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If I had a penny for every time I quote “it’s all a matter of fact and degree” I would be rich, very rich. Although that phrase creates grey areas and arguable decisions it is a cornerstone concept in planning and, with the quirky situations and characters that crop up, keeps the practice of planning law a little less dry! Below, is a roundup of some of the more eye-catching appeal decisions.

What amounts to a “building”? 

A recent enforcement notice appeal decision reminds us that what constitutes a building is surprisingly less than you think.

The appeal in question argued that a cricket practice cage erected by the appellant was not a “building” requiring planning permission. The cage comprised of six posts (measuring 3.6m) attached to the ground using concrete and covered with a removeable net. On first inspection many of us would agree that this is not your normal “building”.

The Inspector considered the three relevant matters: permanence, physical attachment to the land and whether it was constructed on or off site. The cage had been constructed on site and the posts were buried in the ground using concrete – it was therefore physically attached to the ground and the posts permanently in place.

The Inspector concluded that as a matter of fact and degree, the cage was a structure and therefore a building under the TCPA 1990. The removeable net could not save the position.

Airbnb, a C3 use?

With the increase of Airbnb, the planning concept of “fact and degree” is an increasingly crucial one to understand when considering an Airbnb use. Recently, an appellant in an enforcement notice appeal argued that the use of apartments as Airbnb accommodation was the same as a C3 dwelling use and therefore no material change of use had occurred.

In determining the appeal the Inspector referred to the established position set out in the case of Moore; he said, “it would be a matter of fact and degree and would depend on the characteristics of the use as holiday accommodationas to whether a material change of use had occurred.

On that basis he found the transient nature of the Airbnb use resulted in a distinctly different character to that of a dwelling (potential undue noise or disturbance for neighbours and the coming-and-going at anti-social hours) and therefore resulted in a material change of use from C3 to sui generis. 

What is interesting is that the neighbours hadn’t complained to the Council about the Airbnb use, but the Inspector was entitled to draw his own conclusions after a thorough consideration of the “facts and degree”. The decision also highlights the established principle that it is the character of the use that is crucial - once that changes, there is a real risk a change of use has occurred.

Perhaps there is also a point to be made akin to the cases dealing with the amalgamation of dwellings (the Richmond and Kensington cases) – a use may fall within the same use class but have such an impact in planning terms it amounts to a material change of use. Could that apply to Airbnbs? Could Airbnb use lead to a loss of housing in an area that has a high demand for it? If yes, the Richmond principle could apply and permission for such an Airbnb use refused.

A change in approach to the amalgamation of dwellings?

As touched on above, it is generally viewed that the amalgamation of dwellings into a single dwelling requires planning permission but, as always, this is a grey area which will be determined by the planning policies of the relevant authority - what is considered a material change of use in one area of the country might not be in another area (as established in the Richmond and Kensington Cases).   

A recent appeal highlights that this discrepancy may occur more “locally”, within the same borough/district i.e. what a Local Planning Authority considers a material change of use in one set of circumstances in their borough, may well not be in another set of circumstances.  It will all depend on the individual “facts and degree” in each case, not just the Local Planning Authority’s planning policies.

A recent Planning Inspectorate decision allowed an appeal against Richmond Council’s decision to refuse permission for the amalgamation of dwellings (interestingly it was Richmond that established the principle that amalgamation requires planning permission in the Richmond Case of 2000). This case shows, as the Inspector specifically highlighted, that decisions of this kind depend very much on a proposal’s individual planning merits and circumstances, such as (in this case) the reduction in the number of doorbells!

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