In section 171 B(1.2) of the Town and Country Planning Act 1990, the dividing of a single dwellinghouse into two or more separate dwellinghouses is deemed by section 55(3)(a) to constitute a material change in the use of the building and of each part of it which is so used. So it is a material change in each part that is now a separate dwellinghouse, and that change is protected by the four year rule.
For the purposes of the Town and Country Planning Act 1990, where a single, self-contained set of premises comprises a unit of occupation, which can be regarded as a separate 'planning unit' from any other part of a building; are designed or adapted for residential purposes, containing the normal facilities for cooking, eating and sleeping associated with use as a dwellinghouse; and are used as a dwelling, whether permanently or temporarily, by a single person or more than one person living together as, or like, a single family, those premises can properly be regarded as being in use as a single dwellinghouse. Therefore, the established use would be 4 years.
'Where the burden of proof is on the appellant, the relevant test of the evidence on such matters is 'the balance of probability.' A Local Planning Authority (LPA) should not refuse a certificate because the applicant has failed to discharge the stricter, criminal burden of proof, namely 'beyond reasonable doubt. Moreover, the applicant's own evidence does not need to be corroborated by 'independent' evidence in order to be accepted.
If the LPA have no evidence of their own, or from others, to contradict or otherwise make the applicant's version of events less than probable, there is no good reason to refuse the application, provided the applicant's evidence alone is sufficiently precise and unambiguous to justify the grant of a certificate 'on the balance of probability.' The LPA should proceed on the basis that neither the identity of the applicant (except to the extent that he or she may or may not be able personally to confirm the accuracy of any claim being made about the history of a parcel of land), nor the planning merits of the operation, use or activity, are relevant to the consideration of the purely legal issues which are involved in determining an application'.
There is conflicting case law on the above and some decisions which were made by Inspectors suggesting that 10 years is required for flats, since flats are not dwellings. In any specific case, please contact 4D Planning to discuss the details and to establish the best way forward to achieve the lawful development certificate for established use.
For an example of a conversion of a house into residential units see here.
4D Planning have many more case studies to show including houses to flats, shops to flats, commercial/ industrial units to flats and offices to flats under Prior Approval. Please see our Case Studies page for more information.
What information do I need to provide the council for established use?
For flats that have been in use for over 4 years:
- Tenancy agreements (for a period of no less than 4 years)
- Council tax bills for each flat
- Utility bills addressed to each flat
- Affidavit*
- Statutory declaration*
- Receipt/Invoice from builders
- Photographs with dates
- Certificate of completion of works from Building Control
- Electoral roll for each flat
- Vehicle registration
- Maintenance bills
* Please note - a statutory declaration is not usually sufficient on its own and the Council are likely to expect other evidence as well, so that the balance of probability is in favour of the established use.
For commercial properties that have been in use over 10 years:
- Tenancy agreement (for a period of no less than 10 years)
- Photographs with dates
- Receipt/Invoice from builders
- Affidavit
- Statutory declaration
- Business Rates (for a period of 10 years)
- Certificate of completion of works from Building Control
- Records from Companies House
- Tax Returns with address of the business
- Utility Bills
The above list is only a summary of the most common evidence materials that may be accepted by the council, and is not exhaustive. For specific advice regarding your established use application, please contact a planning consultants at 4D Planning.
What the applicant needs to prove:
It is up to the person applying for a Lawful Development Certificate for an existing use to show the proper evidence. This could include:
proof that any building was 'substantially complete' more than four years before the date of the application
proof that any use (or breach of condition) has been carried on continuously for a period of 10 years (four years in the case of a dwelling)
If the LPA has evidence, or reasonable grounds to believe, that the applicant’s claim is not correct, it may refuse a certificate.
Lawful development certificates are not relevant to situations where breaches of listed building or conservation area controls may be alleged.
The Levelling-up and Regeneration Act 2023 (LURA) received Royal Assent on 26 October, 2023, with secondary legislation finalised on 2 April 2024, bringing enforcement provisions into force. See Planning Act 2008 (Commencement No. 8) and Levelling-up and Regeneration Act 2023 (Commencement No. 4 and Transitional Provisions) Regulations 2024.
Section 115 revoking the four-year time limit for enforcement actions, extending it to 10 years for all breaches of planning control. This applies to operational development and change of use of any building to use as a single dwellinghouse.
The new provisions have come into force on 25th April 2024. The transitional provisions mean that this change will not apply in the following circumstances:
- Where the operational development was substantially completed before 25th April 2024.
- Where the change of use to a dwelling occurred before 25th April 2024.
Provided that the above criteria can be met, then the four-year rule would remain.
Therefore if you have 4 years of evidence and you would like to apply for a lawful development certificate for your extension or conversion, now is the best time to apply. 4D Planning can assist with the application and all the relevant drawings, maps and paperwork.
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