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Lawful Development Certificates

Lisa Walton, modified 9 Years ago.

Lawful Development Certificates

Enthusiast Posts: 30 Join Date: 15/09/14 Recent Posts

Can anyone help me on this - I'm dealing with a LDC for an existing use.  The use is as a structure, within the curitlage of a building, as a seperate dwellinghouse.  The applicant claims that it has been occupied for a period of more than 4 years.  Firstly the building has not been constructed lawfully and would have required planning permission. It is less than 10 years old. On the balance of probabilities it has been occupied as ancillary use only which only takes it up to 2012.  So it has not been occupied for a continuous 4 year period up to the present.  No utility bill or other evidence has been submitted and no council tax has been paid on it.  My question is whether it can be refused on the basis of not falling within the 10 year period for construction of a building as they are not applying for a certificate for the retention of the building but only for its use as a seperate dwelling. 

Any advice would be appreciated.

Former Member, modified 9 Years ago.

RE: Lawful Development Certificates

Lisa

If (?) I have read your post right this is my advice. Someone cannot gain a lawful use on a building that is unlawful in itself. So the first question that needs to be addressed is, is the building lawful in its own right or not. If not, then the CLEUD must fail on  a point of law.Secondly the use that is being applied for, has to be being carried out at the time the application is submitted. You appear to be saying that it is not. Therefore on the face of it, based on the information supplied, there is no case for a CLEUD. The reasons for refusing the CLEUD, if that is the course of action you take, should reflect both these points.

However two points to note, based on the `Arun` case it is 4 years for a residential lawful use and, there is other case law ( Panton and Farmer 1999) that if they can demonstrate on the balance of probability that they have four continuous years and then a gap and then re-start again at the point of submission that too counts.

Lisa Walton, modified 9 Years ago.

RE: Lawful Development Certificates

Enthusiast Posts: 30 Join Date: 15/09/14 Recent Posts

Thanks Chris

Yes - I think you have understood my question.  There is no evidence that the use has continued up to the present.  I wanted to know if the certificate would fail for the use if the building itself isn't lawful.  I have concluded that the use is not lawful and could still be enforced against partly because they haven't demonstrated 4 years continuous occupation as an independent dwelling and partly on the grounds that the building itself hasn't been lawfully constructed for a period of 10 years or more.

Former Member, modified 9 Years ago.

RE: Lawful Development Certificates

Hi Lisa

I am still a bit confused as to why 10 years is crucial. I may not be reading this right but if the building has been constructed then it is operational development and 4 years     would apply.  If it is used as a single dwelling then they must prove on the balance of probablities that the use has taken place for four continuous years which, it seems that    they have scant evidence that is the case, it would be right to refuse the LDC.

Lisa Walton, modified 9 Years ago.

RE: Lawful Development Certificates

Enthusiast Posts: 30 Join Date: 15/09/14 Recent Posts

Hi Diane

You are correct I'm getting my 10 year rule and 4 year rule mixed up.  Operations development needs to have been in existence for a period of 4 years or more (not 10) before it becomes immune from enforcement.  Thank you for flagging that up.  I do still think that they have not submitted sufficient evidence for it to be an independent dwelling.  Thanks

Former Member, modified 9 Years ago.

RE: Lawful Development Certificates

Hang fire......its not that simple!

Here is an extract from MArtin Goodall`s blog which discusses this issue in more detail :

If operational development takes place without planning permission and four years pass following its substantial completion without enforcement action having been taken against that development, then it becomes lawful by virtue of s.171B(1). There is, however, a well-known exception to this rule, as demonstrated by Murfitt. [The rule also applies to works which are not development, for example because they were purely internal and did not affect the external appearance of a building – Somak Travel.]

This requires an examination of the relationship of the operational development to any change of use and it may perhaps depend on or be influenced by the relationship between the building and the planning unit. Does the planning unit comprise the building and its curtilage (i.e. is the building effectively the whole of the planning unit, together with any curtilage which it may have) or is the building erected on part of a larger planning unit? In that case it may be necessary to consider what relationship the use of the building bears to the use of the planning unit as a whole.

Sullivan J (as he then was) surprised everyone by suggesting in R (Mid Suffolk DC) v. FSS [2005] EWHC 2634 that merely because a structure has become immune from enforcement action because it has been in existence for four years does not necessarily mean that any particular use of that structure will also be lawful. He pointed out that Section 75 (which provides that a planning permission for the erection of a building may specify the purposes for which the building may be used, and if no purpose is specified then the permission may be taken to authorise the purpose for which it is designed) has no application in relation to a building the erection of which was not authorised by planning permission but has become lawful solely by reason of the 4-year rule.

