An inspector refused to permit an ancillary annex in the rear garden of a house in a Hertfordshire city after concluding that it lent itself to independent living.
The proposed annex would replace an existing single storey garage at the far end of the rear garden from the main house and would contain all the facilities required for it to be used as an independent dwelling, including a kitchen and living area, a separate bedroom and a shower room. Whilst the plans showed that the existing vehicular access would be blocked up, the inspector observed that the corner plot made independent side access possible.
The inspector was clear that a condition limiting the use of the annex to ancillary purposes would be difficult to monitor or enforce, and observed that due to the siting of the annex at a distance from the main house with its own direct access and extensive facilities, there would be a strong temptation to let the annex accommodation for separate occupation following its initial occupation by a relative. The appellant offered a unilateral undertaking covenanting not to occupy the site other than as a single residential unit. However, in the inspector’s opinion, this would not ensure that the occupants shared the services of the main dwelling and would be difficult to enforce.
The inspector referred to the High Court judgment in Uttlesford DC v SSE & White 1992 that, even if accommodation provides the facilities for independent day-to-day living, whether it is a separate planning unit from the main dwelling is a matter of fact and degree. In the absence of a clear connection with the main dwelling the inspector concluded the annex would be or become a separate planning unit.
This is a clear reminder of the requirement for ancillary accommodation to be subservient to a host dwelling rather than just being a new dwelling in its own right, and shows how producing the correct scheme for the Council to consider from the outset pays dividends.
An appeal has been won against North Hertfordshire District Council allowing conversion of an existing annex to a self-contained dwelling. Ref: APP/X1925/W/18/3213533. Decision date 1 March 2019.
The original application ref 18/01249/FP was refused on 23rd July 2018 on the grounds of effect on the character and appearance of the area resulting from the intensification of the use of the site.
The Inspector disagreed with the Council stating that a suitable living environment could be afforded to both dwellings.
This case shows us that it is possible to site or build a residential annex and later on have it established as an independent dwelling in its own right if the Council cannot prove that there would be appreciable gain in maintaining the extant relationship between the host dwelling and its subservient partner.
This could be of particular use when considering selling off one building independently of the the other, as annex structures cannot truly exist on a separate title deed to the host dwelling.
An appeal has been made and succeeded against a decision of East Northants District Council to refuse application ref: 17/01174/LDE on 20 December 2017 for a certificate of lawful use of a caravan used for incidental forestry purposes.
Appeal ref: APP/G2815/X/18/3196156 - Decision date 11 February 2019.
Whilst this is a step away from standard curtilage applications, there is contained within the Inspectors report some handy comments regarding the permanence of a mobile unit and that being allowable before no longer being considered mobile.
Local Authorities sometimes have difficulty accepting that just because a caravan is connected to services this does not mean that it has become a permanent fixture to the land. It is always worth noting then, when Inspectors acknowledge this not to be the case. The inspector here notes:
'The Council refer to the caravan being attached via services and I saw at the site visit that there were cctv cables going into the caravan and drainage pipes going into a tank. However, these are capable of detachment within minutes and such detachment would be a simple matter. There was not any degree of permanent attachment around the caravan to indicate it was unable to be moved.'
I still maintain that the best comments relating to serviced caravans / mobile units not constituting operational development or becoming permanent is found within wording appeal refs: APP/J1915/X/11/2159970 and APP/B1930/X/14/2216233.
It is also worth noting for those who follow such things, that in this case the incidental use for forestry purposes was in conjunction with an area of woodland circa 2 acres in size - quite small for these purposes usually.
* As a side note, we also obtain certificates of lawfulness and full planning consents for agricultural and forestry units, buildings and dwellings. Please contact us for further details.
An article by Propertywire has suggested that garden annexes are the latest must have in the UK’s housing market. With planning applications up strongly, it is suggested in new research that they add value to the price of a home.
There are around 10,000 applications made to councils across the country each year to create garden annexes, that is one every three minutes, according to the study from Churchill Home Insurance.
It also found that 82% applications for new or converted garden annexes are successful and there has been a 27% increase in the value of three and four bed homes with a garden annexe over the past five years.
A breakdown of the figures, from an FOI application, in the last financial year there were an estimated 7,000 applications for new garden annexes, those which have been newly built rather than converted, with 5,700 or 81% of these applications successful.
There were an estimated 2,800 applications recorded by local councils for converted garden annexes, those produced using an outbuilding or conversion of a shed or building already there, of which 2,400 or 84% were successful.
Between April 2015 and March 2018 there has been a 5% increase in the number of successful applications for new garden annexes and a 7% increase in the number of successful converted garden annexe applications.
In the last financial year, Torbay council received 466 applications for new garden annexes, the most of any council that responded to Churchill’s FOI request. On the opposite end of the scale, Wigan Metropolitan Council received no applications for new garden annexes in the same time period.
