This popular and widely read blog acts as a Legal Commentary on issues affecting Town & Country Planning including recent changes in planning legislation and judicial rulings in planning cases, as well as some thoughts on other issues arising in the course of my work as a Planning Lawyer. It was originally intended mainly for fellow planning professionals, but all are welcome to read it. The views expressed are my own and nobody else’s.
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Friday 16 March 2012
The 4-year rule
UPDATE (January 2024) See latest post for th curent position. As at 17.1.24, a commenecment order to bring section 115 of the Levelling-up Act 2023 into force had still not been made. The 4-year rule therefore continues operate for the time being.
UPDATE (28 Feb 2023) In case you hadn't heard, the days of the 4-year rule may be numbered. There is a provision in the Levelling-up and Regeneration Bill which, if it is passed in its current form, will abolish the 4-year Rule, so that the 10-year Rule will then apply to ALL breaches of planning control.
br/> The press have recently picked up on a case in Mole Valley District in Surrey, where the Council has granted a lawful development certificate for a dwelling ‘hidden’ in woodland in the district. It seems that the neighbours and some local councillors are not happy about this.
As in all cases of this type, the dwelling became immune from enforcement and therefore lawful because it had been continuously occupied as a dwelling for four years. The rule is quite straightforward. If a building is equipped with the essential facilities required for day-to-day domestic existence, so that it can genuinely be described as a dwelling, and it is continuously used as a dwelling for at least four years, then its occupants are entitled to apply for a Lawful Development Certificate. The dwelling would be lawful even without the certificate if the qualifications have been met; the certificate simply confirms the existing position.
br/> There are two exceptions to this rule. The first is what is known as the Connor doctrine, and was well illustrated by the decision of the Supreme Court in Welwyn Hatfield v. SSCLG. In that case, Mr Beesley had deliberately set out to deceive the local planning authority by obtaining planning permission for an agricultural building, intending all along to erect a house. He purported to implement the planning permission, and what he built looked outwardly similar to the agricultural building for which planning permission had been granted, but it was designed and equipped as a house. Mr Beesley and his family then occupied the house for four years, following which an application was then made for a lawful development certificate. This was refused by the local planning authority on the grounds of Mr Beesley’s fraudulent conduct, but granted by an Inspector on appeal. A challenge to that decision by the Council in the High Court succeeded, but the Court of Appeal reversed this decision. However, the Supreme Court finally sided with the Council, deciding that Mr Beesley’s deliberate deceit prevented him from benefiting from his wrongdoing.
br/> The Supreme Court nevertheless made it clear that it was only Mr Beesley’s deliberate deception in making a fraudulent planning application which had disqualified him from claiming immunity from enforcement under the 4-year rule. It is clear from the judgment that conduct falling short of deliberate deceit does not prevent the operation of the 4-year rule. So actions (or inaction) falling short of deliberate deception - for example, simply keeping a low profile, involving possibly refraining from registering on the register of electors, not registering for council tax, not obtaining a TV licence, etc. - do not prevent immunity from enforcement being claimed under the 4-year rule.
br/> The second exception to the 4-year rule relates to “deliberately concealed development”. New rules introduced by the Localism Act which are due to be brought into force shortly (probably next month) will enable a local planning authority who become aware of development which has been deliberately concealed (which is not the same thing as development which has simply gone unnoticed) to apply to the magistrates’ court for a ‘planning enforcement order’. They must do so within six months of the date when they first became aware of the development, but their word as to when that was has to be accepted at face value and cannot be questioned.
br/> Before they can make an order, the magistrates must be satisfied (on the balance of probability) that the development had indeed been deliberately concealed, and they must also decide that it is just in all the circumstances to make the order. If the order is granted, it gives the Council a year in which to serve an enforcement notice, even if this would otherwise have been out of time under the 4-year rule.
br/> How much use will be made of the new procedure remains to be seen. My guess is that such cases are going to be fairly rare. The concealment of the development must be deliberate. So the local authority would have to produce evidence of a deliberate intention on the part of the developer to conceal the development; the fact that the development was in practice concealed may not be enough to demonstrate deliberate intent. It is doubtful whether simply living quietly and not drawing attention to one’s residential occupation of the property would be enough to amount to deliberate concealment.
br/> Further speculation on this issue is unlikely to be very enlightening, and we are going to have to wait for the first cases to go through the courts before it becomes clear what effect the new provisions are likely to have in practice.
br/> Meanwhile, the 4-year rule is alive and well, and I have no fewer than three live cases in progress at the moment.
br/> © MARTIN H GOODALL
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The problem i now have with the Welywn judgement is the comment about the 4 year rule and whether there has been a 'material' change of use.
ReplyDeleteA local authority near me are not issuing lawful certificates for new dwellings as opposed to change of use of an existing building to a dwelling. therefore the certificate is just for a building, with them arguing that the use needs ten year to gain immunity. whilst this does seem to be a correct interpretation of the Welwyn judgement is does seem to make a nonsense of the four year rule for residential use.
a dwellinghosue as a building can be immune after 4 years but its use not until 10 years have passed.
does anyone have a view on this?
The LPA may have in mind the judgment of Sullivan J (as he then was) in R (Mid Suffolk DC) v. FSS [2005] EWHC 2634 when he suggested 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. However, the decision of the Court of Appeal in Arun DC v. FSS [2006] EWCA Civ 1172 is authority for the proposition that if any breach of planning control results in a change of use to use as a single private dwellinghouse then it is the 4-year rule that applies. Carnwath LJ’s judgment took a broad view, so that the breach of planning control itself does not need to comprise a material change of use; it is the effect of the breach that matters. So it seems to me that if use as a dwelling has continued for at least 4 years, then it would be difficult to argue that section 171B(2) does not apply.
ReplyDeleteMartin
ReplyDeleteI accept the findings of the Arun case (it being about 1 mile from me!) but in that case she used her extension as part of her home and then decided to let it out as a separate unit, for students. in such a case there clearly was a material CHANGE of use.
Welwyn Hatfield raises the issue of when the dwelling use is the first use. Welwyn discounted the option of arguing a nil use in the first instance.
there is also an associated case relating to a workshop building and its use [Sumner v Secretary of State for Communities and Local Government [2010] EWHC 372 (Admin) ]
there does, therefore seem to be a problem in those cases where the residential use is the first use and therefore not constituting a material change of use.
BUT
if it is not a material change of use, is there an actual breach?
Steve Jupp has put his finger on a point which I must confess has been troubling me (and no doubt other planning lawyers) for some time. I was aware of the judgment in Sumner, and had hoped originally that it might be appealed, but this did not happen, and so this decision still stands. When I can find the time, I really must have another look at this issue. I don’t believe that parliament intended that the 4-year rule should not apply in this situation, but a literal interpretation of the legislation would appear possibly to indicate otherwise. Steve’s suggestion that there has in fact been no change of use (and therefore no breach of planning control in that sense) might be a practical way of viewing the matter, but I think the outcome could be rather unpredictable if one were to run such an argument in an appeal.
ReplyDeleteI own a live/work house with 28.7% allocated to B1 use and the remainder to C3 use. There are planning restrictions to prevent me using the B1 part of the house as residential. However if I have been using the B1 part of the house as residential for more than 4 years without enforcement, can I use the 4 year rule to apply for a lawful development certificate?
ReplyDeleteI am a bit behind in dealing with some of the posted comments. I cannot advise on the question posed above without being professionally instructed, but the judgment in Arun DC v. FSS [2005] EWHC 2520 (Admin) might possibly apply. This case established that a breach of condition which results in a property being used as a single private dwellinghouse is governed by the 4-year rule. A mixed B1/C3 use is a sui generis use. So a breach of condition resulting in the live-work unit becoming a single private dwelling ought in principle to be covered by the rule in Arun.
ReplyDeletehow does this affect the case when one neighbour plants a hedge and as it grows without pruning for 17 years and raises the land behind the hedge to 3mts above the ground level, what are the rules and where can they be found
ReplyDeleteThe answer to this question is to be found in section 55 of the 1990 Act, which will tell you whether or not it is development and, if so, what type of development. Engineering operations (including earth moving) are subject to the 4-year rule, but if the land raising involved the deposit of refuse or waste materials, then it could be a material change of use of the land, if the purpose of the deposit was primarily the disposal of the waste as distinct from the improvement of the land. In that case, the 10-year rule would apply.
