. In the
light of this, the appeal on ground (g) fails.
In para 31,
the inspector rejected ground (h).
The appellant
then instituted proceedings in the High Court by way of challenge to the
inspector’s decision to dismiss her appeal, uphold the enforcement notice and
refuse to grant planning permission. Her original application was made under
section 245 of the 1971 Act, but by leave of the deputy judge and without
objection from either of the respondents, it was amended at the hearing so as
to become an application made under section 246 for an order that the decision
of the Secretary of State notified by the letter of August 9 1988 be remitted
to him for rehearing and determination by him together with the opinion or
direction of the court. The deputy judge dismissed her amended application by
his decision of February 20 1989. That is the decision from which she now
appeals to this court.
The wording of
section 22 of the 1971 Act in my opinion made it necessary for the inspector to
consider two separate questions. First, had a ‘material change in the use of’
the premises, within the meaning of section 22(1), taken place by reason of the
fact that a large number of dogs were being kept there? This was the ground upon which the council in
their enforcement notice had
If, though only if, the answer to the first question was in the affirmative,
the inspector had then to consider the second question, namely whether the use
of the premises for the keeping of dogs in large numbers constituted the use of
the premises ‘for any purpose incidental to the enjoyment of the dwellinghouse
as such’ within the meaning of section 22(2)(d). The inspector, in para
26 of his decision, in effect answered the first question in the affirmative
but answered the second question in the negative. He thus concluded that the
use of the premises for the relevant purpose did not fall within the exemption
conferred by section 22(2)(d).
The appellant,
by her notice of appeal and in the argument of her counsel before this court,
has not sought to challenge the inspector’s decision on the first point, namely
that the keeping by her of a large number of dogs on the premises had on the
particular facts given rise to a material change of use. The challenge to the
inspector’s decision is based exclusively on the asserted applicability of the
exemption conferred by section 22(2)(d). The essence of this challenge
is well and succinctly summarised in the first three grounds of the notice of
appeal, which read:
(1) The First Respondent’s Inspector erred in finding
that the keeping of 44 dogs by the Applicant where ‘there is no dispute the
dogs are kept entirely as a hobby and the activity has no commercial element’
was not incidental to the enjoyment of her dwellinghouse as such, and in
rejecting her argument that the use did not therefore amount to development by
virtue of section 22(2)(d) of the [1971 Act].
(2) The Inspector’s approach to section 22(2)(d)
erroneously qualifies the words ‘incidental to the enjoyment of the
dwellinghouse as such’ by expressly or impliedly incorporating words to the
following effect:
‘reasonably
to the normal enjoyment of a dwellinghouse as such’.
(3) The Inspector erroneously applied an
objective rather than a subjective standard in considering whether the
Applicant’s hobby was incidental to the use of her dwellinghouse as such.
The fourth and
last ground in the notice of appeal has not been pursued in argument before
this court.
Mr Sullivan
developed each of the first three grounds, which are closely connected with one
another, in a very skilful argument. As he observed (I think rightly) the
inspector, in considering the applicability or otherwise of section 22(2)(d),
appears to have regarded the question as being whether as a matter of fact and
degree it was reasonable to regard the relevant activity as the use of
the premises for a purpose incidental to the enjoyment of the dwellinghouse as
such. In Mr Sullivan’s submission, there was no justification for the
introduction of any such objective test. The section does not use the word
‘reasonable’, nor does it use the word ‘normal’, which the inspector introduced
in both paras 26 and 30 of his decision. To import the concept of
‘reasonableness’ or ‘normality’, it was suggested, is to put an impermissible
gloss on the wording of the section; if Parliament had wished to qualify
section 22(2)(d) in this manner it would have done so explicitly.
The standard
applied by the inspector in considering section 22(2)(d), it was
submitted, is erroneous because, by introducing a test of reasonableness or
normality or both, it would place unjustifiable restrictions on the enthusiast
who has an eccentric hobby of his own. It is not the function of the planning
system to control activities of this kind. If and so far as his hobby may cause
a nuisance to his neighbours, statutory and common law outside the planning
legislation will give them ample protection.
