RE: In Lawful Use - High Court judgement - Public forum - Planning Advisory Service (PAS)
RE: In Lawful Use - High Court judgement
Rebecca Randall, Addaswyd 8 Years yn ôl.
In Lawful Use - High Court judgement
Enthusiast Postiadau: 60 Dyddiad Ymuno: 06/05/2014 Bostiadau diweddarHello
Your legal bods may have alerted many of you to this already, but there is a High Court judgement in relation to what constitutes in lawful use which is worth a read as it appears that the emphasis is placed on having both a lawful AND active use on site, not just one or the other. We are trying to get some consistency on what types of evidence we require to determine whether a building is in use - particularly for existing agri buildings where conversion is being sought, which also have a (different) test applied in relation to whether or not the building has been in use when considering the tests for grant of prior approval.
Case No. CO/4096/20014 dated 02/03/2015 R(oao Hourhope Ltd) vs Shropshire Council
Rebecca Randall, Addaswyd 8 Years yn ôl.
RE: In Lawful Use - High Court judgement
Enthusiast Postiadau: 60 Dyddiad Ymuno: 06/05/2014 Bostiadau diweddarHi All,
In a related matter I wondered what approach different authorities utilise when considering whether existing floorspace is deductible.
In Shropshire we usually assume that the information provided about existing floorspace within the initial CIL Information Form is correct, given that the party completing the form has also completed the disclaimer within it about accuracy of information. We therefore only tend to challenge this claim if contradictory information / evidence is available or the relevant party tries to change their stance on whether a building is deductible.
Do other authorities take this same approach or do you do things differently?
Thanks
Dan
REBECCA STADDON, Addaswyd 8 Years yn ôl.
RE: In Lawful Use - High Court judgement
Advocate Postiadau: 103 Dyddiad Ymuno: 05/09/2013 Bostiadau diweddarHere at TDBC we take the same approach.
The claimant is signing to say the information is correct so to our way of thinking if evidence is later produced that they weren't telling the truth they have committed fraud and the CIL will become payable.
If there is contradictory information contained within the planning application we would ask for some form of evidence of lawful use and the Planning Officers are very aware of CIL now so will often be more aware of assessing (insofar as they can) lawful use during site visits.
Rebecca
Rebecca Randall, Addaswyd 8 Years yn ôl.
RE: In Lawful Use - High Court judgement
Enthusiast Postiadau: 60 Dyddiad Ymuno: 06/05/2014 Bostiadau diweddarHI
I've brought this up before because its a big issue for us in such a rural authority with lots of agri to resi prior approvals. We are taking a fairly strict stance on it because of the clear precedent set in Hourhope and R.40(9):
Where a collecting authority does not have sufficient information, or information
of sufficient quality, to enable it to establish that a relevant building is an in-use
building, it may deem it not to be an in-use building.
The emphasis does seem to be on the applicant proving a lawful and active use, rather than that it could be used for that purpose or it is hoped to be, or that we should take their word for it, which is what we tend to do for prior approvals because that is a different test.
In most cases, its easy to tell if a building has been in lawful use or not, I regularly contact our Revenues team for business rate and Council Tax records, and sometimes there's a previous pre-app or application with site visit photos. The more difficult ones are agri buildings to dwellings. We ask for the agri holding ref and plan and records of deliveries to prove a continuous use. If the building is within a group of farm buildings where the farm is obviously active, then we tend to accept that the building to be converted will have been in lawful use. But if its out in the middle of nowhere its more tricky - sometimes near on impossible - to prove.
I would take the word of the applicant or agent because they have signed a declaration. I dont think that reflects the advice in Hourhope or R.40(9), from my reading anyway.