Tuesday, 20 April 2010

4-year rule or 10-year rule?


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

25 comments:

Martin H Goodall LARTPI said...

In case anyone was wondering, Sumner did not go to the Court of Appeal, and so the uncertianty to which I drew attention continues.

Lisa said...

Hi Martin

The Council i work for recently refused a LDC for the use of a shed as an independent dwelling because:
a) it was occupied by the applicants daughter only.
b) the supporting affidavits only demonstrated occupation from 2006 to 2012 and not up to the present (Aug 2014).
c) no utility bills were provided to demonstrate it was occupied independently.
Based on the evidence submitted I concluded that it was only occupied as 'ancillary' accommodation and was not for a continous 4 year period. Overall however as it was within the curtilage of a dwellinghouse I concluded that its occupation as a separate independent dwelling resulted in a material change of use from a single dwelling to 2 dwellings and as such it should meet the 10 year rule rather than the 4 year rule.
I appreciate you only have the above information but based on this would you consider the Council were correct in refusing the certificate?

Martin H Goodall LARTPI said...

If it is considered that there has been a material change of use so that a separate private dwelling has been created, then it is the 4-year rule that applies. This applies even if the creation of the separate dwelling results from a breach of condition (see the Arun case).

Once four years’ continuous use has been proved, it need not be continuous after the end of that period (see Panton and Farmer). It is, however, necessary that the use should be in existence at the date when the application for an LDC is made, even if there has been some discontinuity in the use between the end of the established 4-year + period of occupation and the date of the LDC application.

However, Panton and Farmer only applies after a 4-year use has been established. Any discontinuity in the use during the claimed 4-year period will defeat the claim.

Anonymous said...

Martin,

I have a query on the enforcement point. If a enforcement query was open and then closed again because the use was restored to its original state does this reset the clock. My angle is that if the owner did restore the use of an outbuilding and then subsequently change the use to a single dwelling again would the 4-year us claim be valid or does its validity depend on the weight of the enforcement query i.e. query vs notice etc.
Thanks,

William

Martin H Goodall LARTPI said...

If I have understood the recited facts correctly, there was a breach of planning control that was the subject of investigation by the council, but the breach was remedied by cessation of the unauthorised use without any enforcement notice having been served. A further breach of planning control then occurred subsequently, and is continuing. This is a fresh breach of planning control, and so the clock started again from zero upon the occurrence of this further breach. No part of the time during which the previous breach of planning control subsisted can be counted for the purposes of the 4-year or 10-year rule (whichever applies here).

Brian Sinkinson said...

I have an extension to the main house to the rear and side linking the house to the garage and used as a room and was completed over 4 years ago in 2011 without planning permission. It is in excess of 4m deep so probably not permitted development. The council were made aware of this and wrote to me two years ago that I should apply for planning permission. I never did and never heard from them again hoping to get past the 4 years which have now elapsed. There was no enforcement order.

My concern is that the original planning permission for the new build house in 2009 had a condition stating: not withstanding provisions of Town & Country planning act 2008 - no garages, extensions, sheds, hard standing, means of enclosure etc shall be erected without the express written permission of the local planning authority.

Does the 4 year rule still apply given the condition above?

Martin H Goodall LARTPI said...

In answer to Brian Sinkinson (19.5.16), I would give the same answer as I gave to another enquirer on another post: - Where a breach of development takes the form of operational development, the 4-year rule applies (dating from substantial completion of that operational development). With the exception of the change of use of an existing building to use as a single private dwelling (to which the 4-year rule applies), all other breaches of planning control are subject to the 10-year rule.

The only exception is where a breach of condition (to which the 10-rule would normally apply) results in the creation of a separate dwelling. This is covered by the 4-year rule (see Arun DC v. FSS [2006] EWCA Civ 1172). However, it is the only example of a breach of condition being subject to the 4-year rule.

So if a breach of planning control takes the form of a breach of condition, the 10-year rule applies. Arguably, a breach of planning control might be both unauthorised operational development and a breach of condition, but in that case it would be the 10-year rule that applies.

Anonymous said...