The study says that some home owners are taking advantage of the benefits a garden annexe can offer when trying to sell their homes, with research among estate agents revealing that three and four bed homes with a garden annexe can command asking prices as much as 27% higher than the average comparable property in the area.
‘Developing your own, new or converted garden annexe can be a very exciting process and is becoming ever more popular as people get increasingly savvy about home renovations. Whether you’re building an annexe for an older relative or just for the additional space, it is often a cheaper and easier alternative than moving to a larger property,’ said Craig Rixon, head of Churchill home insurance.
He pointed out that it is important that owners inform their insurer of any home renovations they plan to make so that their home and its contents are adequately insured during the course of the renovation and upon completion.
An appeal has recently been made and dismissed by Spooners and West Dartmoor Hunt against an enforcement notice served on a caravan being used for residential purposes whilst stationed inside a barn. Appeal ref: APP/J9497/C/18/3203720.
Once again there has been confusion over the time period that a Local Authority can enforce against someone living on site in a mobile home unlawfully. As a rule of thumb, if you construct a building and live in it, or you take up residence in an existing building, the Council only has 4 years in which to enforce against this. Furthermore, provided that you can prove that you have been living there constantly for in excess of 4 years, then a CLEUD (Certificate of Lawfulness for existing Use or Development) can be issued essentially validating the residential use.
The time period for a Council being able to enforce against unlawfully living in a caravan or mobile unit, however, is 10 years. This is because a caravan is mobile and as such we are concerned with the use of land for the stationing of such a unit rather than the creation of a permanent dwelling. You can perhaps imagine a similarity between parking a car and parking a caravan. If you continuously park your car on a piece of land and you wanted to prove you have a right to continue to do so in perpetuity, then you would have to do this for a period of 10 years in order to claim that the use of land has changed to allow parking. However if you built a garage for the storage of a car, then you would be immune form enforcement after only a 4 year period. This is because you have physically created something rather than just changed the use of the land. Similarly, if you physically build a dwelling then the 4 year rule applies, however merely parking or siting a mobile unit would require 10 years concurrent use to be immune from enforcement as this only concerns a change of use of the land.
The appeal case listed in this post however, considers a more technical part of the 4 year vs 10 year rule. In this case, a caravan had been sited for in excess of 4 years but less than 10 years INSIDE a barn. The applicant claimed that because the mobile unit was inside a barn, the enforcement period should only be 4 years because the change of use related to a permanent building. The council disagreed and stated that the period should be 10 years.
Whilst the Inspector agreed with the council in this case and allowed the enforcement notice to stand, it is interesting to note that had the applicant lived in the barn without the caravan being there, then there may have been an argument that the 4 year rule would apply. Similarly, had the mobile unit been fixed to barn in some way then the unit may have become considered 'building materials' for the formation of a permanent dwelling.
I suspect that there may have also been some direction here by the Inspector to try and avoid arguments that were brought out by the infamous case of the aptly named 'Mr Fidler' and the castle in the straw bales..
An application for a certificate of lawful existing use was sought and refused for the siting of a cage for the keeping of birds for the domestic need or personal enjoyment of the occupants of a dwelling. The application REF 0057/18 that was originally submitted to Dartmoor National Park Authority was refused on 26 March 2018 and subsequently appealed (REF APP/J9497/X/18/3200939). The appeal was dismissed on 1 November 2018.
Why is this appeal decision useful?
There are 2 issues raised in this decision that are worth noting.
1 - A clear reminder that the 10 year rule is somewhat irrelevant as far as residential use goes and an established ‘land use’ of residential - it is simply a matter of fact and degree whether an area is considered curtilage or not.
2 – The Inspector dismissed the appeal as he felt the proposed siting (of a birdhouse for keeping recreational poultry ancillary to the dwelling house i.e. pets) was not ‘intimately associated’ - even though it was place within domestic gardens that were well cared for and mown, His reasons for this conclusion were that the site was:
i) not within unbroken eyesight of the main dwelling (i.e. creating a visual degree of separation) and;
ii) that the proposed site was at a lower level topographically.
The concept of the subject site not being visible from the dwelling and therefore not being intimately connected is interesting as a listed building definition of what could be curtilage listed may well apply from a historic environment stance.
Lawful development certificate allowed at appeal for additional ancillary accommodation the same size as host dwelling.
West Lancashire Borough Council refused application Ref 2016/1233/LDP for erection of detached gymnasium and dance studio. The sole reason for refusing this application was that the proposed scheme was only some 38 sq meters smaller than the host dwelling and noted that the size was more akin to that of a commercial gym than that of a home gym.
The Inspector noted that the size of the proposed building was not enough reason to refuse the certificate of lawfulness and overturned the Councils decision and subsequently issued the approval..
This case serves as a nice reminder that the proposed new structure does not have to be proportionate to the host dwelling. The key issue here is that there is a reasonable need for it.
Appeal ref: APP/P2365/X/17/3174152 - Decision date: 15 February 2018
enforcement notice does not stop certificate of lawfulness being granted for a replacement unit in curtilage
An appeal was made and succeeded against a refusal by the Council of the London Borough of Newham to grant a lawful development certificate Ref: APP/G5750/X/17/3176705.