ReplyDeleteThe position is unaffected by planting of the hedge and its subsequent lack of maintenance, although that in itself could be the subject of complaint under other legislation.
I have a detached back garden bungalow which i built in 2006. when I applied for planning permission the council wrote back to and said I didn't need planning permission as long as i don't rent it out or sell it as separate dwelling but could be occupied by family. So in 2009 a new planning enforcement came to my house and said I must cease use of the bungalow but after I showed him the letter from the council he backed off and admitted trying to stop me from from reaching 4 years. So my question is can I register the bungalow as a separate dwelling without any problems from the council?
ReplyDeleteI am not sure that I entirely understand this question, but it would in any event require careful consideration based on its precise facts. It is the sort of point on which Keystone Law’s planning law team would be happy to advise if we were to receive instructions in the matter.
ReplyDeleteI am purchasing a Victorian house (Not listed) which has a kitchen and downstairs bathroom extension at the back from many years ago. More recently a small (2.9m x 2.34m) bedroom has been added above the kitchen. There is no mention of this on the searches. I believe this was done over 4 years ago, would it have needed planning permission and if yes would this now fall within the 4 year rule?
ReplyDeleteIn answer to Helen - Whoever did your conveyancing really ought to have advised you about this. If they failed to do so this amounts to professional negligence, in my view. The extensions may or may not have been permitted development (depending on various factors), but if the building works were substantially completed more than 4 years ago, they will now be immune from enforcement and therefore lawful.
ReplyDeleteBeware of the Building Regulations, though. Even if it is too late now for the building inspector to take any enforcement action, any works which did not comply with the Building Regulations could be a problem in future if you wish to re-mortgage the property, or in the event of a future sale, if the mortgagee or purchaser has a surveyor or solicitor who is on the ball and picks up on this. Admittedly, these sort of things are often overlooked in practice, but I have known of cases where sales have fallen through because an alert surveyor or solicitor spotted the problem.
is there a list of ways to prove that I have been living in a cabin in my woodland without planning permission for 4 years? You mention a few ways, but is there more of a definitive list? Thank you for any guidance you can give.
ReplyDeleteThere is no definitive list of ways of proving compliance with the 4-year rule. It is bound to depend on the facts and circumstances in each case. These may vary considerably between one case and another, and the possibility now that what has occurred might possibly be seen as ‘concealed development’ adds a further complication. Professional advice should always be sought in such cases.
ReplyDeleteHi
ReplyDeleteI built a house around 4 years ago, i lived in it for a while and used it as an office, but circumstances changed and it is not always occupied. I was wondering what to put on a certificate application?
Thanks
hi,
ReplyDeletei have a question i would like answered if possible, if you owned a woodland with a large pond or lake in it and it had not been created by yourself and the woodland was not a sssi could you site a houseboat on the water without any planning permissions?.
Stationing a houseboat on the water would constitute a material change of use of the land. The definition of ‘land’ includes land covered by water. Planning permission would therefore be required.
ReplyDeleteAs regards the query of 7/11/13 relating to a house built 4 years ago, the discontinuity in its subsequent use could be a problem. This is a question that clearly requires careful consideration based on its precise facts, and is the sort of point on which Keystone Law’s planning law team would be happy to advise if we were to receive instructions in the matter.
ReplyDeleteI have a property which has been rented out for much longer than four years. There have been occasional breaks of up to two months between tenancies, but the property was being shown to prospective new tenants, by a professional management company, in those periods. Is this a problem in regards to the definition of "continuous use". Could you please point me to the bit of the Act, or subsequent circulars, where the concept of "continuous use" is introduced?
ReplyDeleteThe answer to the anonymous query dated 09/02/14 can be found in the lengthy 5-part article on “Breaches of planning control – the need for continuity” published in the blog a few weeks ago, in particular Part 3, posted on 23 January.
ReplyDeleteThe relevant statutory wording is contained in section 171B(2) of the 190 Act, but its interpretation depends on various judgments, and in particular the decision in Swale. There is no other guidance on the point of which I am aware.
As to what constitutes an interruption in the continuity of the use so as to stop time running under the 4-year rule, and to re-set the clock at zero, this is very much a matter of fact and degree in each case. It is generally accepted that brief void periods between lettings of rented property do not amount to a cessation of the use, but there is no definitive ruling as to how long such a void period has to be before it amounts to a sufficient interruption in the continuity of the use to prevent the 4-year rule being relied upon. I would not like to hazard a guess as to what view might be taken, either by the LPA or by an Inspector on appeal (either under section 174 or section 195), although a 2-month void period might perhaps be verging on the limit. It would very much depend on the detailed evidence. I can see the strength of the argument in relation to continuing efforts to re-let the property, but it entirely depends on the view taken by the decision maker in light of all the evidence.
If planning permission was granted for the use of a Listed barn as a holiday bungalow with a condition that it shall not be let for any periods in excess of 4weeks, but it is has been let out to the same occupants effectively as a dwelling on yearly leases, does it benefit from the 4 year rule??
ReplyDeleteIn answer to the latest Anonymous query (18/02/14), it depends whether the building could already be classed as a ‘dwellinghouse’ when permanent residential occupation commenced. If so, then it is the 10-year rule that applies to this breach of condition. I rather suspect that this may be the case here, but if the building could not already be classed as a ‘dwellinghouse’ before that date, so that the breach of condition has resulted in the creation of a dwellinghouse, then the Court of Appeal decision in Arun confirms that the 4-year rule would apply in these circumstances.
ReplyDeleteI have dealt with this point elsewhwre in this blog - see the entries relating to holiday lets.
As a resident of a C3 property which lies in a preferred industrial location, I am hoping to obtain a CLEUD under the 4-year rule.
ReplyDeleteMy question is how the position within a preferred industrial location may affect my application and what powers the LPA may use in relation to this?
I don’t think I have properly understood this question. If the property really is a single private dwelling within Use Class C3, why would you want a CLEUD? However, if the lawfulness of this use is in doubt, then a CLEUD is one means of resolving the issue. The fact that the property lies within a preferred industrial area is wholly irrelevant. It is simply a matter of fact and degree as to whether the property can properly be called a dwellinghouse (see Gravesham) and has been continuously used as such throughout the past four years. If the evidence proves this on the balance of probability, then the LPA must issue a CLEUD. It is not a matter of discretion, and issues of policy or preference do not come into it.
ReplyDeleteI have a large chalet in my garden which was an office for 20 years. 5 years ago it was converted to a small holiday let - separated completely from the main house by a fence. It has its own private entrance from the road, separate metered power and comprises a kitchen, bathroom, living and bedroom. It has been continuously let for holiday rentals for the last 5 years – via an agent so easy to prove. Would this qualify for separate dwelling status?
ReplyDeleteIn answer to the anonymous query posted on 24/03/14 - I am always reluctant to give definite answers without being able fully to review the evidence, but it is quite possible that the use of the holiday let as a separate dwelling (assuming the holiday let was not the subject of planning permission, but was entirely unauthorised) may have become lawful under the 4-year rule, but we would need to be properly instructed to advise on the matter if a definitive answer is required.
ReplyDeleteDoes anyone know if living in a residential caravan for four years comes under the four year rule or does it have to be a building? Thanks
ReplyDeleteIn response to Happyman (23/6/14) - The change of use of the land (stationing of the caravan) would be subject to the 10-year rule. Even if it could be argued that the caravan is a structure (see the Woolley Chickens case) it seems that it would be the 10-year rule rather than the 4-year rule that applies (see R (Mid Suffolk DC) v. FSS [2005] EWHC 2634 and the judgment of the Supreme Court in Welwyn Hatfield v. SSCLG [2011] UKSC 15 (per Lord Mance, at page 9 [paragraph 17]).
ReplyDeleteVery informative! With planning permission I built a residential detached house in a conservation area, I was granted planning permission, I submitted my raw materials, waited 10 weeks and began development, Once completed we moved into our new house. Four years later the council has said that they did not confirm raw materials and aren't happy with brick work despite it being an expensive hand made brick... I've had stonework around windows and they said they don't like the windows nor the roof tiles and now they are seeking legal advice to change the brickwork, tiles and windows. Realistically, redoing the whole house! I'm having sleepless nights until I read this blog about the four year rule... Would appreciate any advice on this dilemma!
