London Borough of Barking and Dagenham served an enforcement notice against our client in relation to the upper floors above a shop at 683A Green Lane, Dagenham.
The council alleged that the flat above the shop had been subdivided without planning permission into multiple self-contained units of accommodation. The notice required our client to stop using the property as multiple flats, remove the alterations and fixtures that enabled the creation of the flats, and remove the resulting waste materials. The compliance period was six months.
We appealed against the enforcement notice on ground (d). This is the ground of appeal which argues that, by the time the notice was issued, it was already too late for the council to take enforcement action.
The appeal property was a three-storey mid-terrace building with a shop at ground floor level. The inspector recorded that, at the time of his site visit, there were three individual flats above the shop: Flat A at first floor level, Flat B at second floor level and Flat C in the extended roof space. The inspector corrected the allegation in the notice so that it referred to “the material change of use of the flat above the shop to three flats”.
At the time the enforcement notice was issued, the relevant immunity period for the use of a building as a self-contained dwellinghouse was four years.
This kind of appeal depends on evidence. It is not enough for an appellant simply to say that a use has existed for long enough. The evidence has to show, on the balance of probabilities, what happened and when.
We submitted a detailed evidence pack. This included statutory declarations, tenancy agreements, rent records, bank statements, invoices for the conversion works, electrical installation certificates and gas safety certificates.
The inspector accepted that the property had already been divided into two flats when our client bought it in 2013. He also accepted that a rear dormer was built in 2017 and that a third flat was created in the extended roof space. This was supported by a statutory declaration from the builder, invoices for works carried out between January and July 2017, and electrical installation certificates for all three flats dated August 2017.
The inspector found that this evidence was sufficiently precise and unambiguous to demonstrate that the original flat had been physically subdivided into three separate flats more than four years before the enforcement notice was issued.
We also provided evidence that all three flats had been let and occupied. The inspector referred to the appellant’s statutory declaration, the accountant’s statutory declaration, a rent spreadsheet and bank statements showing rent payments for all three flats between 2017 and 2022.
The tenancy evidence was important. For Flat A, there were signed tenancy agreements and corresponding rent payments. For Flat B, the inspector noted tenancy agreements from September 2017 and March 2021, supported by bank statement entries. For Flat C, there was a tenancy agreement from February 2018, a statutory declaration from the tenant and later tenancy evidence supported by bank payments. The inspector also noted individual gas safety certificates for the three flats from 2018, 2019, 2020 and 2021.
The council did not provide evidence of its own to contradict our client’s account. The inspector concluded that the weight of evidence “clearly and unambiguously” demonstrated that the material change of use to three flats had occurred more than four years before the enforcement notice was issued and had continued without material interruption. He found that it was “manifestly shown” that it was too late for the council to take enforcement action.
The appeal was allowed and the enforcement notice was quashed.
This was an excellent result for our client. It meant that the flats could continue to be used and the council could not require the tenants to be evicted or the property to be returned to a single flat.
The case is also a good example of how important evidence is in enforcement appeals. Where the issue is immunity from enforcement action, the inspector is not deciding whether the development is good or bad planning. The question is whether the evidence proves that the use has existed for long enough.
If you have received an enforcement notice, you should not ignore it. Enforcement notices have strict deadlines and can have serious consequences if they are not appealed in time.
You can read more about our enforcement notice work on our planning enforcement notices page. You may also find our article on the importance of appealing an enforcement notice useful.