Martin, I am chairman of a village cricket club and we have had two cricket nets in place for well over twenty year. The sit consists of two mats laid over sub-base with concrete retaining wall at ground level, which also provides the anchor point for metal poles that support the netting round the two mats. We have been in contact with the local council to see if planning permission is required for a like for like replacement. They have been unable to find any record of previous planning permission being granted (it is possible that it was not required for such developments in the past?)but don't seem convinced by the argument that this development has been in place for a long period of time and therefore should not need new planning permission. What evidence do you think would be persuasive and/or sufficient to make our case please? We are likely to be able to show invoices etc. as well as provide testimony from playing members, but would that be enough in your view? Many thanks

Martin H Goodall LARTPI said...

In answer to the anonymous query of 19 July - What is being proposed would appear to amount to operational development, not a change of use. Like-for-like replacement is not exempt from the requirement to obtain planning permission, but the fact that this is simply a replacement of an existing ‘structure’ would clearly be a material consideration in determining the acceptability of the proposed development in planning terms.

The actual use of the site would appear to be of such long standing, that no issue as to its lawful use should now arise. If there was no planning permission in the first place, it has clearly become immune from enforcement (and therefore lawful) under the 10-year rule.

Thus all that is required is a simple planning application for the new cricket nets (including any associated works, e.g. hardstandings, etc.), supported by illustrative material showing the existing nets, to demonstrate the similarity of the new development to the existing development.

Anonymous said...

Martin

Many thanks for your clear and very helpful reply.

Anonymous said...

hi can anyone help
im going in for a ldc but the property has been empty for the last year will this go against me
thanks
scott

Martin H Goodall LARTPI said...

I can’t give free legal advice here, but I would say to Scott (27 August) – “You could have a problem there.” Proper legal advice would clearly be essential in these circumstances.

Anonymous said...

Dear Martin,

One of our client bought a residential property with a unofficial roof terrace. The previous owner, during the sales of the property has provided a letter to confirm that the flat roof access, decking and railing has been in place and the roof terrace has been continously used for more than 3 years.
Does the 4 years rule applies here or both 4 and 10 years rule applies if our client wishes to proceed to obtain a Lawfulness Certificate? Given your explanination on the potential difference between the lawfulness existants of the strucutre and the use of the space.

YY

Martin H Goodall LARTPI said...

In answer to “YY”, if the ‘unofficial roof terrace’ is within the original planning unit (i.e. within the boundaries of the property, bearing in mind that the property extends right up to the sky - usque ad coelum), then there would appear to have been no change of use as such, but the building operations carried out in order to form the roof terrace would appear to have been operational development requiring planning permission. The 4-year rule applies in relation to any enforcement action against such development.

I recall a case in which an enforcement notice was served against just such a roof terrace outside the 4-year period (wrongly alleging a change of use). Unfortunately, the recipient of the notice failed to appeal against it, so it took effect and by the time they sought legal advice there was no way in which the notice could be challenged. They were forced to comply with it.

On the facts recited, it appears that the building works are not yet immune from enforcement under the 4-year rule, and so an application for a lawful development would be premature, and might well precipitate enforcement action.

Anonymous said...
This comment has been removed by a blog administrator.
Martin H Goodall LARTPI said...

I inadvertently removed the comment above [finger trouble!]. The question was - If there is a restriction in place preventing permitted development, does the 10 year rule still apply?

In answer to this anonymous query of 16 September, if permitted development rights are removed, planning permission will be required if it is desired to carry out a development which would otherwise have been PD. If such development is nevertheless carried out without planning permission being obtained, this is a breach of planning control. The 4-year rule will apply id the unlawful development consists of building, engineering or other operations d, or a change of use to a single private dwelling; and the 10-year rule will apply to any other unauthorised change of use. (Note that the fact that a condition in a planning permission has removed the PD right does not make the unauthorised development a breach of condition as such.)

Anonymous said...

Dear Martin,

If a house is built with planning permission granted and building regs signed off upon completion of the house, BUT the subsequent owners find that the house was built marginally larger than the original planning permission granted by the builders, does the 4 year rule apply?

DS

Martin H Goodall LARTPI said...

There are two answers to this question from DS - First, if the enlargement really was only marginal it may be regarded as de minimis, i.e. not materially different from the development that was authorised by the planning permission and therefore still within the scope of that permission; but, secondly, if the enlargement was sufficient to be significant in planning terms, then this development was unlawful, but will be subject to the 4-year rule, so that it will become lawful four years after the date on which it was substantially completed.

Anonymous said...

This is very clear, thank you. Final question in this regards - once subject to the 4yr rule is an LDC required for the house to be sold on or would this be simply immaterial?

