Q & A 23.1/10
My authority is considering taking enforcement action against excessive dog keeping at a house, and wishes to formulate the requirements of the notice to allow some dogs to be kept which would be incidental to the enjoyment of the dwellinghouse. I have read somewhere that the courts have determined that the exact number of "ancillary" dogs need to be specified in any notice. Do you have knowledge of this case?
I think that you must be referring to Stratford-on-Avon District Council v Hitchman . In this case the local authority had not specified the number of dogs that could be kept, but it had later sought an injunction requiring that the tally be reduced from nine to six. It was held that the lack of a precise requirement had created doubt as to what had to be done to comply with the notice and the council's request for an injunction was denied. The court, however, required the defendant to give a formal undertaking to allow the numbers of dogs to decrease to six through natural wastage. It follows from the Stratford judgement that if your council is intending to serve a notice it would be as well to specify a reduced level of dogs that it considers to be ancillary to the particular premises. However it should avoid reliance on the "six dog rule", which some have adopted slavishly following Wallington.
Could you please confirm whether the keeping and breeding of Llamas constitutes an agricultural use as defines by section 336 of the Town and Country Planning Act 1990. My authority has received a prior notification application for a new ‘agricultural’ building at a farm which no longer undertakes any conventional farming activity. Llamas are kept for trekking and for sale as pets. They are not kept for meat and, unlike Alpacas, the fleeces cannot be marketed commercially. My authority considers this to be a recreation/tourism use and full planning permission would be required for any buildings. AH.
Although rather dated, the definition of agriculture at section 336 refers to the keeping and breeding of livestock and then goes onto state that this includes any creature kept for the production of food, wool etc. It does not say that creatures kept for any other purpose, such as the Llamas you describe, are excluded. However, practice has not supported this interpretation of the words in section 336. As is well known, the courts have determined that the use of land for keeping leisure horses is not an agricultural activity, and thus buildings to house them are not for an agricultural purpose, as required if they are to enjoy the rights given by Part 6 of the Town and Country Planning (General Permitted Development) Order 1995. Although horses do not provide an exact parallel, and given the inadequacies of the present legal definition of agriculture, I feel that the buildings proposed require full planning permission. Whether, as it stands and without these new buildings, the Llama trekking/breeding use constitutes a material change of use from any previous agricultural use, is another matter. Of course, the enterprise is a classic agricultural diversification favoured by policy, which might be difficult to reject unless there were overriding planning objections. GH.
A lawful development certificate has been granted for a dog breeding/boarding use within a domestic outbuilding. The previous owner undertook mainly breeding and took in boarders "from time to time" and the new owner wants to use the building for some breeding but predominantly boarding for members of the public. I understand many breeders offer some ‘ancillary’ boarding to friends, family and buyers of puppies but not to members of the public. I have looked in the Land Use Gazetteer and Development Control Practice and cannot find out whether breeding and boarding are classed as one sui generis use or whether they are two separate sui generis uses. If the building was mainly used for breeding with some ‘ancillary’ boarding and then used for commercial boarding with some breeding, would a change of use occur if the breeding element did not amount to a commercial use and could be deemed to be at a scale ordinarily incidental to the enjoyment of the dwelling? LT
Breeding and boarding dogs are uses of different character, even if they have some elements in common, so would be classed as being materially different. If the lawful development certificate is "open", i.e. the scale and nature of the use is not defined in the certificate, the council would normally have difficulty under planning powers controlling the intensity of the use for the specified purposes. If the breeding use dropped to a very low level such that it would be considered of domestic scale, it would, however, be possible to argue the commercial use had been abandoned and therefore a material change of use had taken place. If a lawful development certificate is granted for an existing use, as this example shows, it is important that matters such as the nature and scale of use should normally be defined.
Has anyone granted planning permission for dog boarding kennels with an associated dwelling in the countryside? MKS
Issues relating to establishing boarding kennels are considered in section 23.1 of Development Control Practice and sections 23.131 and 23.132 are most relevant to rural areas. Because of noise from barking, kennels are more appropriate in rural than urban locations. Planning authorities, however, would be unlikely to countenance new building for kennels in rural areas and a search for suitable sites should concentrate on reusing existing buildings such as redundant agricultural ones. Similarly a new dwelling is unlikely to be acceptable unless a business exists and is operating viably meeting the annex A of Planning Policy Statement 7 tests, so for a new enterprise either an existing dwelling should be used or a new one formed by converting an existing building. An example of an appeal decision where a dwelling has been allowed for existing kennels in Berkshire is DCP Number 100-054-968. I cannot find an appeal decision where a dwelling has been allowed at the same time as the kennels are established. JH.
JH said he could not find an appeal in which a dwelling was allowed in countryside at the same time as dog boarding kennels were established. In an appeal in Bedfordshire in 2008 (DCP Reference 100-0560420), the inspector approved the principle of a log cabin home on a site for new dog kennels and a cattery based on Planning Policy Statement 7 criteria, but the appeal was refused solely because the financial supporting data was out-of-date (a result of delays caused by the planning authority). The decision left the way clear for an identical application with updated financial data, which the council approved following the inspector's decision. The authority had resisted the development on principle since 2004 and had consistently rejected the log cabin on the grounds it was not a mobile home and it was too large with 3 bedrooms and an office. Both those objections were overruled by the inspector. TD