The site and background
This case concerned a property at Poulton Road in Southport, where a substantial outbuilding to the rear of the main house had been converted into residential accommodation.
Planning permission was granted in 2003 for the conversion of the outbuilding into living accommodation for members of the household. That permission was subject to a condition preventing the building from being used as a separate, self-contained dwelling.
Over time, the owner’s circumstances changed. For a period, he occupied the outbuilding himself and rented out the main house. At other times, the outbuilding was rented out independently. As a result, the outbuilding came to be used as a dwelling separate from the main house.
The enforcement issue
Situations of this kind commonly come to light through planning enforcement investigations, particularly where an outbuilding or annexe has been used independently and rented out for a number of years.
In this case, the council’s planning enforcement team raised concerns that the use of the outbuilding as a separate dwelling breached the condition attached to the original permission and therefore required planning permission.
The key issue, however, was not the planning merits of creating a new dwelling, but whether the use had become lawful through the passage of time and could therefore be confirmed by a Certificate of Lawfulness.
The certificate of lawfulness application
We prepared and submitted an application for a certificate of lawfulness, supported by detailed evidence demonstrating that the outbuilding had been in continuous use as a separate, self-contained dwelling for a period in excess of four years.
The evidence included statutory declarations, tenancy information, financial records, insurance documents, correspondence and historic imagery, all of which pointed consistently to the independent residential use of the outbuilding over the relevant period.
The application was initially refused by the council on the basis that the breach fell under the ten-year rule, on the footing that it amounted to a breach of condition rather than the creation of a new dwelling.
The legal position and reconsideration
We advised that this interpretation was flawed and prepared an addendum to the supporting statement addressing the relevant legal tests and recent appeal decisions. In particular, it was explained that where a building is used as a separate dwelling in breach of a condition which seeks to prevent that use, the four-year rule applies to the creation of a new planning unit, rather than the ten-year rule for other breaches of condition.
Following resubmission of the application with the additional legal analysis and case law, the council reassessed the evidence and the correct application of the enforcement time limits.
The outcome
The council accepted that the outbuilding had been in use as a separate dwelling for a continuous period exceeding four years and that the use was therefore immune from enforcement action. A Certificate of Lawfulness was issued confirming the lawful use of the outbuilding as a self-contained dwelling.
This brought the enforcement investigation to an end and secured a lawful planning status for the property.
Why this case is relevant
Cases involving annexes or outbuildings used as separate dwellings frequently arise following enforcement investigations, often many years after the use first began. Where an outbuilding has been occupied independently and, in particular, rented out, the consequences of getting the legal position wrong can be serious.
This case demonstrates the importance of applying the correct enforcement time limits and of assembling clear, consistent evidence of use. It also shows that, in the right circumstances, a Certificate of Lawfulness can provide a definitive and lawful resolution to what would otherwise be an ongoing enforcement risk.
More information on how planning enforcement works, and the options available, can be found on our planning enforcement advice page.
Update: it should be noted that the four-year rule for unauthorised development has since been amended by changes to planning legislation. The correct enforcement time limit now depends on the nature of the breach and the date on which the use began. However, this case was assessed under the law as it applied at the relevant time, and illustrates the importance of applying the correct legal test to the facts of each individual case.