Mr Sullivan
accepted that in most, if not all, cases the use of premises for commercial
purposes will not constitute use of them for a purpose ‘incidental
to the enjoyment of the dwellinghouse as such’; he had no need to submit
otherwise, since the appellant’s use has been wholly non-commercial. He also
accepted that in some circumstances, even in the case of the non-commercial use
of premises by way of a hobby, the stage might come when, as a matter of fact
and degree, the scale of the use for the purpose of a hobby had become so
dominant that it could not be said that it was ‘incidental to the use of the
dwellinghouse as such’. Subject to this qualification, however, he submitted
that any activity whatever, however intense and however different from ordinary
living purposes, would fall within the exemption conferred by section 22(2)(d)
provided only that it was conducted on a non-commercial basis and the occupier
credibly asserted that he or she was enjoying it as a hobby. In the present
case, since the inspector had accepted that the use of the premises by the
appellant for the purpose of keeping a large number of dogs was non-commercial
and by way of a hobby, and it had not become the dominant use of the
dwellinghouse, the use, it was said, must qualify for the exemption. This was
the essence of Mr Sullivan’s principal submission on this appeal.
For all its
attractive presentation, it is not, in my judgment, well founded. First and
foremost, as Mr John Laws submitted on behalf of the Secretary of State, Mr
Sullivan’s approach to the construction of section 22(2)(d) gives
insufficient weight to the words ‘as such’. If the phrase used in the subsection
had been simply ‘of and incidental to the enjoyment of the dwellinghouse’, its
effect might have been different. As drafted, however, the phrase must mean ‘of
and incidental to the enjoyment of the dwellinghouse as a dwellinghouse‘.
The mere fact that an occupier may genuinely regard the relevant activity as a
hobby cannot possibly suffice to prove by itself that the purpose is incidental
to the enjoyment of the dwellinghouse as a dwellinghouse. The deputy judge put
the point well in his judgment (at pp 8F-9C):
I find it
impossible to hold, as a matter of law, that because a use is a hobby therefore
it must follow that it is incidental to the enjoyment of the dwellinghouse.
This concept confuses the enjoyment of a dwellinghouse as such and the
enjoyment of the occupier. I emphasise the words in section 22(2)(d) ‘as
such’ and that what is under consideration is whether it is incidental to the
enjoyment of the dwellinghouse as such. The occupier may well be enjoying him
or herself in some way which is not related to the dwelling itself as a
dwelling. The proper test, in my judgment, is to bear in mind, maybe strongly
in mind, that the activity is a hobby rather than commercial at the time when
weighing up all the factors necessary to determine the question of fact as to
whether the use is, or is not, incidental to the enjoyment of the dwellinghouse
as such.
Furthermore,
to construe the phrase ‘incidental to’ as meaning no more than ‘not dominant’
in my judgment gives inadequate weight to the phrase. The wording of section
22(2)(d), in my judgment, contemplates that the dwellinghouse in
question at all material times remains used as a dwellinghouse, not as anything
else, and that the other use in question is no more than ancillary to that use
as a dwellinghouse.
In my
judgment, the inspector was perfectly entitled to have regard to what people
normally do in dwellinghouses to decide whether, as a matter of fact and
degree, on the one hand (a) the keeping of the appellant’s 40 or more dogs
should reasonably be regarded as incidental to the enjoyment of her
dwellinghouse as a dwellinghouse or, on the other hand, (b) the number of dogs
kept by her exceeded what could reasonably be so regarded. On the evidence he
decided in accordance with the latter alternative and, subject to
wrong.
