VCONST14170 - Dwellings - an explanation of terms: what ‘designed as a dwelling or number of dwellings’ means: how Note 2(c) is expressed in planning notices
Source: gov.uk (2025-05-14)


VCONST14170 - Dwellings - an explanation of terms: what ‘designed as a dwelling or number of dwellings’ means: how Note 2(c) is expressed in planning notices

You should not expect the wording of Note 2 (c) to appear as an explicit condition in the planning permission. Planners tend to adopt a form of wording that meets the particular circumstances of the case and often use the word ‘ancillary’ to tie use or disposal of the permitted dwelling to something else.

The following are examples of how a Note 2(c) prohibition has been expressed in a planning permission:

“The living accommodation hereby approved shall be used as a self-contained unit of occupation, ancillary to the associated main household and shall not be severed as an independent and unconnected residence”.

“The annexe shall be used ancillary to the dwelling approved under application….and shall at no time be sold or let as a separate dwelling”.

The reason for imposing a restriction in a planning notice is often a good aid to deciding if it amounts to a Note 2(c) prohibition. In cases of uncertainty as to whether or not a restriction amounts to a Note 2 (c) prohibition, the planners’ views should be sought by the trader.

Planning Permission Circular 11/95, issued by the Office of the Deputy Prime Minister, provides the following model planning condition where the creation of an additional dwelling would be unacceptable for planning purposes:

“The extension (building) hereby permitted shall not be occupied at any time other than for purposes ancillary to the residential use of the dwelling known as [ ]”.

This model condition doesn’t meet Note 2(c).

Planning Authorities aren’t obliged to follow this model condition and can set their own condition. The Tribunal has examined alternative conditions in the cases below. Where a condition is framed in the same way, the Tribunal’s decision can be followed, except where indicated.

Case Law

Prohibition cases:

Commissioners for Her Majesty’s Revenue & Customs v Richard Burton [2016] UKUT 0020 (TCC)

The approach in Swain to occupancy restrictions was followed by the Upper Tribunal in Burton, which is now likely to prove the settled approach to this matter. In this case, the Upper Tribunal held that the occupation of the dwelling shall be limited to a person solely or mainly employed or last employed in Park Hall Lake Fishery or a widow or widower of such a person, or any resident dependants, and this condition did amount to a prohibition on separate use for the purpose of Note (2)(c).

Prohibition - Held: separate use prohibited; appeal dismissed.

Revenue and Customs Commissioners v Shields [2014] UKUT 453 (TTC)

The occupation of the dwelling shall be limited to a person solely employed by the equestrian business at 274 Bangor Road, Newtownards, and any resident dependants. Reason: The site is located within a Greenbelt where it is the policy of the Department to restrict development and the consent hereby permitted, is granted solely because of the applicant’s special circumstances.

Prohibition – Held: separate use prohibited; appeal dismissed.

Revenue and Customs Commissioners v Lunn [2009] UKUT 244 (TCC)

The development hereby permitted shall only be used for purposes either incidental or ancillary to the residential use of the property known as Radbrook Manor and shall not be used for commercial purposes.

Prohibition – Held: separate use prohibited, appeal dismissed.

Mr David Sherratt and Mrs Elizabeth Sherratt v The Commissioners for Her Majesty’s Revenue and Customs [2011] UKFTT 320 (TC)

The proposed development shall always remain ancillary to the existing agricultural use of the site and shall not be sold, leased nor otherwise disposed of separately from, the remainder of the premises.

Prohibition – Held: separate disposal prohibited, appeal dismissed.

Paul Cussins v The Commissioners for Her Majesty’s Revenue and Customs [2008] VTD Decision Number 20541, 525

The residential accommodation hereby permitted shall only be occupied in conjunction with the commercial use hereby approved. Reason:- The site lies in an area where new residential development is restricted.

Prohibition – Held: separate use and separate disposal prohibited.

James Redman v The Commissioners for Her Majesty’s Revenue and Customs [2017] UKFTT 199 (TC)

The Owners hereby undertake that the Development shall not be sold, leased, disponed, or otherwise alienated separately from the Croft and that the Development and the Croft shall only ever be disposed of as a single unit in all time coming. The Owners further undertake that the said dwellinghouse shall not at any time be occupied by anyone other than the crofter or other person or persons engaged in working the Croft.

Prohibition – Held: separate use and separate disposal prohibited.

Lesley Swain v The Commissioners for Her Majesty’s Revenue and Customs [2013] UKFTT 316 (TC)

The occupation of a barn was limited to appropriately qualified persons. The lawful use of this barn is a clear occupancy restriction circumscribed by reference to a relationship between occupiers and a business ‘separate from’ the neighbouring development.

Prohibition - Held: separate use prohibited; appeal dismissed.

Philip Thompson (VTD 15834) (1998):

The living accommodation hereby approved shall be used as a self-contained unit of occupation, ancillary to the associated main household, and shall not be severed as an independent and unconnected residence.

Prohibition - Held: separate use prohibited; appeal dismissed.

No prohibition cases:

Summit Electrical Installations Ltd ([2018] UKUT 176 (TCC)):

The flats could only be occupied by university students attending a specified institution, within a local borough. The Tribunal found that this condition required use in connection with specified universities rather than specified locations, as universities often expand to new locations.

No Prohibition – Held: separate use not prohibited; appeal allowed.

Revenue and Customs Commissioners v Barkas [2014] UKUT 558 (TTC)

The workshop / office within the application site shall only be used / operated by the occupiers of the dwelling hereby granted permission.

No Prohibition – Held: separate disposal not prohibited; appeal allowed.

Edmont Ltd v The Commissioners for Her Majesty’s Revenue and Customs [2015] UKFTT 527 (TC)

To retain the whole of the Land together as one parcel and in one ownership and not to alienate any part of the land or any building erected thereon without the prior consent in writing of the Council PROVIDED ALWAYS that this Deed shall not operate to prevent the disposal alienation or leasing of the whole of the land (including any building erected thereon together as one parcel).

No Prohibition – Held: separate use not prohibited; appeal allowed.

Margaret Elizabeth Wendels v The Commissioners for Her Majesty’s Revenue and Customs [2010] UKFTT 476 (TC)

The occupation of the dwelling hereby permitted shall be limited to a person solely or mainly employed or last employed in the cattery business occupying the plot edged blue on drawing no. C27-05-01-1, dated 14 December 2005 and submitted with the Appeal, or a widow or widower of such a person, or any resident dependent.

No Prohibition - Held: separate use and disposal not prohibited; appeal upheld. Purely occupation restrictions are allowed.