The High Court has dismissed all grounds advanced by a personal trainer who runs a gym in his garden shed in a planning dispute with the Secretary of State for Housing, Local Government and Communities.
In Sage v Secretary of State for Housing, Local Government and Communities  EWHC 2885 (Admin) Sir Duncan Ouseley, sitting as a High Court judge, said gym owner Ricki Sage’s contention that running the gym was part of the normal use of residential premises was wrong.
The judge said: “An inspector properly directed by lawful guidance could not rationally have concluded, as a matter of fact and degree, that the six day a week use, with 30 or so sessions, with the hours envisaged on this property in a tight knit residential area, was incidental or ancillary to the use of a dwelling house as a dwelling house.”
Mr Sage lives in a two-storey semi-detached house with a garden in the London Borough of Bromley.
At the rear of his garden is a timber out-building, used as both a shed and a gym with equipment including a treadmill, cross-trainer and punch bag.
This can be accessed by a side passage and since 2016 Mr Sage has used it with paying clients for his business as a personal trainer.
He did not seek planning permission but applied twice unsuccessfully under s191 of the Town and Country Planning Act 1990, for a Certificate of Lawful Use (CLU).
Bromley refused both and Mr Sage appealed both times but the inspectors concerned dismissed this and Mr Sage then appealed under s288 of the 1990 Act.
Mr Sage argued the second inspector's decision took into account an immaterial consideration of ‘visual disturbance’ and that her decision was irrational and vitiated by legally inadequate reasoning.
Sir Duncan noted: “The use of any buildings or other land within the curtilage of a dwelling house for any purpose incidental to the enjoyment of the dwelling house as such” was not considered to be ‘development’.
He had to ask whether there been a material change of use and if so was it for a purpose incidental to use as a dwelling house?
“It does not follow that all such incidental purposes involve a material change of use, but the subsection provides certainty that where they otherwise would do, planning permission is nonetheless not required,” he said.
The judge said that after the first appeal was rejected “Mr Sage therefore identified the weakness in his case for a CLU as being the evidence about noise and disturbance caused by the number of daily comings and goings associated with the studio use, at the level as at the date of that application. The second application for a CLU was intended to put that omission right.”
Bromley still refused to issue a certificate, saying that the use of the gym would result in a material change of use requiring planning permission.
In the second appeal the inspector found there would be visual disturbance to neighbours, and Mr Sage agreed this was an immaterial consideration as it did not feature in the planning practice guidance’s non-exhaustive list of issues a decision-maker may wish to consider.
Sir Duncan said: ”I cannot accept…that noise disturbance is in law relevant, but that visual disturbance is in law not.”
He said the list of considerations was not mandatory but merely possibilities and did not exclude those unmentioned. “The consideration was not immaterial in law,” he said.
Mr Sage also challenged the inspector’s reasoning over disturbance to neighbours from the gym since this had no environment impact, but Sir Duncan said: “There is no deficiency in reasoning. It is a perfectly straightforward expression of the planning judgment on the issues the Inspector was seeking to resolve.”
Dismissing the argument on irrationality, the judge said: “The number of visitors, the number of days a week, the hours of daily operation of the studio, all as a routine, are the crucial determinants of scale and degree: is that a use incidental to the use of the dwelling house as such?
‘That is the question which the inspector was truly answering. The environmental impact was only one aspect of that issue. The essential conclusion of the inspector was that, as a matter of fact and degree, the level of use had gone beyond that point. That is a planning judgment which is unarguably rational. Indeed, I cannot see that she could rationally have reached any other conclusion.”
Sir Duncan noted Mr Sage’s description of the existing use “was wholly inadequate for a CLU.”
Mr Sage, if successful, “was expecting the decision-maker to do a considerable amount of careful drafting, including by reference to conflicting material on numbers supplied by him, but not as part of the application.
“The vaguer it was, the more a different occupier, or Mr Sage with a change of outlook, could have exploited it without risk of a material change of use occurring.”
He said the inspector should not be expected to have “sorted things out”.
The judge also criticised the Secretary of State's planning practice guidance on applying for a CLU and said the section on ‘Do I need planning permission to homework or to run a business from home?’ was problematic.
He said it was too readily capable of leading to the concept of a material change of use or a purpose incidental to the use of dwelling house being misunderstood.
A business use in a dwelling house may well be secondary to its primary residential use but still create a material change of use, ‘This is a crucial point which the Guidance ignores or blurs badly,” the judge said.
He added: “A material change of use can be made without any adverse environmental impact at all. Treating environmental impact as the seemingly crucial issue for the judgment as to whether a material change of use has occurred, or a purpose is reasonably incidental is not consistent with clearly established law. The crucial test is whether there has been change in the character of the use.”