In concluding
that any authority or court has to apply an objective standard in considering
the relevance or otherwise of section 22(2)(d) to a given state of facts,
I derive some support from other subparagraphs of section 22(2) which plainly
require the application of such a standard. By virtue of section 22(2)(a),
for example, ‘the carrying out of works for the maintenance, improvement or
other alteration of any building’ will not be taken to involve development of
the land. Nor, by virtue of section 22(2)(e), will ‘the use of any land
for the purposes of agriculture’. The mere fact that the householder may
himself or herself genuinely regard an operation on land as falling within one
or other of these categories cannot in any way conclude the matter.
Mr Sullivan
rightly pointed out that section 22(1) and section 22(2)(d) specifically
contemplate that a use for a new purpose may constitute ‘use for a purpose incidental
to the enjoyment of a dwellinghouse as such’, even though such use has involved
a material change in the use of the building. It followed, in his submission,
that the legislature must have contemplated that use for a purpose not normal
for most domestic households could fall within section 22(2)(d); any
other construction would have emasculated the subsection to such an extent as
to render it more or less nugatory. I do not think this does follow. It is
possible to imagine a number of ordinary activities or operations, other than
hobbies, which might be capable of constituting material development but might
yet fall within section 22(2)(d) — for example, the extension of the
garden of a dwellinghouse by the incorporation of land previously used for agriculture.
On behalf of
the appellant we were referred to a number of ministerial decisions confirming
the application of section 22 of the 1971 Act or its statutory predecessor to
the use of premises for hobbies. The references to these decisions are [1969]
JPL 217; [1969] JPL 413; [1971] JPL 642; [1977] JPL 192; [1977] JPL 335; [1985]
JPL 201; and [1988] 4 PAD 323. A detailed analysis of these decisions will not,
I think, be helpful. None of them is binding on this court and all depended on
their special facts. Mr Sullivan submitted that the approach of the inspector
in the present case was inconsistent with the approach previously adopted by
inspectors as exemplified in these decisions and that it is important that the
Secretary of State and his inspectors should maintain a consistent approach in
applying section 22. No doubt consistency is desirable in principle, and I
would accept that one or two of the decisions mentioned (for example [1971] JPL
642, which also related to the keeping of dogs) do not on the face of them
tally very readily with the inspector’s decision in the present case. It is,
however, inevitable that, when inspectors up and down the country have to
adjudicate on the applicability of the somewhat imprecise formula embodied in
section 22(2)(d), they may from time to time reach conclusions which on
the face of them are not entirely consistent with one another. I emphasise ‘on
the face of them’ because each case has to be decided on its own facts. The
formula makes it necessary to consider whether the relevant purpose is
incidental to the enjoyment of ‘the dwellinghouse’ (ie the particular
dwellinghouse in question) as such, not any dwellinghouse. The decisions
certainly make it clear that if the relevant purpose is by way of a hobby, this
makes it much easier for the householder to show that the use falls within
section 22(2)(d), while in contrast a commercial use is, at best,
unlikely to do so. In my opinion, however, they lend no support to Mr Sullivan’s
bold general submission that save in the case where the user has become the
dominant use of the premises, the carrying on of a hobby will always fall
within the subsection.
If I
understood him correctly, the decisions to which I have referred were the only
relevant decisions of inspectors dealing with the application of section 22 to
hobbies which his industry and that of his junior had succeeded in unearthing;
no decisions of the court, apart from that of Mr Spence QC in the present case,
relating to this point had been discovered. This may in itself be some
indication that the carrying on of a hobby will not usually involve a material
change of use, so that in the case of the more usual hobbies questions
concerning the application of section 22(2)(d) will not generally arise.
If, however, on somewhat unusual facts such as the present, an inspector has
felt obliged to conclude that the carrying on of a hobby has given rise to a
material change in the use of land, he may perhaps be right to approach with a
degree of caution a submission that the use is for a purpose incidental to the
enjoyment of a dwellinghouse as such.