ReplyDeleteThe condition requiring approval of materials would be subject to the 10-year rule, unless it could be argued that the condition "went to the heart of the permission", in which case the entire development would arguably have been unlawful, and would now be immune from enforcement under 4-year rule.
ReplyDeleteIn any event, the Council’s failure to approve the samples that were submitted for approval must put them in a very difficult position in relation to enforcement. A robust lawyer’s letter might help to deter them. Their own legal people would, I suspect, not be at all happy about taking any form of enforcement action in these circumstances. So, either wait and see what happens, or set the legal rottweilers on them now by way of a pre-emptive strike.
I had done an extension of my kitchen more than 4 years ago without any planning permission. Am I able to make use of the 4 year rule?
ReplyDeleteWould this be the same for a porch that was built without planning permission 4 years ago?
Thanks
The 4-year rule applies to operational development – i.e. it becomes immune from enforcement four years after it is substantially completed. However the rules relating to ‘concealed’ development need to be borne in mind, which can (in some circumstances) defeat claimed immunity under the 4-year rule.
ReplyDeleteI have several acres of land on which there is a 1930's house, last occupied in the 1960's. Walls in good condition; roof, windows doors - all intact, but in poor condition. It is fairly secluded, but not completely hidden.
ReplyDeleteI would like to reinstate it as a dwelling, and move in.
I have sought some advice locally. An established firm of architects have advised simply to repair and move in, and wait for 4 years, another advised applying for planning.
What would you advise?
Thanking you in advance.
In answer to Jason – it depends. You need proper legal advice. Email me for a fee quote.
ReplyDeleteI live in a block of four flats. One flat owner has control of the garden which has an outhouse. He applied for planning permission to extend the outhouse as a workshop/outhouse extension. He was granted permission and the work is almost complete, but he has in fact built a self contained flat with kitchen, toilet/shower and bedroom. The outhouse was originally used as a spare bedroom for the flat but has not been used as such for well over 5 years.
ReplyDeleteThe deeds for the house, affecting all flats, state that no part of any flat can be let or sold as a separate entity.
If I do nothing then after 4 years could the flat owner claim it as a self contained flat and possibly rent it out or sell it as a self-contained unit, separate from the main flat to which it is currently tied?
Thank you
The simple answer to John Singleton (28 Feb) is to alert the enforcement officer to the situation in good time before the 4-year period expires.
ReplyDeleteIf it goes outside the four years, there is still a possibility that it might be treated as 'concealed development', but rather than relying on that it would be better to get it sorted out now.
I have a question for you. I completed an extension some five years ago to a ground floor residential leasehold flat in a conservation area (the building is unlisted). I had planning permission but on recent examination the finished works were not precisely the same as the works submitted at planning (there is a difference in the agreed design of the roof, though no difference in total area).
ReplyDeleteIn this case would the 4-year rule apply?
In answer to the anonymous query of 5 April, the 4-year rule might apply, or it might not. It would require a proper consideration of all the relevant facts, and so would require formal professional instructions.
ReplyDeleteI'm still struggling with separating out operations, which might be lawful under the 4-year rule, and a proposed use, which might not be under the 10-year rule! If a building has been built, and fitted out for residential use, but has never been used residentially, it is still a dwelling. An unauthorised dwelling (as opposed to a change of use to a dwelling) does not become immune until 10 years has elapsed, but the operations would be lawful after 4 years. Am I right in therefore concluding that what results is a lawful building with no use?
ReplyDeleteIt used to be assumed that if a building was erected without planning permission, and this development became immune from enforcement (and therefore lawful) under the 4-year rule, this immunity/lawfulness automatically applied also to its use. However, Sullivan J (as he then was) pointed out in R (Mid Suffolk DC) v. FSS [2005] EWHC 2634 that this is not so, and that the fact that the building itself becomes lawful does not render its use lawful. This was confirmed by the Supreme Court in Welwyn Hatfield.
ReplyDeleteThis does lead to a potentially anomalous situation, because if the previous use of the land on which the unauthorised building is erected was materially different from the use to which the building is put, the resulting development will still be subject to the 10-year rule rather than the 4-year rule. However, if the unauthorised building is (say) an extension to an existing dwelling [assuming it is not permitted development under Part 1 of the Second Schedule to the GPDO] its use will derive from the lawful use of the existing planning unit within Use Class C3, and the 4-year rule would still apply in such circumstances.
It was argued in Sumner v. SSCLG [2010] EWHC 372 (Admin) that the use of an unlawfully erected building is authorised such section 75 of the 1990 Act, but this argument was firmly rejected by the court. Section 75 applies only to buildings lawfully erected with the benefit of planning permission.
Hi. So glad i found this forum. I have a question i hope you can help with. We are in the process of selling our house and the buyers have queried whether we had planning permission for dropping our kerb in front of the property. At the time we completed the dropped kerb pack the council sent and were told we wouldn't require permission. Now however we are being told otherwise and risk the house sale falling through.
ReplyDeleteRegardless of whether we needed permission or not, would the 4 year rule apply in our case?
Thank you.
Less than 4 years ago a neighbour in an AONB erected a large garage/outbuilding without apparently applying for planning permission. The developed land appears to 1) just fall within their field as oppose to 2) the curtilage of their dwelling. If however the latter 2) were the case, once 4 years are up, would the development be immmune from any enforcement action? If the former 1) is the case, would the development not be subject to the planning permission regime and limits or any other alternative regime?
ReplyDeleteWe have a block of land behind our house on which we keep our horses, the council have issued an enforcement notice requiring us to move our horses off the land. We had an application for the erection of stables and change of use of the land from agricultural to mixed agricultural and equine turned down by the council and by appeal. However we have written proof that horses have always been kept on the land for the last 33 years without interruption along with a small number of sheep. We have now applied for a certificate of lawfulness, the council are telling us to move our horses off the land by the 14th if we do so will we loose our right to a certificate of lawfulness?
ReplyDeleteIn answer to the query from Lee Crawford Studio (28 April): So far as the drop kerb and pavement cross-over is concerned, these works presumably fell outside the residential planning unit and affected only the public highway. As such, the agreement of the Highway Authority to those works was sufficient in itself.
ReplyDeleteHowever, the formation of an access to the highway (quite apart from the highway works themselves) might have required planning permission. Forming an access to a highway is permitted development under Part 2, Class B of the Second Schedule to the General Permitted Development Order in certain circumstances, but is hedged about with qualifications and restrictions. I haven’t time to go into it here, but it is discussed in my book, “A Practical Guide to Permitted Changes of Use” in Chapter 5 at paragraph 5.2.9.
In answer to the anonymous query of 29 April, if the enquirer is concerned about a possible breach of planning control, they should alert the planning enforcement officer to the position, so that it can be properly investigated.
ReplyDeleteIn answer to ‘futureweb’ (4 May), it is essential that an appeal against the enforcement notice should reach the Planning Inspectorate before the date on which the notice takes effect, failing which this notice must be complied with, irrespective of what arguments there could have been or might have been as to the lawfulness of the use. A timely appeal under section 174 of the 1990 Act is the only way that the matter can be resolved, once an enforcement notice has been issued and served.
ReplyDeleteIf the enforcement notice has already taken effect (i.e. if no appeal was made before it became effective), then an LDC application is bound to fail, because section 191(2)(b) makes it an essential pre-condition that the uses or operations in respect of which the LDC is sought do not constitute a contravention of the requirements of any enforcement notice then in force.
I built a garage cum workshop and storage building next to my bungalow in 2010. It had planning permission but with a condition that it not be used for any purpose other than as a garage etc. My daughter and son in law came later to live in our spare bedroom but With the birth of a child on the horizon it was clear that this would be totally inadequate and they would need larger accomodation. Buying their own house was out of the question. So I converted the garage into a small house - two beds in the roof space, a tiny lounge, kitchen and bathroom. They have been living in the conversion for 6 years this summer. I did not apply for a change of use or any other permission. I now wish to extend this building to increase the space for the growing family. What should I be doing (if anything) planning permission wise? Many thanks.
ReplyDeleteThe answer to Harry Farnsbarns (6 May) is – “it depends.” Harry really needs to take proper legal advice on this matter.
