If new flats or houses are created without planning permission, they can become lawful after a period of time has passed. This is often referred to as the ‘four year rule’.
In this case, our client had converted an outbuilding at the rear of his property into two separate flats. The works had taken place many years earlier and the flats had been continuously rented out since.
When the client later applied to remortgage the property, his lender asked for confirmation that the flats were lawful. This is a common trigger for lawfulness applications, particularly for property investors.
The correct way to establish this is through an application for a certificate of lawfulness (also known as a lawful development certificate). This requires plans of the building and, more importantly, clear and convincing evidence showing when the flats were created and how they have been used over the relevant period.
Clients often underestimate how much evidence is needed. Councils will not simply take an owner’s word for it. Where flats have been rented out, this usually means providing tenancy agreements, correspondence with tenants, rent records and other documents showing continuous use as separate dwellings.
In this case, we submitted forty-seven separate pieces of evidence to Croydon council.
The application was successful and the certificate was granted, confirming that the two flats were lawful. For our client, this removed uncertainty and allowed him to proceed with refinancing, adding two fully lawful units to his portfolio.
This area of planning law is technical and can be risky if handled badly. Different time limits can apply in different circumstances, and certain actions by an owner or landlord can undermine an application without them realising it.
It is also important to understand that applying for a certificate is not a neutral step. If an application is refused, the council is put on notice of what it considers to be an unlawful development, and enforcement action can follow. We have written more about how enforcement works, and what to do if the council becomes involved, here.
For these reasons, we would not recommend applying for a certificate of lawfulness without professional advice. A poorly prepared application can do more harm than good.
If you need advice on a certificate of lawfulness or are concerned about potential enforcement issues, it is worth getting guidance before approaching the council. We deal with these issues regularly as part of our planning enforcement work in Croydon.
Update on the four year rule
Update: The ‘four year rule’ referred to above has now been removed, following changes to planning legislation. In most cases, the time limit for establishing lawfulness through the passage of time is now ten years.
There are, however, transitional arrangements. Developments that were substantially completed before the change in the law may still fall to be assessed under the previous four year rule. This can be a complex area and depends heavily on dates and evidence.
If you are relying on the passage of time to establish lawfulness, it is important to take advice before making an application.