We were also
referred to a decision of Sir Graham Eyre QC, sitting as a deputy High Court
judge, in Emin v Secretary of State for the Environment [1989]
JPL 909. This decision concerned the criteria set down in Class I.3 of the
General Development Order 1977, which dealt with development within the
curtilage of a dwellinghouse ‘required for a purpose incidental to the
enjoyment of the dwellinghouse as such’. A distinction may be drawn between the
wording of that order and of section 22(2)(d) of the 1971 Act which does
not include the word ‘required’. Nevertheless, I regard certain observations of
Sir Graham Eyre as helpful and apposite in the present case. He said (at p
913):
The fact that
such a building had to be required for a purpose associated with the enjoyment
of a dwellinghouse could not rest solely on the unrestrained whim of him who
dwelt there but connoted some sense of reasonableness in all the circumstances
of the particular case. That was not to say that the arbiter could impose some
hard objective test so as to frustrate the reasonable aspirations of a
particular owner or occupier so long as they were sensibly related to his enjoyment
of the dwelling. The word ‘incidental’ connoted an element of subordination in
land use terms in relation to the enjoyment of the dwellinghouse itself.
Finally, I
should mention another point made on behalf of the appellant. In her notice of
appeal, it has been submitted as ground (4) that ‘the inspector erred in
adopting an arbitrary figure, of six dogs, based upon no evidence as
representing the number of dogs which could be kept by the applicant
incidentally to the enjoyment of her dwellinghouse as such’. The deputy judge
dealt with this submission fully, and to my mind convincingly, at pp 9D-14B and
p 16D-G of his judgment. On this appeal, Mr Sullivan did not pursue this ground
as such. He did, however, point out that the inspector had expressly accepted
(in para 30) that any ‘specific limiting number’ would be ‘arbitrary’. The
figure of six dogs specified by the council in their enforcement notice, and
confirmed by the inspector in his submission, illustrates the difficulty of
applying an objective approach to the application of section 22(2)(d).
This was a fair debating point. Nevertheless, I agree with the deputy judge
that the inspector has not concluded that the boundary line is six dogs. As he
put it (p 16E):
He has
concluded that the 41 dogs constitute a material change of use requiring
planning permission and then he has gone on, in order to be sure not to over
enforce, to agree with the planning authority that the requirement section of
the enforcement notice should enable up to 6 dogs to be kept on the premises.
The inspector
did not, in my opinion, misdirect himself in law either as to that point or any
other point. In my judgment, on the evidence before him he
stated above, which substantially accord with those advanced by Mr Laws, I
think the deputy judge reached the right conclusion and I would dismiss this
appeal.
NICHOLLS
LJ: I agree that, for the reasons given by Slade LJ
and Farquharson LJ, this appeal should be dismissed.
FARQUHARSON
LJ: In the year 1982 the appellant went to live at
Sycamore Cottage, Pentre-Llymry, Llanfyllin in Powys. She was accompanied by 30
dogs. During the following years the number of dogs increased until the autumn
of 1987, when there were 44 living within the curtilage of the cottage. These
matters became known to the second respondents, who are the local planning
authority, and an enforcement notice dated October 30 1987 was served upon the
appellant. The breach of planning control alleged in the notice was that a
material change of use had taken place in that 44 dogs were kept at the
premises, and the appellant was required to reduce that number to six within a
period of six months.
The appellant
appealed to the minister against the enforcement notice pursuant to the
provisions of section 88 of the Town and Country Planning Act 1971, relying
specifically on the grounds set out in paras (a), (b), (c),
(g) and (h) of section 88(2) of the 1971 Act. The minister
appointed an inspector who held an inquiry into the appeal in May 1988, but he
dismissed the appeal and upheld the enforcement notice. There was a further
appeal to the High Court under section 246 which was heard by Mr Malcolm Spence
QC, sitting as a deputy High Court judge, on February 20 1989. That appeal was
also dismissed and the appellant now challenges the decision of the inspector
and the deputy judge before this court.
There is no
dispute that the appellant keeps the dogs at her home as a hobby and not for
any commercial purpose. By way of general presentation of this appeal, Mr
Sullivan, on behalf of the appellant, submits that in this country everyone is
entitled to pursue his or her own particular hobby in his or her own home. The
hobby may be eccentric, absurd, or even childish, but it is for the householder
to use his premises as he will within the provisions of the relevant statutes
and not for a planning officer to dictate or limit the type of hobby which may
be pursued.
