Kennels had been erected along the whole width of the rear of the dwelling and occupied half the rear garden. Six German shepherd dogs were kept in the kennels and two in the house. Citing Main v Secretary of State for the Environment, Transport and the Regions and South Oxfordshire District Council , the appellant maintained that the scale of the activity did not preclude the use from enjoying incidental status, as long as a functional relationship with the primary residential use was mantained.
The inspector preferred the judgement in Wallington v Secretary of State for Wales and Montgomeryshire District Council , which recognised the need to assess whether a mixed use has occurred based on the number and size of the dogs kept and the character of the property. In his opinion, keeping eight dogs had triggered a material change of use, given the limited size of the house on an urban estate.
However, the appellant also provided evidence suggesting that up to 11 adult German shepherds or Rottweilers had been kept from 2003 onwards and at least six since late 2004. Based on the Wallington case, where six dogs had been judged to trigger a material change of use, the inspector decided that a material change of use had occurred more than ten years before the notice was served and was now immune from enforcement. He rejected the council’s claim that intensification of the use had only triggered a material change in more recent years.
Inspector: Alan Woolnough; Hearing