COVID-19 – Working from Home

Chris BurgessBy Chris Burgess| Associate LARTPI
Commercial Property

The present crisis caused by the spread of the Covid-19 virus has resulted in large section of the working population having to adapt to working from home. This raises some fundamental legal issues from a town and country planning perspective. Do you need planning permission to work from home?

This very much depends on the nature of your occupation. Ordinarily most office based activities can be carried out from home without the need to obtain planning permission. This is because under section 55 of the Town and Country Planning Act 1990 (as amended) (“the 1990 Act”) development requiring planning permission only occurs if there has been a material change of use of land or buildings. Whether or not a change of use is classed as being a material or not is a question of fact and degree in each case. Thus, if all you are doing is to log on at home and answer e-mails and telephone calls it is unlikely that this activity would be classed as any more than an ancillary or incidental use to the main residential use of the dwelling. You may even convert or construct some sort of office in the curtilage of the dwelling under permitted development rights. If however you employ a secretary or other assistant to work from your home then this in all probability would be more than an ancillary or incidental use of the dwelling and may as a matter of fact and degree be regarded as duel use of the dwelling for residential and office purposes requiring planning permission.

If your occupation involves motor repairing or some other industrial process or an activity that results in customers calling at your home, you will almost certainly require planning permission to carry this out at home. In the past a whole range of activities such as parking an ice-cream van in the drive and charging it over-night or bringing home a commercial vehicle to park in the drive has been viewed as not being ancillary or incidental to the use or enjoyment of the dwelling house which has traditionally been the barometer for testing whether the activity carried out at home needs planning permission.

Interestingly, the local planning authority is not legally obliged to take action against every breach of planning control. Under Section 172 (1) of the 1990 Act the local planning authority has a discretion to take enforcement action if that it is expedient to issue the notice, “having regard to the provisions of the development plan and to any other material considerations”. This discretionary power is not always appreciated. It may well be the case that in the present unique circumstances the call to work from home by the government may constitute a material consideration for temporarily suspending enforcement action although I suspect that the purest will continue to regard the interpretation of “material considerations” as essentially planning land use considerations but arguably the health of the nation is such a planning land use consideration.

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