By section
87(3)(a) of the Act (now re-enacted in section 172(3)(a) of the
Town and Country Planning Act 1990) there is a breach of planning control if
development has been carried out without the grant of planning permission. It
is the appellant’s case that there had been no such development. To determine
this issue it is necessary to consider section 22 of the 1971 Act (now section
55 of the 1990 Act) which provides, inter alia:
(1) . . . ‘development’, subject to the following
provisions of this section, means . . . the making of any material change in
the use of any buildings or other land.
(2) The following operations or uses of land
shall not be taken for the purposes of this Act to involve development of the
land, that is to say —
. . .
(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;
The section
contemplates a two-stage approach, first, has there been any material change in
the use of, in this case, the cottage?
If not, then the enforcement notice is bad and the appellant would be
entitled to succeed. If there has been a material change of user, there will
still not be a development
enjoyment of the dwellinghouse as such. In the argument before us the questions
posed by these two subsections have been taken together, but they should be
dealt with separately. The inspector found that the presence of this large
number of dogs within the curtilage of the cottage did so amount to a material
change of use and for my part I would agree with him. He then went on to find
that the appellant’s user of the cottage does not bring her within the exemption
provided by para (d) of subsection (2).
The basis upon
which the inspector arrived at his decision on the non-application of
subsection (2)(d) has been attacked by Mr Sullivan. In his conclusion at
para 26 of the decision letter the inspector says:
On ground (b)
there is no dispute that the dogs are kept entirely as a hobby and the activity
has no commercial element. Whether the activity is being carried on in breach
of planning control therefore turns in my opinion on whether it is reasonable
to regard it as incidental to the occupation of the dwelling or whether in fact
and degree it is so significant as to constitute a separate use. In relation to
the normal use of residential property the intensity of its use in this
instance for accommodating dogs is so extraordinary that I consider there has
been a substantial alteration in its character to the point that a material
change of use has taken place. Though I accept that in this instance the dogs
are only kept as a hobby I consider the council was correct, bearing in mind
the scale of physical provision made for the activity, in requiring planning
permission to be sought for it and to conclude that a breach of planning
control had taken place. The appeal on ground (b) therefore fails.
Later, at para
30, the inspector stated that a very substantial reduction in the number of
dogs kept at the premises is necessary if the property is to be restored to a
state appropriate to a normal domestic household. Mr Sullivan complains that
these conclusions import two concepts which do not form part of the statutory
provisions; and that the inspector was posing the question he had to answer in
an amended form, namely: ‘Was the user reasonably incidental to the normal
enjoyment of a dwellinghouse as such?’
Mr Sullivan argues that to qualify the word ‘incidental’ by ‘reasonably’
is to restrict its effect, while the injection of the word ‘normal’ before
‘enjoyment of a dwellinghouse’ equally cuts down the breadth of the exemption.
I think Mr
Sullivan’s paraphrase does not do justice to the inspector’s words. He asked
himself whether it was reasonable to regard the activity as incidental to the
occupation of the dwelling or whether in fact and degree it is so significant
as to constitute a separate use. The inspector did not use the words
‘reasonably incidental’. Mr Sullivan may say, as he does, that there is little
difference between the two, but it is not entirely a question of semantics. In
using the antithesis he was posing the correct question.
It is true
that the inspector used the word ‘normal’ in relation to the use of residential
property on a number of occasions, some of which appear in the passages cited.
Like the deputy judge, I take the view that the inspector was using that
expression as a yardstick rather than as part of a definition. The question of
what amounts to use for any purpose incidental to the enjoyment of the
dwellinghouse as such is difficult to answer as appears from the arguments
addressed to us. In approaching that question it is sensible to consider what
would be a normal use of a dwellinghouse although it is not of course
determinative of the question. However, I agree with Mr Sullivan that it is
better if these qualifying expressions are not used and one has regard only to
the actual words of the section.
