This case concerned a successful application for a Certificate of Lawfulness (or Lawful Development Certificate) for an existing residential use above a workshop premises in Leyton, east London.
Our client had purchased a workshop unit located beneath railway arches. The upper floor of the building had been occupied as a self-contained flat by the previous owners for many years, but the lawful planning status of that residential use had never been formally established.
The council’s policy position
Waltham Forest Council’s Local Plan includes policies aimed at protecting small-scale employment and workshop uses from loss through change of use to residential accommodation. As a result, proposals to introduce new residential units above or within commercial premises are often resisted at application stage.
However, in this case the issue was not whether a change of use should now be permitted, but whether the existing residential use was already lawful by virtue of the passage of time.
The four year rule
The flat above the workshop had been in continuous residential use for more than four years prior to the application. As a result, the use was immune from enforcement action under the four year rule, provided that sufficient evidence could be produced to demonstrate that the use had been continuous and uninterrupted.
The key issue was therefore evidential, rather than policy-based.
The application and supporting evidence
We assisted our client in preparing an application for a Certificate of Lawfulness, supported by a detailed evidence pack. This included sworn statutory declarations from neighbouring occupiers who were familiar with the previous owners and could confirm that the upper floor had been used as a flat for many years.
The evidence was compiled carefully to address the council’s likely concerns and to demonstrate, on the balance of probability, that the residential use had been established for the requisite period.
The decision
The council accepted the evidence submitted and granted the Certificate of Lawfulness, confirming that the residential use of the upper floor was lawful and immune from enforcement action.
The decision provided our client with certainty as to the planning status of the property and removed the risk of future enforcement in relation to the existing use.
Key points from the case
This case illustrates the importance of distinguishing between policy objections to new development and the separate question of whether an existing use has become lawful over time. Even where councils have strong policies protecting commercial floorspace, those policies cannot be used to take enforcement action against uses that are already lawful.
It also demonstrates the importance of presenting clear, credible evidence when relying on the four year rule. Well-prepared statutory declarations and supporting material are often decisive in these cases.
We have extensive experience with applications relying on both the four year and ten year rules (see here and here, for example), and have secured Certificates of Lawfulness in a wide range of circumstances where long-established uses needed to be formally confirmed.
