November 5, 2021

The Planning Inspectorate finds bike training circuit used by YouTuber not incidental to the enjoyment of a dwellinghouse

The Appellant, a professional freeride mountain biker and YouTuber has lost his appeal against an enforcement notice issued by Colchester Borough Council (“CBC”) concerning the use of part of his garden for a bike training facility.

What is considered a material change of use?

Section 55(1) of the Town and Country Planning Act 1990 (as amended) (“TCPA”) defines “development”, for which planning permission is required. This includes the making of any material change in the use of land.

However, even if there is such a material change of use, any use which is within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such, will not require planning permission (Section 55(2)(d)).

Whether or not a use is “incidental” for the purposes of Section 55(2)(d) must be considered with regard to the primary residential use and the type and size of the dwellinghouse and its curtilage, as well as the scale and nature of the claimed incidental activity. Case law has established that the functional relationship between a primary use and incidental use should be one that is normally found and not based on the personal choice of the user. The fact that a householder might derive great pleasure from an activity is not sufficient to bring it within this exception.

The Appeal

In this case, an enforcement notice was issued by CBC which alleged without planning permission, the material change of use of part residential garden land to a mixed use for (1) mountain bike purposes and (2) use for motorised sport and practising for such, including engineering operations/excavation and the creation of tracks, jumps, ramps, and scaffolding towers.

The property subject to the enforcement notice was a substantial detached dwelling set in spacious grounds. The Appellant had erected a number of ramps, some of which were constructed of timber and some of soil, a scaffolding tower and mat and sheeting were placed to create what the Inspector claimed appeared to be a circuit within the back garden of the property. A substantial amount of soil had been used to create the mounds and a depression filled with water had also been formed.  

The Appellant’s appeal was made on the grounds set out in Section 174(2) (c) and (f) of the TCPA.

Ground (c)

To succeed on ground (c), an appellant must show that on the balance of probability, the matters alleged in the enforcement notice do not constitute a breach of planning control.

It is understood that the Appellant’s central argument, in this case, was that a material change of use had not occurred and that the use of the site was incidental to the enjoyment of the dwellinghouse.

The Inspector accepted that it was not unusual for an occupant of a dwelling to choose to ride a mountain bike or motorised bike within the curtilage of a dwellinghouse, however when considered whether the use was incidental to the enjoyment of the dwellinghouse, it was necessary to consider the precise nature of the activities undertaken at the site.

The Inspector stated how the area used for the activities comprised a substantial part of the rear garden of the property and engineering works had been carried out and various structures located within the site to create a circuit. The Inspector said one of the wooden ramps was clearly visible from the road and given the height of the scaffolding tower, it was likely to be visible from the road in the winter months.

The Inspector also considered the types of bikes used by the Appellant and considered it was highly likely that activities within the site would generate noise and dust which would be perceptible from outside the site, particularly in the summer months when the ground was likely to be dry.

The Inspector stated that in their view, the provision of what was, in effect, a training facility, whether for personal use or not, went beyond the functional relationship normally found between a residential dwelling and an incidental use. The Inspector continued that, given the substantial size of the circuit and the structures, the activities could not have reasonably been considered incidental to the enjoyment of the dwellinghouse. Consequently, as a matter of fact and degree, the use was found not to be incidental to the enjoyment of the dwellinghouse and changed the character of the garden such that a material change of use had occurred. The appeal on ground (c) failed.   

Ground (f)

To succeed on ground (f), an appellant must show that the steps required by the enforcement notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control.

In this case, the requirement (iii) of the enforcement notice required that the recipient of the notice remove from the land the mounds, ramps, and jumps created to form the mountain bike/motorised sport tracks, by means of reinstating the land back to its natural ground level, ensuring the ground was not disturbed at a depth deeper than 100mm below natural ground level.

Upon considering the ground (f) appeal, the Inspector found that the requirement under (iii) of the enforcement notice to ensure the land is not disturbed at a depth deeper than 100mm below natural ground level was unnecessary and that the remedy to the breach would be achieved by the removal of the mounds, ramps and jumps and reinstating the land to its condition before the development took place. The requirement was varied accordingly.

The Inspector also found that requirement (iv) to reseed the affected areas to grass was ambiguous and exceeded what was necessary to remedy the breach. The Inspector found that the breach would be remedied by requirement (iii) which, as corrected required the reinstatement of the land to its condition before the development took place, and therefore requirement (iv) should be deleted.

The Inspector also found that requirement (v) to leave the land in a clean and tidy condition was also open to interpretation and should be deleted.

In conclusion, the Inspector found that the requirements of the enforcement notice were excessive to remedy the breach of planning control. However, the enforcement notice was upheld with a correction and variations. The appeal on ground (f) succeeded to that extent.

Commentary from a Planning Law Solicitor

It is understood that the Appellant has complied with the enforcement notice.

It is noted that within his ground (f) appeal, the Appellant sought to raise a number of matters regarding the planning merits of the appeal scheme, but these could not be considered by the Inspector because a ground (a) appeal had not been made. Within his argument, the Appellant also stated that no neighbour complaints had been received concerning his activities at the site. If this is the case, it is questioned why the Appellant did not submit a ground (a) appeal for retrospective planning permission.

As a side point, it is also questioned whether the Appellant’s profession as a professional freeride mountain biker and YouTuber would have had implications for his use of the site. It is understood that the Appellant recorded and uploaded various videos on his YouTube channel of him using the bike training facility. This may have raised questions as to whether this was a ‘working from home’ scenario, and if the business activity gave rise to a material change of use. This is an all-too-common problem faced by those who work/run their business from home.  

If you are considering changing the way you use your property, be it by the creation of a bike track in your garden or running a business from home, it is advised that you check whether planning permission is required.  

If you are the recipient of an enforcement notice, Holmes & Hills’ team of Planning Solicitors is available to advise you of the appropriate grounds of appeal, which in the above case, would have been a ground (a) appeal. 

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Ellie Shemming

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evs@holmes-hills.co.uk

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