Q & A 10.2/10
I am acting for the owner of a large house, in the grounds of which is a lodge occupied until recently by a handyman/gardener. It is wished to sell off the lodge on the open market but the local planning authority is insisting that planning permission is required. Can it be right in this assertion?
I assume that that there is no planning condition affecting the occupation of the lodge. In that case, and if the lodge already forms a self contained unit of living accommodation, one may use sec 55(2)(f) of the 1990 Act to argue that subdivision of a planning unit is not development. There is no material change of use and both parts of the land would remain within the same Use Class (C3). The situation would be different if the mode of occupation of the lodge did not make it functionally independent of the main house, as the act of severance would create a new separate single dwelling. In this respect the court case Whitehead v SOS & Mole Valley DC  is of note. Here it was determined that semi-independent housekeeper’s accommodation located in large grounds could be an ancillary to the main house.
My authority wishes to argue that PPG7 Annex G, when it refers to circumstances in which rural buildings may be converted to other uses, does not apply to outbuildings within the curtilage of dwellings in the countryside.
Although the thrust of Annex G is clearly directed at agricultural buildings there is no definition of "rural buildings" in PPG7, and in practice proposals for the conversion of substantial buildings such as stables, coach houses etc. which lie in private gardens, are normally subject to the same five criteria as set out in paragraph 3.14. However, the views of readers who have had experience of any conflict over this point will be welcomed.
When does a residential annexe become a single dwellinghouse? My authority is devising a supplementary policy on this issue. Where is the best place to look for examples and what is the generally accepted view on this matter?
Paragraph 2.81 of Circular 10/87 is a useful starting point as it explains the term ‘single dwellinghouse’ by reference to a number of criteria and is based largely on the judgment in Gravesham BC v SoS & O'Brien . In essence, an annexe will become a single dwellinghouse where it is self-contained with all the necessary living facilities and has resulted in the creation of a separate planning unit. Uttlesford DC v SoSE and White , which considered a garage attached to a dwelling that had been converted to a ‘granny annexe’, is also of interest. An inspector had determined that where a domestic garage within a residential curtilage was used for living accommodation in connection with the dwelling, no material change of use had occurred. The court agreed, ruling that the fact that the elderly occupier of the annexe had living facilities that enabled her to live independently from the rest of the family did not amount to the creation of a separate planning unit that required permission. Related guidance is set out at 10.1511 of Development Control Practice while relevant cases may be viewed on the Planning Resource website or obtained from COMPASS.
I submitted an application for a certificate of lawfulness for the use of a curtilage building as a separate dwelling together with evidence that it has been occupied independently of the existing dwelling for 17 years. The new dwelling is self contained and has all normal facilities for day-to-day living. However, the local authority argues that it is ancillary accommodation and is likely to refuse the application. While family members of the main dwelling have historically occupied the building, I consider that the authority's approach is incorrect and that the dwelling constitutes a separate planning use. What is your advice?.
In Uttlesford District Council v Secretary of State for the Environment and White , it was held that the use of an outbuilding in the curtilage of an existing dwellinghouse for primary residential purposes does not involve a material change of use where it is used in conjunction with the dwelling. The essential question is whether the use of the curtilage building has created a separate planning unit. Where such a building is occupied by someone unconnected with the original dwelling or has been severed from it and has its own curtilage, a separate dwelling will have been created. But the line taken in the Uttlesford case and later appeal decisions suggests that use by family members does not constitute a sufficient degree of "separateness", even where such a person lives independently from those occupying the main dwelling. The local authority’s approach therefore appears to be correct.
My authority has received an application to install two dormer windows at a detached domestic garage and convert it into a self-contained granny annexe. The applicants state that it will be occupied by a relative and will be strictly incidental to the principal dwelling. They argue that since the proposal comprises operations in the curtilage of an existing dwellinghouse for purposes ancillary to its enjoyment, the application fee should be £135. However, as the proposal is in effect a free-standing building capable of being occupied as a dwelling, I believe that the fee should be £265. What is your view?
The judgment in Uttlesford District Council v Secretary of State for the Environment and White  established that permission is not required to convert a garage in a residential curtilage to an annexe capable of independent accommodation, provided both it and the existing dwelling remain in the same planning unit. The dormer windows may not require permission if they meet the requirements of Class E, Part 1, Schedule 2 of the General Permitted Development Order 1995. So I would first question the need for express permission. Should this be required, the application fee should be £135, in accordance with category 7a, Part 2, Schedule 1 of the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 as amended.
An outbuilding erected within the curtilage of a dwelling was occupied continuously as an independent dwelling for four years, in breach of planning control. An application for a certificate of lawfulness (LDC) was applied for some years later. During the intervening period there was a significant break (over a year) when the building was still equipped for independent occupation but was vacant. The planning authority refuses to issue an LDC for use as an independent dwelling because occupation was not continuous during the prior four years. But I think the use has accrued planning rights which thereafter could only be lost through abandonment. I would be interested in your thoughts. MT
In the case you describe it does not seem to be in contention that, at sometime in the past, residential use of this building had taken place on a sufficiently continuous basis to ensure that an LDC would have been granted had it been applied for shortly after four years had elapsed
However, where an LDC is requested some years later, where within the strict four years prior to the date of application the premises had been vacant for a period, the judgment in Panton & Farmer v Secretary of State for the Environment and Vale of White Horse District Council  comes into play. Here, it was held that lawful use rights notionally obtained in the past could only be lost by evidence of abandonment, the formation of a new planning unit or where a further change of use had occurred. The case introduced the concept of dormancy. Applying this test it seems unlikely that the period of vacancy you describe would be critical, provided the premises remained suitable for and was intended to become available again for separate residential use. A good appeal case parallel worth referring to is (DCS No. 049-804-684). GH
If someone wishes to convert stables within the curtilage of a listed house to a dwelling for staff, would that require planning permission or would the works be covered by class E of part 1 of schedule 2 of the General Permitted Development Order 1995 as amended? SO.
Provided it does not have its own curtilage and therefore a separate planning unit is created, a dwelling for staff would normally be classed as being ancillary to the main house and the conversion would not be a material change of use. Section 10.211 of Development Control Practice considers this issue in more detail. Whilst Class E allows the "improvement or other alteration" of outbuildings, this right does not apply to outbuildings within the curtilage of a listed building. Thus, to assess if planning permission is required you would need to decide whether the dwelling would be ancillary to the main house. Even if it would be, planning permission would still be required if the proposal resulted in material alterations to the external appearance of the building. It is possible that listed building consent would be required for the conversion works in any event. JH.