We now also have the case of Sumner v. SSCLG [2010] EWHC 372 (Admin) in which judgment was given by Collins J on 11 February 2010. In Sumner, an EN was served in respect of unauthorised C/U of a building. The appellant argued (both on appeal and in the High Court) that the use derived from the erection of the building (i.e. it was the purpose for which the building was erected) and therefore the 4-year rule applied. Paul Stinchcombe argued that s.75(3) should apply by analogy, but Collins J rejected this argument. Sullivan J’s earlier dictum in Mid-Suffolk does not seem to have been referred to. Stinchcombe’s argument was that if the building itself was lawful under the 4-year rule, it would produce a ridiculous situation if it could not lawfully be used for any purpose.

Collins J suggested it could be used for any purpose ancillary to the lawful use of the planning unit as a whole, but this implies that (a) there is an existing planning unit which is only partly occupied by the building, and (b) that the building remains part of that larger planning unit and is not hived off into a separate planning unit comprising only the building itself, or perhaps the building and a reasonable curtilage.

If there is a pre-existing lawful use of the site itself (whether by express permission or under the 10-year rule), then erection of a building or the execution of engineering works for the purposes of that existing lawful use will not give rise to any issue regarding change of use. The use of the building or other works for the same lawful use as the planning unit as a whole will not be in question, and the operational development involved in its erection is capable of becoming immune from enforcement under the 4-year rule.

Difficulty only arises where the use of the new building or other works also represents or is associated with a change of use of the planning unit as a whole. In this case, the rule in Murfitt clearly comes into play. The unresolved point relates to the use of a building which constitutes the whole or substantially the whole of the planning unit, where the use of the completed building differs from the previous use of that site, or where the building (together with any curtilage which it might be given) is hived off from the previous planning unit and becomes a separate planning unit, again used for a different purpose compared with the pre-existing planning unit.

This effectively resolves itself into two separate questions :

(1) If the building constitutes the whole or substantially the whole of the planning unit, should consideration be given to the issue of a material change of use of that planning unit (comprising the building and any curtilage of that building), as distinct from the operational development involved in its erection?

(2) If the building occupies only part of a planning unit and remains part of that planning unit, but the use of the planning unit changes with the erection of the building, does the lawfulness of the use of the building depend on the lawfulness of the use of the planning unit as a whole? If so, that would depend on the operation of the 10-year rule, and the rule in Murfitt would appear to confirm this.

I understand that Sumner may be going to the Court of Appeal, so we shall have to wait and see.

© MARTIN H GOODALL

I would suggest that the devil is in the detail of your case having regard to the above

 

 

Lisa Walton, modified 9 Years ago.

RE: Lawful Development Certificates

Enthusiast Posts: 30 Join Date: 15/09/14 Recent Posts

Thank you - that was very helpful.  Sorry I didn't respond to this reply earlier.  It did clarify the situation in my mind.  I just wanted to say thanks for the advice. 

Lisa

Lisa Walton, modified 9 Years ago.

RE: Lawful Development Certificates

Enthusiast Posts: 30 Join Date: 15/09/14 Recent Posts

Hi There

The LDC was refused.  We have now recieved a letter from the Agent indicating that we were wrong to refuse the application and that it should have been granted as a dwelling that had been occupied for a period of 4 years.  The fact that they did not register for council tax or register to vote is not a reason to withold the certifcate if it indeed, on the balance of probabilities, it has been used as a dwelling. They are simultaneously resubmitting the LDC applicaiton and appealing with costs.  I feel certain that the correct decision was made in this case

  • Firstly photographic evidence suggested that the building was erected in 2005 and that the applicants daughter lived in this from 2005 to 2012 and sworn affadavids were submitted to support this.  Whilst they had made the structure self-contained it was only ever occupied by a family member.
  • We requested more evidence of its 'independant occupation' through utility bills etc and nothing was submitted to support 'indenpendent' occupation.  Again if it was truely independent why would they not be able to provide utility bills?
  • No evidence was submitted to demonstrate that it had been occupied for a continuous period up to the date of submission.  Only up to 2012.
  • Finally I considered that as it was a subdivision of the curtilage of the original dwellinghouse, in which it was situated, it was a material change of use (from one dwelling to two) that had not taken place for a continuous period of 10 years or more, rather than the 4 years required for the use of a building as a dwelling.

If anyone can suggest that the decision we made was wrong (i.e. to refuse the certifcate) I would be interested to hear on what basis. 

thanks muchly

Lisa

Kelsey Tim, modified 2 Months ago.

RE: Lawful Development Certificates

New Member Posts: 3 Join Date: 24/04/24 Recent Posts

Based on the information provided, it seems the applicant is seeking retrospective permission for a structure used as a separate dwelling within the curtilage of a building, claiming it has been occupied for over four years. However, the structure was likely constructed without proper planning permission and is less than 10 years old. The evidence suggests it has only been ancillary to the main use until 2012, and there's no substantial proof of continuous occupation. The absence of utility bills and council tax payments further raises doubts. The key question is whether refusal can be based on the building's construction falling outside the 10-year period, as the application solely concerns its use as a separate dwelling, not its retention. Refusal on these grounds may be valid, pending further evidence or clarification from the applicant.