A further
difficulty with the expression ‘a normal domestic household’ is that it
implicitly applies an objective test. This, argues counsel, unfairly
prejudices the eccentric enthusiast. In considering the appellant’s hobby and
whether it involves a use incidental to the enjoyment of the dwellinghouse, a
subjective standard should be applied. Put in terms based on the present facts
the question should be: ‘Is the presence of and caring for these dogs
incidental to her enjoyment of the dwellinghouse as a
dwellinghouse?’ I find great difficulty
in accepting this contention. It would in effect make the occupier the judge of
whether the user comes within the exclusion provided by subsection 2(d).
Consideration of whether the test is subjective or objective merely complicates
matters.
In my
judgment, the word ‘incidental’ in this context means, as Mr Laws for the
respondent puts it, ‘subordinate in land use terms to the enjoyment of a
dwellinghouse as a dwellinghouse’. The difficulty still remains of applying the
test in practical terms to different situations. Thus, while a hobby might
normally — if I may use the expression — be subordinate to the use of the
premises as a dwellinghouse it may be of such a kind and requiring such space
that the enjoyment of the dwellinghouse, becomes incidental to the indulgence
of the hobby.
On the other
hand, the use of one room in a dwellinghouse as an office or study, even though
it has commercial aspects, could still be regarded as incidental to the
enjoyment of the house as a dwellinghouse.
As in so many
circumstances, it comes down to a question of fact or degree in any particular
case. In answering the question whether the use comes within para (d) of
subsection (2) it is necessary to have regard to a number of matters including
for example:
1. Where is
the dwellinghouse situated? Different
considerations may apply depending on whether it is in the country on the one
hand or in the centre of a town on the other. Sycamore Cottage is in a country
area and reached by a track from the main road but there are a few houses in
its vicinity, one of them being only 34 m from the boundary.
2. What is the
size of the dwellinghouse in the context of the user which is said to be
incidental to its enjoyment. How much ground is included in its curtilage?
3. What is the
nature and scale of the activity which is said to be incidental to the
enjoyment of the dwellinghouse as such?
The more dominant the activity the less likely it is to be described as
incidental. The indulgence of a hobby is more likely to qualify than some
commercial activity.
4. What is the
disposition and character of the occupier?
While, as already stated, his or her view of whether the activity is
incidental is not in any sense conclusive, it is nevertheless something to
which regard should be paid. One person might consider a particular hobby was
incidental to his or her enjoyment of the dwellinghouse, while another would
say that such an activity was unthinkable in or near a dwellinghouse.
In the case of
Emm v Secretary of State for the Environment [1989] JPL 909, Sir
Graham Eyre QC, sitting as a deputy judge of the High Court, said in words
which I gratefully adopt:
The fact that
such a building had to be required for a purpose associated with the enjoyment
of a dwellinghouse could not rest solely on the unrestrained whim of him who
dwelt there but connoted some sense of reasonableness in all the circumstances
of the particular case. That was not to say that the arbiter could impose some
hard objective test so as to frustrate the reasonable aspirations of a
particular owner or occupier so long as they were sensibly related to his
enjoyment of the dwelling.
In the present
case the inspector reviewed all these matters and clearly had regard to the
personal attitude of the appellant and her evident affection for
applied a limit of six. The appellant asks: ‘Why six?’ It is clearly an arbitrary number, as the
inspector himself agreed, and there is no logical basis for saying that six
constitutes a user which is incidental to the enjoyment of the dwellinghouse as
such while seven does not. These questions are difficult to answer, but a
decision has to be made by the inspector on the basis of his assessment of the
premises he inspected and the user concerned. His limit of six is not in the
circumstances over-restrictive.
In my
judgement, the inspector came to the correct decision and I would dismiss the
appeal.
Appeal
dismissed with costs; application for leave to appeal to House of Lords
refused.