ReplyDeleteI'm confused about the 4 year and 10 year rules. We had planning permission in 2003 to build a replacement house on our smallholding and convert the existing bungalow to visitor centre/shop as part of our agricultural business. We built the house and moved in feb 2006. There was a condition stating that we must convert the bungalow as per the approved plans within 2 months of first occupying the house, which we didn't manage to comply with.
ReplyDeleteThe planners have classified the permitted use as retail A1 + educational (we had planned to run craft courses). We have actually used the building as a farm shop, selling our own alpaca products. We recently applied for change of use agriculture to residential, and I think the planners have reluctantly accepted that our use is and has been agricultural and was so in March 2013. They are now outside the 4 or 10 year rules for enforcing our breach of condition and our use of the building, but they claim that the agricultural use in 2013 was not lawful because the 10 years had not elapsed at that time. Can they apply it retrospectively like this? Does the 10 year apply or is it 4 years?
We managed to get the decision referred to committee because we have a lot of local support but the planners managed to cast doubt in the committee members over the legality of our position and the vote went against us by one vote. Please help us, thank you. Julia
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.
ReplyDeleteThe only exception occurs 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.
The problem posed by the anonymous enquirer on 20 May is more complex than this, and could only be answered upon full professional instructions being taken.
Can I check the position with regards to a garage attached to a house. The situation is that 50% an attached double garage had permission to be converted to ancillary accommodation in 2012, however a planning condition was imposed restricting the use of the remaining garage, to the garaging of vehicles only.
ReplyDeleteI suspect this would be a very difficult condition to enforce, however, would the use of the garage for storage of washing machine, large fridge freezers etc, thereby in breach of the planning condition be subject to the 4 or 10 year rule.
I am thinking that as there is no operational development involved and as the use of the garage still remains as part of the overall C3 planning unit, therefore has remained part of the residential use, the 4 year limit would apply, and the Council could not now enforce the breach, provided it can be shown that the 'non-use' for parking vehicles has taken place for at least 4 years.
I would be grateful for your thoughts.
I am afraid I cannot agree with Chris Sampson that it is the 4-year rule that would apply here. If there is a breach of condition then it is the 10-year rule that would apply in these circumstances.
ReplyDeleteThere is, however, a question mark over the alleged breach of condition. It might (perhaps) be argued that storage of a washing machine, fridge freezer etc. is ancillary to the garaging of vehicles (as it's the sort of thing people put in their garage).
Alternatively, if that argument won’t work, there would seem to be a strong case for making a section 73 application so as to vary the condition to allow other domestic storage. If there is a possibility of enforcement action being taken or threatened, this may be advisable in any event. Enforcement action could take the form of a Breach of Condition Notice, which would be very difficult to counter.
Hi Martin,
ReplyDeleteThanks for an awesome blog. Dealing with an interesting case now...
Facts: Small block of 4 flats built in 2010. LPA is Cambridge City Council. Owner converted basement (including the creation of new lightwells) into an additional flat in 2011. LPA opened 'complaint investigation file' in 2011 but never issued formal enforcement. Owners first applied for the retention of the new flat. This was REFUSED by the LPA. Owners then applied for consent to use the newly created basement (and retain the lightwells) as storage ancillary to the 4 upper flats. This application was GRANTED by the LPA with no conditions (other than 3 year commencement) attached. The basement remained in use as a flat...
Question: Does the 4 year rule apply in this case? There was an initial refusal followed by the opening of a complaint file and then a consent to use the basement as storage. Flat has been in undisturbed use for 4+ years now.
Thanks :-)
My answer to Jacob (24.5.16) cannot be taken as legal advice, and so must not be relied upon as such, but on the facts recited it does look as though the use of this flat may now be immune from enforcement, and therefore lawful (assuming it was continuously occupied as a separate residence).
ReplyDeleteOnly the service of an enforcement notice can stop the 4-year rule running. Any preliminary steps to enforcement action, investigations or Planning Contravention Notice, etc. would be of no effect in relation to the 4-year rule. There would, however, have to have been continuous residential occupation of the flat, as a separate dwelling, throughout the four years in question. Any significant void period (i.e. more than a few weeks) within the claimed four years would have stopped the clock and re-set it at zero.
No question of concealed development would appear to arise in this case, as the LPA is clearly aware of the situation.
[Caveat:From the facts as stated, there does seem to be a possible doubt as to the actual residential occupation of the flat, which might defeat a claim that it has become lawful.]
Excellent blog, Martin. I have been reading your long and well-considered posts about "the need for continuity", yet I wonder if there has ever been a legal definition of "continuous use" or what length of gap 'resets the clock'? I have been living in a separate building on my property for over 4 years - and nowhere else. I am a journalist, travel writer and mountain guide, and therefore when I "go to work" it's not 9-5, but 2-3 months on expeditions. The LPA are claiming that these are not de minimis interruptions and are classed as a break in use. I disagree, as I cannot realistically turn down work, and it would be the same if I was, say, a merchant seaman or air hostess. I appreciate you cannot comment without being instructed on the merits of the case, but as I say, I can't find any legal definition or precedent as to what a definition of "continuous" is. Any thoughts?
ReplyDeleteI can’t comment on the facts recited by ArbyW on 20 June, but he has raised an interesting issue.
ReplyDeleteIn Swale BC v. FSS [2005] EWCA Civ 1568, Sedley LJ noted that the law has always recognised that an occupier does not have to be continuously or even regularly present in order to establish unbroken use of the premises as a dwelling-house – see the decision of the Court of Appeal in Brown v Brush [1948] 2 QB 247, and also, Megarry on the Rent Acts, 11th edition, Volume 1, pages 245 to 249. He nevertheless observed that a point may come where the evidential burden shifts to the occupier to displace the inference that residential occupation has ceased.
Counsel for the LPA in Swale had asserted that mere absence from the building, especially if it lasts for some months (for example on an extended holiday or working away from home), necessarily denotes a cessation of the residential use of the property. He submitted that the use must be “active”, and suggested that in such circumstances there is no activity and hence no use is continuing, so that the mere presence of personal effects and the connection of services such as water and electricity would not suffice to substantiate continuing residential use of the property. However, none of the judges in Swale pronounced any conclusion with regard to these propositions.
In light of Sedley LJ’s remark quoted above, these assertions on behalf of the LPA in Swale would not appear to be supported by judicial authority, and my own view (in line with Brown v. Brush) would be that simple absence of the occupier would not be sufficient to show any discontinuity in the use, provided that the property remained fully furnished, and that personal possessions and clothing, etc. were left in the property by the occupier(s) for their own use.
In such circumstances, it would be my view that the absence of the occupier (even for some months, if they were travelling or working away from home) would not in itself denote cessation or discontinuity in the occupier’s residential use of the property, especially where there is clear evidence that their absence is occasioned solely by a work commitment or an extended holiday, and where there was clearly an intention to return (and the occupier did return) as soon as the necessary absence was over.
However, I cannot predict with certainty that this view would necessarily be upheld by an inspector on appeal, and the point may sooner or later have to be litigated in order to resolve the issue.
Hi Martin,
ReplyDeleteThanks for such an excellent blog.
I am confused about whether the 4 or 10 year rule applies to commercial property (I notice that the term 'dwelling' is used.
I am hoping to buy a flat (leasehold) above a restaurant. The restaurant has two extractor systems at the back of the property and I am concerned that planning permission may not have been obtained for one of them.
One flue goes up the side of the building, the other is box like and sits on the roof of the restaurant about 1-1.5m away from the back window of the first floor flat. This unit impacts significantly on the view from the flat window. I don't know whether fumes from it are a problem since I have only viewed the flat during the daytime with the windows shut. In fact, I don't even know if it is used at all- the one running up the side of the building is newer and larger so this may be the one they use.
I have searched for historical planning permission applications. I could only find an application and approval for the installation of the flue running up the side of the building (and permission to change the use of the property from A3 to A5). In the drawings submitted in that application (in 2008) and also in a subsequent application in 2015 (relating to the wall flue), the drawings of the back of the property did not include the extractor unit in front of the window, they only included the one up the side of the wall. Would they have been required to include the unit in front of the window in the drawings?
My mortgage broker has advised that it might be tricky to get a mortgage on the property because of re-saleability concerns due to the extractor unit in front of the window. If it were possible to buy the flat and I found out that the unit had been installed without planning permission, would there be any grounds for trying to get it removed? I am pretty sure it has been there for at least 4 years although I cannot know this and don't know whether it has been there as long as 10 years. Could environmental health legislation apply?