The original application Ref: 17/00882/CPL was refused on 6 April 2017 for construction of new outbuilding in the rear garden.
The application took the form of a CLOPUD (Certificate of Lawfulness for a Proposed Use or Development), however the proposal was for a new building to be constructed in place of an existing one of similar design that was subject to an enforcement order. The scheme took a form then of 'once we've been made to remove this building, would we be entitled to put another one up basically the same as the one you made us remove?'
This seems to have been somewhat of a tongue-in-cheek application, and the Council responded that they applicant should not be allowed to put up another building that was similar to the one they were trying to remove.
The Inspector commented that the Council was 'confused' in their approach and overturned their decision, granting the applicant his certificate of lawfulness.
Once again, just because a council does not want to see something built or sited, it does not give them a right to resist permitted rights afforded to a householder.
Somewhat of a landmark case, the recent ruling in Burford vs Secretry of State in The High Court covers many of the issues we are primarily concerned with at curtilage.co.uk.
Ref: Burford v Secretary of State for Communities and Local Government  EWHC 1493 (Admin)
The appellant had been granted a certificate of lawfulness for use of land within a designated area from Test Valley Borough Council for purposes incidental to the enjoyment of a dwelling house, including the keeping of horses for recreational use. The local authority subsequently issued an enforcement notice identifying a breach of planning control arising from the erection of a building within that area.
The building had been constructed in a level, dug-out area lower than the surrounding sloping ground. The appellant challenged the enforcement notice on the ground that the building was permitted development under the Town and Country Planning (General Permitted Development) (England) Order 2015 Sch.2 Pt 1 because it was within the curtilage of the dwelling and the height of the building's eaves fell within Sch.2 Pt 1 para.E1.
The inspector found that the area in which the building had been erected could not properly be described as curtilage, since it was used for horse paddocks kept separate by fences and hedges from the much smaller garden that constituted the curtilage. He held that, in any event, the appeal would still fail because the height of the eaves, measured from the dugout area around the building, exceeded the 2.5m limit.
It was held that the certificate of lawfulness did not address whether the area it covered was within the curtilage of the dwelling house: it simply certified that the land in question had been used for purposes incidental to the enjoyment of the dwelling house. It did not assist in resolving the question of whether the land containing the building at issue was attached to the dwelling house forming one enclosure with it. Moreover, the inspector had considered the functional relationship between the dwelling house and the land on which the building was constructed.
Whilst the appeal was dismissed, legal principles were held up for the determination of what constitutes curtilage. Three factors had to be taken into account in determining whether a structure or object was within the curtilage of another building:
(a) the physical layout of the building and the other structure;
(b) their ownership, past and present;
(c) their use or function, past and present,
These three criteria for identifying curtilage were originally laid down by the Court of Appeal in Sutcliffe v Calderdale Borough Council in 1982 and this ruling helps solidify those principles
Determining the curtilage was a question of fact and degree: "curtilage" connoted a building or piece of land attached to a dwelling house and forming one enclosure with it: it was not restricted in size, but had to be fairly described as being part of the enclosure of the house to which it referred,
Lawful Development Certificate not concerned with planning merits or local opinions. size and proportion of development irrelevant to whether use is incidental.
An appeal was successfully submitted that overturned a refusal from East Hertfordshire District Council to allow development within a householders curtilage under permitted development rights. REF: APP/J1915/X/16/3145218.
The applicant sought to erect a building as ancillary space to the main house to incorporate sitting rooms, gym and storage area. The council refused the certificate of lawfulness on the basis that it did not consider the proposed building to qualify as being incidental to the main dwelling due to the large size and scale of the proposed building. The inspector not only stated that the proposal was commensurate with the dwelling but also gave a helpful reminder for Local Authorities on the limitations of refusing such schemes on such grounds. He states:
"2. A Lawful Development Certificate (LDC) application is not an application for planning permission. Its purpose is to enable owners and others to ascertain whether specific operations or activities would be lawful. In this case, the dispute between the Council and the appellant is whether the proposed building would constitute ‘permitted development’ by virtue of the rights conveyed by the Town and Country Planning (General Permitted Development) Order 2015 (the GPDO).
3. Therefore, for the avoidance of doubt, I make clear that the planning merits of the proposed outbuilding are not relevant in this appeal. In that regard, I note that a number of issues have been raised in correspondence from interested local residents. Those matters include alleged ‘over-development’ of the site, effect on the Green Belt, impact on flooding and sewerage in the local area, the potential for noise disturbance, effect on trees, and the effect on neighbouring privacy. Whilst I note those concerns, they are not matters that can influence the determination of this appeal which is solely dependent on whether the proposed development would be lawful, having regard to the extant legislation governing this type of development – the GPDO."
This is also a useful reminder that such applications should not really be sent to neighbours to consider in any case.