30th March 2020

Certificates of existing use - easy right? Wrong

If you want to be certain that, in planning terms, an existing or proposed use, or development, is lawful, you can apply to your local planning authority (LPA) for a legally binding decision.

If you want to be certain that, in planning terms, an existing or proposed use, or development, is lawful, you can apply to your local planning authority (LPA) for a legally binding decision.

Where the legal tests have been met, the LPA will grant what is commonly known as a lawful development certificate. A document stating what is lawful at the date of the certificate’s application comes under section 191 of the Town and Country Planning Act 1990 (the Act). Section 192 certificates cover any proposed use or development.

While it might seem unquestionable to you that your certificate will be granted, this is not always the case. Below is a snapshot of three decisions on appeals to refusals under section 191.

Know what you are applying for and what evidence is needed

In an appeal challenging the decision not to grant a certificate for the use of a former farmhouse annexe as a residential dwelling, the description of the use had changed three times between the time of the application, the council’s refusal notice and the notice of appeal[1].

The appellant couldn’t demonstrate four years continuous occupation of the building on the balance of probabilities, not least because there was an unjustified two month gap in occupation (and an absence of utility bills). To make things tougher, evidence they supplied contradicted their own case according to the planning inspector.

Agricultural occupancy conditions: who are your dependants?

The appellant sought a certificate for residential occupation of a farmhouse without compliance with an agricultural occupancy condition[2]. The appellant had to demonstrate a ten-year breach of the condition which required occupation to be limited to a person, solely or mainly, employed or last employed in agriculture…’.

The farmhouse was occupied by the farmer’s widow. Her eldest daughter had returned to live in the home in 2005 and was no longer dependent on her mother for support.

The inspector found that compliance with the condition ought to be judged taking account of the family unit. Adopting the reasoning in the Court of Appeal case of Shortt & Shortt v Secretary of State[3], he determined that the condition would be satisfied as the mother and daughter relationship was one of interdependent emotional support and care. There was no requirement in the planning condition to demonstrate financial dependence.

Is it a mobile home or a building?

In this case, the appellant sought to argue that adaptations made to a mobile home in the New Forest over the four years before the date of the application resulted in a building being authorised as a dwelling.[4] The inspector considered the matters relevant to the definition of a building under the Act to be: the size of the structure to be constructed on site; the degree of permanence; and physical attachment to the ground.

The fusing together of the two mobile homes, the attachment of porches and installation of central heating were not enough to persuade the inspector to grant the certificate.

Lesson

Taking legal advice would have saved these individuals time and money, and increased their prospects of success when applying for a lawful development certificate.

Implications of coronavirus for certification

Right now, our team is fielding questions about how certificates can prove implementation of developments disrupted by the COVID-19 pandemic.

If you have a question about a certificate, or any issues arising from the changes to planning, permitted development rights, decision making or extending periods for compliance arising from the impact of the coronavirus pandemic (more here), then please get in touch with the Planning team at Thrings.

[1] Appeal Ref: APP/B6855/X/19/3234879 Inspector: Mr Richard E. Jenkins BA (Hons) MSc MRTPI

[2] Appeal Ref: APP/G2713/X/18/3210262 Inspector: Mr Roy Merrett BSc(Hons) DipTP MRTPI

[3] Shortt & Shortt v SSCLG & Tewkesbury BC [2015] Civ EWCA 1192

[4] Appeal Ref: APP/B9506/X/19/3221099 Inspector: Mr Stephen Hawkins MA MRTPI


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