If this extractor unit is old and redundant, if agreement could be established with the restaurant leaseholders to remove it (e.g. even at my expense) would this be OK to pursue?
Many thanks in advance.
Hi Martin
ReplyDeleteI am trying to find out of the 4 year rule applies to a Breach of Condition Notice, we had planning for a barn conversion about 15 years ago. we did the build and then had a BCN. we have complied with all conditions apart from one which is for a visibility splay, we can not comply with this as the splay is on next doors verge. The BCN was served about 12 years ago and we have not heard from rhe council since. If the 4 year rule applies would it override the BCN so we now have full planning?
Thanks
Hello, This is a really useful site for information, thank you. I have a question regarding change of use/4 year rule: We have a wooden barn 10m X 4m and stables 16m X 4m with electric and water connected and we wondered how complete a building has to be in order to be considered a dwelling (ie. tiled/flat roof, plasterboard, rooms, drainage etc) and are either of these buildings too small to pass as a dwelling?
ReplyDeleteThe answer to this question is going to depend on the detailed facts. The basic test that has to be passed is set down in Gravesham B.C. v SSE (1984) P. & C. R. 142. The building must, as a question of fact, be constructed or adapted for use as a dwellinghouse as normally understood, that is to say, as a building that provides for the main activities of, and ordinarily affords the facilities required for, day-to-day private domestic existence.
ReplyDeleteHowever, there’s rather more to it than that, and proper legal advice will be needed. There are plenty of elephant-traps for the unwary.
In answer to the anonymous query of 9 August (about the 4-year rule) -the service of a Breach of Condition Notice has stopped the clock (until or unless the notice is withdrawn), and so immunity in respect of the breach cannot now be claimed under the 10-year rule (it's not the 4-year rule in this case). (See section 191(3)(b) of the 1990 Act.)
ReplyDeleteIf in practice there is no control over the land required for the visibility splay, the best course might to be apply under section 73 to have the condition removed.
Going back to the anonymous query of 4 August, building operations (such as the installation of the extraction system, assumimng it did materially affect the external appearance of the building) become immune from enforcement 4 years after they are substantially completed. It makes no difference whether the building operations were carried out to commercial premises, a dwelling or any other type of building (or indeed on open land). It is always the 4-year rule that applies to building operations.
ReplyDeleteWe have a storage container which has been used for business/domestic storage for 9 years now. The Local Authority have advised us that the land on which the container sits is agricultural land and that the domestic/business use must cease and the container must be removed from the land.
ReplyDeleteWe accept that the change of use from agricultural to domestic/business falls under the 10 year rule so is enforceable.
Would the fact that the container has been in situ for more than 4 years remove the Local Authority's power to enforce it's removal. We intend to use it for agricultural storage if it remains on site.
At first sight, it might appear that the container itself (as opposed to its use) would be immune from enforcement under the 4-year rule. However, Murfitt -v- SSE [1980] JPL 598, Perkins -v- SSE [1981] JPL 755 and Bowring v SSCLG [2013] EWHC 1115 (Admin), and now also Kestrel Hydro v SSCLG [2016] EWCA Civ 784) have clearly established that where the operational development is integral to the change of use, it too is caught by the 10-year rule, and its removal can lawfully be required by the enforcement notice dealing with the change of use of the land.
ReplyDeleteHello Martin
ReplyDeleteGreat site you have here, extremely useful and informative. The answer to my simple question re the 4 year rule may be hidden in other comments and your responses, but here goes. In 2009 I acquired planning consent for an independent 2 bed detached annexe next to my home for my elderly father. He passed away a year later alas, since when I have let the unit out contiuously to different individuals in need. The annexe has a seperate address and the tennants pay council tax etc. Does the 4 year rule apply to this unit too bearing in mind the council approved it for what it is.
David.
The question raised by David Lowe would require more detailed information before one could answer it, and so it could only be dealt with on the basis of professional instructions.
ReplyDeleteOur local planning department are accusing us of running a business from home which we dispute.
ReplyDeleteMy partner does come home from work in a commercial vehicle which belongs to the company that he owns but that is as far as it goes. No deliveries are made to our home, no visitors come. Even the admin (payroll and accountancy) are done off-site.
My partner runs a business as a drive/patio layer.
We have a personally owned mini-digger in our garden which was bought to help us renovate our home and garden. This is not and never has been listed as a business asset in the accounts of the business.
As it stands the house renovation is now finished but the garden is still work in progress with quite a lot of work still needing to be completed.
We kept getting letters and visits from the planning team telling us to cease business use and to remove all business related plant and equipment from our garden. Despite being told many times that the mini-digger and other construction equipment, as well as materials, are present due the renovation they do not seem prepared to listen.
We have now received an enforcement notice which has been issued demanding business use on the land is ceased within 30 days.
We have contacted them to try and discuss but they have said they won't talk to us any more as we aren't assisting in getting the matter moved forward and that we are being obstructive.
Are our reasons for the presence of the 'non-residential' items an acceptable ground of appeal on this enforcement?
Thank you
We bought a property 4 years ago with a small equestrian arena in place that has always been used, we understood all permissions were in place. As we have lived next door for more than 30 years we know the arena has been there for at least 20 years and have aerial photographs. We have now been sent an enforcement order requesting retrospective planning or removal as no planning has ever been sought but does this arena come under the 4 year or 10 year rule?
ReplyDeleteIn answer to Sara’s enquiry (12 September), this use would appear to have become lawful under the 10-year rule some time ago, and it appears that you have the evidence to prove it. If Keystone Law’s legal assistance is required in dealing with the matter, please send me an email and I will find a member of our planning law team who could deal with it.
ReplyDeleteYou refer to an “enforcement order”. From the context, I assume that this may have been a Planning Contravention Notice. This requires a fairly swift response (for which legal assistance would be advisable). If on the other hand, a formal Enforcement Notice has been served under section 172 of the 1990 Act, then it is vital that an appeal be lodged with the Planning Inspectorate before the date when it is due to take effect. Legal advice on this is vital and urgent.
I regret to say that the anonymous comment of 7 September got dumped in the ‘Spam’ bin by the system, from which I have just rescued it.
ReplyDeleteI cannot comment on this matter in any detail (which would require formal professional instructions) but, in principle, working from home is capable of being a legitimate activity ancillary to the primary use of a house as a single private dwelling. This is, however, ‘a matter of fact and degree’ in every case, and will depend on the number of visitors, deliveries and collections, associated vehicular movements, and the number of commercial vehicles on site, or plant and machinery used for commercial purposes. There will only be a change of use (to a mixed use as a single private dwelling and as commercial premises) if these factors go beyond a certain threshold. However, what that threshold may be in any particular case is a matter of judgment, and will depend on the precise circumstances in any particular case.
If plant and machinery is genuinely being used to carry out work to the dwelling as such, however, this ought not to be factor in the situation (provided that the plant and machinery is removed from the site when the work is completed).
We are selling our house which had a single story extension built with planning permission in 1987.
ReplyDeleteI do not have the completion certificate but I do have the plans and approval.
My buyers solicitor is asking for the planning permission (and I assume the completion certificate)
I have given my solicitor the planning approval number.
Do I need anything else
Surely the 4 year rule is enough to validate the use of the extension?
How long should you keep these certificates?
Mick Lee
Hi. I live in an area where permitted development rights were removed. I erected a conservatory 7 years ago and think it's now immune under the 4 year rule. The house is 13 years old so not listed or in a conservation area. The local council are telling me the 4 year rule doesn't apply because of the removal of permitted rights. I think they are talking rubbish. Who's right here?
ReplyDeleteWe have an off-street parking space which has been used for at least 17 years. There is no dropped kerb access to the road. We have been served with a notice by the local council under s16 of the London Local Authorities and Transport for London Act 2003 telling us to cease vehicular access to our house. Does the four (or 10) year rule apply in this case?
ReplyDeleteHi, my neighbour built a granny annex and then applied for retrospective planning permission for a garage/storage barn. Planning permission was granted but the document issed by the local council contains a clause stating that it should not be used as a residential unit. It seems thus that his actions were fraudulent, ie, he only applied for the sort of permission he was likely to get. Does the 4 year rule apply to his case? If so we have one year left to make a complaint. What could happen if he gets reported? I and other neighbours are considering this option. many thanks.