Martin H Goodall LARTPI said...

An LDC is only required if there is doubt or dispute as to the lawfulness of the development in question. If a development has quite clearly become lawful under the 4-year rule, there should be no need to apply for an LDC. The same would apply where less than four years have elapsed since the development (of this particular building) was completed but the dimensional discrepancy is really of no significance, although this latter point could admittedly be open to differing views.

Anonymous said...

Hi
We are dealing with a complaint regarding a disused nursery site with dwelling. The curtilage of the dwelling is clear, and the site owner has constructed a kennel block outside of the residential curtilage and on land that we class as agricultural. The kennel block is being used to house approximately 7 dogs. The owner is claiming that the kennels have been in situ for over 4 years. If he is able to provide evidence of this, would that then mean he could lawfully keep the dogs in the kennels, or would it just mean the kennel block can stay, but the unauthorised change of use would not be lawful as 10 years hasn't passed. Thanks

Martin H Goodall LARTPI said...

I cannot comment on the actual facts of the case raised by my anonymous correspondent on 19 May, not having those facts fully before me, but one point that occurs to me is that if the kennel has been erected within the same planning unit as the dwelling (irrespective of whether or not it is within the actual domestic curtilage), then if the keeping of dogs is ancillary to the C3 use of that planning unit, there may not in practice have been a material change of use, although consideration should be given to Wallington v SSW so far as the number of dogs is concerned.

If, however, the kennel has been erected on agricultural land that lies outside the residential (C3) planning unit, then on the basis of both Mid Suffolk and Sumner it would appear that, although the erection of the dog kennel itself may now be immune from enforcement (and therefore lawful) under the 4-year rule, the keeping of dogs would appear to be a material change of use of that other planning unit on which the kennel is located (and this includes the area occupied by the kennel itself as part of that planning unit), and so would be subject to the 10-year rule.

It has been argued in the past that this leads to an anomalous situation, whereby the erection of a building becomes lawful under the 4-year rule, but its use remains unlawful until there has been 10 years’ continuous use of that building. However, this appears to be the effect of the wording of section 171B of the 1990 Act, and the judgments mentioned above were based on this wording.

The same point arose in the notorious Welwyn Hatfield case, and was discussed at some length in the judgment of Lord Mance. The conclusion was that section 171B(2) applies only where there has been a change of use of an existing building (in that case to use as single dwellinghouse). It followed that, whilst the erection of the building in that case (which was not in practice the building that had been authorised by the planning permission, even though it was ‘got up’ to look like it externally) was now, potentially, lawful under section 171B(1), its use came within the category of “any other” breach of planning control, under section 171B(3), and was therefore subject to the 10-year rule. In practice, however, due to the deliberate deceit practised by Mr Beesley, even the erection of the building did not benefit from the 4-year rule, because the Supreme Court invoked the Connor principle to defeat it.

[An interesting aside to the Welwyn Hatfield case is that the Secretary of State took the side of the developer (Mr Beesley), apparently on the basis that section 171B had not been intended by parliament to operate in the way contended for by the LPA in that case.]

Laura said...

Hello,

I am currently dealing with an enforcement complaint regarding the change of use of an attached garage (Permission granted in 2007) and part of the existing dwelling, into a totally separate dwelling. Council tax records show it started paying separate council tax in May 2008.
Would the 4 or 10 year rule apply here please?

Thanks,
Laura

Martin H Goodall LARTPI said...

In answer to Laura's question, I am wary of commenting on a case where I do not know the whole facts, but the key to this situation would appear to be the Court of Appeal decision in FSS v Arun DC [2006] EWCA Civ 1172, which confirms that where the breach of planning control (even if it is a breach of condition) results in the creation of a separate dwelling, it is the 4-year rule that applies.

As to the actual answer in the case that has been raised, this must necessarily depend on its precise facts. Council tax records may be one factor, but they may not be determinative in themselves. Continuous residential occupation must be proved (on the balance of probability).

Martin H Goodall LARTPI said...

I should add, in order to avoid any misunderstanding, that this applies only where there is a material change of use of an existing building. Where the dwelling takes the form of a newly constructed building, it is clear from both the Mid-Suffolk and Welwyn Hatfield judgments referred to in a previous comment above that this is an "other" breach of planning control, to which the 10-year rule applies under section 171B(3).