The landowner appealed against an enforcement notice, saying that though she kept a large number of dogs (44), this was for domestic pleasure purposes, and was only incidental to the use as a private domestic dwelling.
Held: The appeal failed. It was sensible to have regard to what would be the normal use of a dwelling house (ie a generic approach) in order to decide whether, as a matter of fact and degree, the activities should reasonably be regarded as incidental to the enjoyment of the particular dwelling house as a dwelling house. A use involving such a large number of dogs was not merely incidental.
Slade LJ said: ‘The wording of section 22 of the 1971 Act in my opinion made it necessary for the inspector to consider two separate questions. First, had a ‘material change in the use of’ the premises, within the meaning of section 22(1), taken place by reason of the fact that a large number of dogs were kept there? This was the ground upon which the council in their enforcement notice had alleged that development, and thus breach of planning control, had taken place. If, though only if, the answer to the first question was in the affirmative, the inspector had then to consider the second question, namely whether the use of the premises for keeping of dogs in large numbers constituted the use of the premises ‘for any purpose incidental to the enjoyment of the dwellinghouse as such’ within the meaning of section 22(2)(d).
The inspector, in para 26 of his decision, in effect answered the first question in the affirmative but answered the second question in the negative. He thus concluded that the use of the premises for the relevant purpose did not fall within the exemption conferred by section 22(2)(d).’ and ‘The formula makes it necessary to consider whether the relevant purpose is incidental to the enjoyment of ‘the dwellinghouse’ (i.e. the particular dwellinghouse in question) as such, not any dwellinghouse.’
Lord Justice Slade considered the phrase ‘of and incidental to the enjoyment of the dwellinghouse’ saying: ‘As drafted, however, the phrase must mean ‘of and incidental to the enjoyment of the dwellinghouse as a dwellinghouse’. The mere fact that an occupier may genuinely regard the relevant activity as a hobby cannot possibly suffice to prove by itself that the purpose is incidental to the enjoyment of the dwellinghouse as a dwellinghouse.’
Farquharson LJ said that the concept of what is incidental to the enjoyment of the dwelling house as such involved an element of objective reasonableness and that it could not rest solely on the unrestrained whim of the occupier of the dwelling house.
Slade, Farquharson LJJ
Times 12-Nov-1990, [1991] 1 PLR 87
Town and Country Planning Act 1970 55(2)(d)
England and Wales
Cited by:
Cited – Gwynedd Council v Secretary of State for Wales and Dowson Admn 31-Oct-1997
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Cited – Holding v First Secretary of State Admn 9-Dec-2003
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Lists of cited by and citing cases may be incomplete.
Updated: 05 September 2021; Ref: scu.425816 br>