ReplyDeleteIn answer to my anonymous correspondent of 19 September, if planning permission has been granted, and the development has been carried out in accordance with that permission, then there has been no breach of planning control, and so the 4-year rule is of no relevance. If it was alleged that the planning permission was unlawfully issued (whatever the reason), this should have been challenged at the time by an application to the High Court under CPR Part 54. It is far too late to do anything about it now.
ReplyDeleteHowever, if it is felt that a breach of planning control has occurred (e.g. an unauthorised change of use of the building, to which the 4-year rule may apply if this relates to its use as a dwelling when this was prohibited), a complaint should be addressed to the council’s planning enforcement officer. It is then up to the council how to deal with it, in light of their investigation. They will be concerned solely with the question as to whether there has been a breach of planning control and, if so, whether it is ‘expedient’ (the word used in section 172 of the 1990 Act) to take enforcement action.
The query raised by Mark (17 September) is not a planning issue. Section 16 of the Act to which Mark refers simply deals with crossovers over the footway. In Greater London, if the occupier of any premises adjoining or having access to a highway habitually takes a vehicle (other than an invalid carriage) across a kerbed footway or a verge in the highway to or from those premises, and the highway authority have not constructed a vehicle crossing for the premises, they may serve a notice requiring the occupier to cease taking vehicles across the footway or verge. Neither the 4-year or 10-year rule applies in this case.
ReplyDeleteIn answer to “Unknown” (15 September), where permitted development rights are removed (in this case by an Article 4 Direction), 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 if the unlawful development consists of building, engineering or other operations (subject to the usual proviso regarding ‘concealed’ development), so I agree with my correspondent that the council are talking rubbish. Subject to proving that the erection of the conservatory was substantially completed more than four years ago, it would appear (on the basis of the brief summary of the facts given) that it should now be immune from enforcement , and therefore lawful, under the 4-year rule.
ReplyDeleteIn answer to Mick Lee (15 September), ideally one should try to get hold of the planning permission. Most councils have records that go back far enough to enable you to find old planning permissions in their archives (often digitised), especially if you know the reference number, although the extent of such records varies from one authority to another. A “completion certificate” relates to building control, rather than planning. A completion certificate confirms that the building works in question complied with the Building Regulations.
ReplyDeleteEnforcement is not a problem in either case after a lapse of nearly 30 years, but some purchasers’ surveyors tend to make a fuss if they cannot see documentary evidence of compliance with the Building Regulations.
The reason for wanting to see the planning permission after this lapse in time would simply be in order to check any conditions that might still apply to the property.
I wouldn’t be too bothered about the completion certificate in respect of the original erection of the house after this lapse of time. It is usually only extensions, loft conversions, or other physical alterations to the property that may possibly be problematic.
Hi Martin,
ReplyDeleteI sent an email via your business site but didn't get a response how do we contact you to act for us?
regards
Martin Adams
I regret that I can find no trace of any email from Martin Adams. Nor can our IT team find any trace of a message being left via our firm’s website.
ReplyDeleteCould Martin Adams therefore please contact us again by emailing either :
london@keystonelaw.co.uk
or
martin.goodall@keystonelaw.co.uk
I find you blog very interesting and thank you. Could you help me with a query on the 4 year rule, when does the clock start ticking, is it when the coucil are aware of the change of use or the date of the application is submitted. Thank you.
ReplyDeleteI wonder whether this enquirer may be muddling two different points.
ReplyDeleteThe 4-year rule under discussion in this blog post related to the material change of use of a building to use as a single private dwelling. The 4-year period commences from the date on which the change of use took place (i.e. from the date when any conversion works were completed and either the building was occupied as a residence or, at the earliest, when it was ready for immediate occupation – see Impey and also Welwyn Hatfield. However, residential occupation must then be continuous throughout the 4-year period - see Thurrock and Swale.
The relevance of the date when the LPA becomes aware of this breach of planning control is that if they wish to apply to the magistrates’ court for a Planning Enforcement Order [PEO] to enable them to take enforcement action outside the 4-year period (on the grounds that the development was concealed to any extent), they must do so within six months of first having become aware of the breach. [However, enforcement action can be taken within the 4-year period without resort to a PEO, no matter how long the LPA has been aware of the breach.]
Deliberate deceit, deception or dishonest concealment might enable the LPA to take enforcement action outside the 4-year period without resort to a PEO, in reliance on the rule in Welwyn Hatfield (applying the Connor principle).
[Incidentally, the other 4-year rule relates to the execution of building, engineering or other operations. This 4-year period commences from the date on which the operational development was substantially completed. The House of Lords decision in Sage ruled on the definition of substantial completion. Again, enforcement action can be taken outside the 4-year period in the circumstances described above (concealment, deceit or deception, etc.)]
Is there a definitive definition of a "single dwelling", or "dwelling"?
ReplyDeleteMore precisely what are the facilities that require to be in place?
There is no ‘official’ definition of a dwelling (although there is a complex and detailed definition in the Use Classes Order of what constitutes a use within Use Class C3, which is not quite the same thing). The question of what facilities are required is therefore ‘a matter of fact and degree’ in each case, and the High Court judgment in Gravesham (discussed elsewhere in this blog) proposed a test which is widely applied in order to answer this question.
ReplyDeleteIf an agricultural building is demolished and replaced with another agricultural building on the same footprint without consulting the LPA, then equipped as part residential/part domestic storage 3 years later, is that use subject to the 4-year or 10-year rule?
ReplyDeleteThe lawful erection of a building becomes immune from enforcement four years after it was substantially completed (unless it was concealed or there was deliberate deceit on the part of the developer), but the use of that building from new is subject to the 10-year rule (even if used as a dwelling) – see the Supreme Court decision in Welwyn Hatfield.
ReplyDeleteA change of use of a building (as distinct from its use from new) to use as a private dwelling is subject to the 4-year rule, subject to unbroken continuity of that use, and again subject to no concealment or deliberate deceit on the part of the developer.
The combination of facts in the case posed by my anonymous correspondent of 10 February, however, leaves me uncertain as to the position in this case. It does not fit neatly into either of the rules I have mentioned. Caution would lead me to say that perhaps the 10-year rule might apply in these circumstances, but we would need proper instructions to enable us to go into the matter thoroughly.
At the beginning of my comment above "lawful" should of course read as "UNlawful"!
ReplyDeleteProbably showing my ignorance here about planning law but if a large storage shed made out of timber and with a tiled roof is built in a conservation area without planning permission is it the four or ten year rule that comes into effect?
ReplyDeleteIn answer to David Tetlow (20 February), the erection of a building or structure without planning permission is subject to the 4-year rule, irrespective of where it is. Note, however, that the building might possibly have been erected as permitted development (for which planning permission is granted by Article 3(1) of the GPDO). Without knowing the full facts, I could not say whether this building is or is not PD.
ReplyDeleteHi Martin
ReplyDeleteI find this 4 year rule quite difficult to believe. Does it apply to National Parks also? When 4 years have passed, and a sale of the building ( with a conservatory without planning permission) is planned, would one need to apply for anything, or is the fact that it was built more than 4 years ago sufficient for the Purchasers solicitor? Many thanks for providing such a fantastic blog with excellent advice.
In answer to John (3 April 2017), the 4-year rule is not dependent on the location of the site, and is not excluded by any planning designation applying to the site **. It applies to any operational development - which becomes immune from enforcement, and therefore lawful, at the end of four years from the date on which that development was substantially completed. The only exception that might arise is where the development was to any extent concealed, or if deliberate deceit was used to prevent the LPA from discovering the development.
ReplyDelete** The 4-year rule applies only in respect of development carried out without planning permission. It does not apply to works to a listed building carried out without Listed Building Consent. Any works to a listed building that affect its character as a listed building, and did not have LBC, and which were carried out at any time since 1 January 1969 are liable to enforcement action without any limit as to time.
What a brilliant forum - I wish Id found it a few weeks ago.
ReplyDeleteMy council has issued enforcement notices on 36 properties locally. These properties were originally built as holiday homes with an occupancy condition preventing occupancy in the winter months. The planning permission was given for them in 1958/9 there were a series of appeals in 1990 in which it is clear that the inspector regarded 4 years as the time limit for action. The enforcement notices now (in 2017) quite clearly say 10 years "The council believes that the breach of this condition of planning permission dated 5th November 1959 took place less than ten (10) years ago"
My question is are they right and if they are wrong does that invalidate the notice?
Is it true that any breach (i.e. going back to 1959 would suffice to get it thrown out on ground d?
Any help would be appreciated.
My instant reaction to Richard Everett’s comment is that the people who have received enforcement notices should immediately appeal against them under section 174 of the 1990 Act. This is essential, because the enforcement notices will take effect if an appeal is not made against the enforcement notice before the date on which it is due to take effect.
ReplyDeleteAs regards the appropriate time limit for enforcement (4 years or 10 years), this entirely depends on the precise facts in each case. A property built as a holiday home is already a dwellinghouse within Use Class C3, so a breach of a condition as to the period each year during which it can be occupied is subject to the 10-year rule. The 4-year rule only applies where planning permission was given for (as an example) an extension to a dwelling, with a condition attached which required that the extension, such as a ‘granny annexe’, should not be used as a separate dwelling. A breach of that condition would be subject to the 4-year rule, as explained by the Court of Appeal in the Arun case.
In the cases in question here, they may or may not be immune from enforcement under the 10-year rule, depending on the facts of each case.
As in all cases where immunity is claimed following a change of use or breach of a use condition, it is essential to show continuity of that use (throughout the relevant period in the case of a change of use, and also up to the present time in the case of a breach of condition).
Hi, great blog - really useful.
ReplyDeleteI had a conservatory built assuming permitted development rights. I have since found out my property is subject to Article 4 restrictions. Does the 4-year rule still apply under such circumstances? The conservatory was built 2 years ago.
Many thanks
Great blog - really useful.
ReplyDeleteMy question concerns a conservatory I had built 2 years ago. I had assumed permitted development rights but have since found out my property is subject to Article 4 restrictions. Does the 4 year rule still apply in such circumstances?
Many thanks
I have moorings on a river which have been in existence for over 6 years and therefore come under the 4 year rule. The use of the moorings for residential purposes I am informed would come under the 10 year rule. We have lived on our boat for 6 years and the council is suggesting that we would need to apply for planning permission to remain. They have also stated that they would be unlikely to grant permission. Is it right that the 10 year rule applies?
ReplyDeleteIn answer to the anonymous query of 17 November, I can’t give free legal advice on this issue, and so the usual disclaimer applies to my remarks but, on the analogy of cases involving the stationing of a caravan on land for residential purposes, this would probably be seen as a change of use of the land (bearing in mind that ‘land’ includes land covered by water), and so would be subject to the 10-year rule.
ReplyDeleteA boat would probably not be regarded as a building or structure, although it might be argued that the permanent mooring of a boat in one location might make it a building or structure, in light of Skerritts of Nottingham and the'Woolley Chickens' case. However, this would still not be a change of use of an existing building, and so on the basis of Welwyn Hatfield it would seem that the 10-year rule would still apply. I would emphasise, though, that a proper answer to this question could only be given after careful consideration of the full facts, and on the basis of formal professional instructions.
In answer (rather belatedly) to "Bad Cricketer (3 September), an Article 4 Direction simply removes PD rights. If a building is erected without planning permission (for example if it would have been PD, but is covered by an Article 4 Direction) then its erection is unlawful, but this breach of planning control will be subject to the 4-year rule under section 171B(1) of the 1990 Act. The Article 4 Direction cannot prevent the operation of the 4-year rule. [On the other hand, beware the provisions as to concealed development. If the LPA becomes aware of the conservatory at any time after then end of the 4-year period, and can reasonably claim that its existence was concealed “to any extent”, they may seek to invoke the terms of sections 171BA to 171BC to take enforcement action outside that period.]
ReplyDeleteI bought a residential building which was converted into 5 bedsits used as a hostel, from the local authority 5 years ago. I converted the building into 7 self contained studios. The same local authority sent me a PCN a year ago asking for info and saying the building should be a single dwelling! I complied with the notice but have had heard nothing since. However I was advised by my letting agency that I couldn’t relet the studios if they became empty as it was illegal so I’ve had most empty now for nearly a year (as people have left). It’s coming up to 4 years since the 7 studios were first let. Can I apply for the Certificate of lawfulness under the 4 year rule?
ReplyDeleteThe answer to Anon’s query depends on what is meant by ‘studios’, and whether they are genuinely self-contained, or whether they rely on shared facilities (which would make these units part of a HiMO within Class C4).
ReplyDeleteExpert advice would be required in order to answer this question, as it will depend on a careful consideration of the all the relevant facts and surrounding circumstances. Until this exercise is completed, it will be impossible to say whether the 4-year rule would apply (on the basis that each of the units is a separate private dwelling within Use Class C3), or whether the development would be subject to the 10-year rule (if the building turned out to be either a hostel – a sui generis use – or a HiMO within Use Class C4).
Some national park authorities appear to have policies against the possibility of former business properties falling into full time residential use (although they will sometimes allow conversion to holiday home or mixed home/business use). I imagine their thinking is to retain employment possibilities.
ReplyDeleteIn some cases, these properties were originally built as dwelling houses, but were subsequently converted to C1 and C2 use. Those properties continue to contain the essential facilities required for day-to-day domestic existence.
Upon that basis, if such a property became continuously used as a dwelling house for at least four years without being challenged, could it be claimed that it had reverted to to C3 usage?
In answer to today’s anonymous query, a use cannot revert to a previous use without planning permission (except in certain limited circumstances set out in section 57 of the 1990 Act).
ReplyDeleteIt will therefore simply be a matter of fact and degree as to whether a straightforward change of use to use as a single dwelling within Use Class C3 has occurred. Irrespective of the earlier history of the property, the rule in Gravesham will apply - requiring that before it qualifies as a dwellinghouse the building must have the basic facilities needed for day-to-day domestic existence. Subject to this, it must also have been used continuously as a dwelling throughout a period of four years.
However, if the owner or occupier has deliberately misled the local planning authority as to the true position, the 4-year rule may not apply (see the Supreme Court decision in Welwyn Hatfield), and the authority may also be able to defeat the 4-year rule if the change of use has been concealed “to any extent” (by invoking the procedure under sections 171BA to 171BC of the 190 Act).
My partner had some decking built in her back garden over 5 years ago ... this is slightly higher than the 30cm rule allowed ( she did not realise that she needed planning permission) ... her neighbor is now threatening to report her to the planning authorities regarding this.
ReplyDeleteDoes anyone know if this would be within the 4 year rule ( there have been no complaints about it until now ) Thank you
Martin - In relation to your answer above which was: 'In answer to ‘futureweb’ (4 May), it is essential that an appeal against the enforcement notice should reach the Planning Inspectorate before the date on which the notice takes effect, failing which this notice must be complied with, irrespective of what arguments there could have been or might have been as to the lawfulness of the use. A timely appeal under section 174 of the 1990 Act is the only way that the matter can be resolved, once an enforcement notice has been issued and served.
ReplyDeleteIf the enforcement notice has already taken effect (i.e. if no appeal was made before it became effective), then an LDC application is bound to fail, because section 191(2)(b) makes it an essential pre-condition that the uses or operations in respect of which the LDC is sought do not constitute a contravention of the requirements of any enforcement notice then in force.'
We have a situation where an application for a CLEUD was refused (in 2015), an EN was later served and the time for appealing against it expired. However, PINS have just accepted the appeal against the refusal to grant the CLEUD (presumably on the basis that at the time of the application there was no EN in force). I'd be very grateful for your comments.
Section 191(2) provides that an existing use or development is lawful if no enforcement action may then be taken in respect of it (either because it did not involve development or require planning permission, or because the time within which enforcement action could be taken has expired, or for any other reason) and it does not constitute a contravention of any of the requirements of any enforcement notice then in force (section 191(2)). So far as concerns an enforcement notice being “then in force”, it seems to me that this must refer to the date of the LDC application (although I cannot recall offhand any relevant judicial authority on this point. I would be grateful to be reminded of any such authority if any exists.
ReplyDeleteThere does seem to me, however, to be another difficulty in this case. The preclusive provisions of section 285 would seem to prevent any reliance now being claimed in respect of the alleged lawfulness of the previous use or development, following the coming into effect of the enforcement notice [although this assumes that the EN relates to the same development or use]. As I pointed out in paragraph 19.8.2 of my recent book, The Essential Guide to the Use of Land and Buildings under the Planning Acts, it has long been established that lawful use rights will be lost if an enforce¬ment notice is served and the existing use rights are not then raised as a ground of appeal. This is the result of section 285(1) and was recognised in cases such as R v Smith [1985] J.P.L. 182 and Vale of the White Horse DC v Parker [1997] J.P.L. 660. In the latter case, the Divisional Court found that the magistrates had been wrong in law in permitting a defendant to a prosecu¬tion to lead evidence to show that the land had been used for the purpose enforced against for a period in excess of 10 years prior to the issue of the enforcement notice. Section 285(1) prohibits any such course being adopted.
I do not therefore see what useful purpose would be served by the current LDC appeal. Where an enforcement notice is served, any existing use rights must be asserted in an appeal against the enforcement notice under section 174 (even if they have been certified in an LDC). In the absence of an appeal against the EN, it seems to me to be beyond dispute that any such rights have now been lost, and the EN will remain in full force and effect. There is no procedure available for ‘going behind’ an EN once it has taken effect, other than by obtaining retrospective planning permission for the development to which the EN relates (in which case section 180 would apply). However, there is no way by which the LPA can be forced to grant planning permission, and the LPA may decline even to entertain such a retrospective application, under section 70C(1).
We have a barn for which we obtained planning permission (on Appeal) in 2010 for ancillary living accommodation. We converted the building over the next 3 years, turning it into a self contained dwelling with separate kitchen & bathroom, and single bedroom, and separate parking area. We have been renting it out continuously for 5 years as a holiday let. There were no conditions or constraints in the planning decision that related to use, but in paragraph 11 the planning officer states:
ReplyDelete" There is no need to restrict the use of the building by conditions to ancillary residential accommodation as to use it independently of the main dwelling would require planning permission."
Would the 4 year rule apply in our case?
In answer to Helen Green, “It depends.” One could really only advise properly on this question in response to full professional instructions, because the detailed facts and circumstances will need to be carefully considered in order to reach a definitive answer.
ReplyDeleteHi Martin,
ReplyDeleteThank you for your continued contribution of information to your blog.
We have a garage that has been converted to an annex. It was converted 12/13 years ago.
It is separate to the house, the garage door has been retained and provides access to a small storage area. The rear of the building has been converted to a kitchen/living area with a separate bedroom and bathroom.
We have no evidence of when it was converted other than statements from our neighbours, the builder and various friends and family who have stayed in the annex.
Ariel photography proves the structure dating back to 2005 and google street maps dated 2009 shows the windows and doors to the annex.
My question is does the 4 yr or 10 yr rule apply to the conversion of garage to an annex and would written statements and affidavits be ample proof of the use?
In answer to the anonymous query of 4 May, if there has been a conversion of part of a property to form a separate dwelling, it is the 4-year rule that applies. However, this depends on at least 4 years’ continuous and genuinely separate use, and to this change of use not having been deliberately concealed to any extent.
ReplyDeleteHowever, if the accommodation has been used purely as an annexe to the main house (e.g. by friends and family when staying at the property), and not as an entirely independent dwelling, then no change of use would appear to have taken place, and the annexe remains part of the use of the property as a whole as a single private dwelling.
If a planning condition precluded use of the garage to provide additional living accommodation, then its use an an annexe would be subject to the 10-year rule (breach of condition). The judgment in Arun only applies where the breach of condition results in the creation of a separate dwelling.
With sincere apologies to Neal Parry for the delay in publishing his query of 11 February, the 4-year rule applies if 4 years have passed since operational development (in this case the erection of the raised decking) has been substantially completed.
ReplyDelete
ReplyDeleteBad Cricketer’s query of 3 September 2017 is another of those that got ‘stuck’ in the system.
An Article 4 Direction simply removes specified PD rights, so that planning permission is then required for such developments. If any operational development is carried out without planning permission when it needed it, the 4-year rule applies. This means it becomes lawful 4 years after it is substantially completed. The Article 4 Direction does not prevent this.
Hi Martin, Looking to build a wooden cabin for my son on some land that we have purchased behind our house next to a river. I have tried for planning, but the council say as it is in a flood plain then it will never be granted, despite the fact that it is 4m above the river and never been flooded in living memory. We have numerous octogenarians in our village with very good memories and not one of them remember the river getting anywhere close to our garden! I am planning on building a cabin for my son which will not breach any rules of planning for a garden structure etc, and will ensure that it fulfils building regs etc and hope that no one will complain in 4 years! Will I be allowed to gain planning permission in 4 years in your opininon?
ReplyDeleteMany thanks - Diolch
Cochyn
Martin
ReplyDeleteHas there been any further development regarding the advice you gave on 13 September 2012 regarding live/work units? You commented that the unit becoming a single private dwelling ought "in principle" to be covered by the 4-year rule.
I have dealt with this topic in slightly more detail in my book The Essential Guide to the Use of Land and Buildings under the Planning Acts (in paragraph 13.15.2 of Chapter 13 on pages 168 – 169).
ReplyDeleteHi Martin,
ReplyDeleteThanks for your advice.
Are more than one dwelling on a single plot eligible under the 4 year rule? Specifically, would two homes for two families who bought and shared a large plot become lawful after 4 years?
Thanks
The creation of each separate dwelling must be dealt with on its own facts. If what may originally have been a single plot became two separate units of occupation, then each is a separate planning unit, and its planning status must therefore be considered by itself, by reference to the facts that relate to that particular unit (including continuity of occupation, etc.).
DeleteI have pointed out previously that if a building is newly erected for use as a separate dwelling, there is some doubt as to whether the residential use itself will be covered by the 4-year rule. It has been suggested that this would not come within either section 171B (1) or (2), but would amount to “any other breach of planning control”, which would therefore be subject to the 10-year rule under section 171B(3). [See the Supreme Court judgment in Welwyn Hatfield v SSCLG and the earlier observations of Sullivan J (as he then was) in R (Mid Suffolk DC) v FSS]
Hi, I want to replace the windows on the rear elevation of my house, which is in a conservation area (article 4(1) direction). The windows are timber but are disintegrating after years of not being maintained (we moved in in February). I want to replace them with uPVC grain effect windows and there is also a bit of structural work to take out some brickwork. Furthermore there is a change in the subdivisions of the windows.
ReplyDeleteI realise that I should apply for planning permission. However, my neighbours have all had their rear elevation windows replaced with uPVC (our immediate neighbours had them done at the end of this summer just gone for instance). They have told us that there is no need to apply for planning as the windows are on the rear elevation. Whilst I know that this is wrong, I've also been told about the 4-year rule. As I am confident that the council won't see our rear elevation windows (as too are my neighbours), and that I think the council will just reject my application, I want to ask if the 4-year rule does apply in conservation areas?
There are two issues to be considered here: first, the need for Planning Permission and, second, the need for Listed Building Consent. Planning Permission is not in fact required for the replacement or alteration of windows, as these are Permitted Development under Class A in Part 1 of the Second Schedule to the General Permitted Development Order. However, this really doesn’t help you if the building is a Listed Building, because (although the Permitted Development under Part 1, Class A does apply to Listed Buildings and to other buildings in a Conservation Area) many types of work, both external and internal, to a Listed Building will also need Listed Building Consent, irrespective of the Grade of the listing.
DeleteBy section 7 of the Listed Buildings Act, it is an offence to execute (or cause to be executed) any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest, unless the works are authorised by a Listed Building Consent. The Local Planning Authority [‘LPA’] has power to issue a Listed Building Enforcement Notice [‘LBEN’] to require the removal of such alterations. This power is not subject to ANY time limit. The 4-year rule that applies to planning enforcement does NOT apply to listed building enforcement. So Naylortron’s neighbours may be congratulating themselves that they’ve ‘got away with it’; but they haven’t! The LPA could serve an LBEN at any time in respect of any unauthorised works to a Listed Building carried out since 1 January 1969.
The one possible saving is that the need for Listed Building Consent applies only where the alteration or extension “ would affect its character as a building of special architectural or historic interest”. This has been, and continues to be, the subject of fierce dispute in some cases. However, most conservation officers take the view that the installation of double glazing would affect the character of the Listed Building, and so requires Listed Building Consent.