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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hi Joshua, my main concern now is by establishing a breach

Resolved Question:

Hi Joshua, my main concern now is by establishing a breach for 4 continuous years, what legal action am i exposing ourselves to.

I am not able to fit in all of it in this box, once you respond, i can post the full question.

Thanks Raj
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

Providing you have not provided a formal representation to the council in order to gain an advantage that the property was not used in the way you now wish to claim it was, I cannot see you are exposed to any legal liability.

Customer:

thank you for looking into this again.

Customer:

Could i please understand if any of the below would constitute a 'formal representation'

Customer:

I applied for a Lawful development certificate under permitted development for class E 'ancillary/incedental' use as part of the household before construction

Customer:

and immediately after construction, my claim will be that it was used a a dwelling. will that not bee seen as intent to fraud? will the initial application not be seen as a formal rep?

Joshua :

For the avoidance of doubt you claimed that an outbuilding was used as part of your house prior to renovation works and now wish to claim that after renovation works were completed you subsequently used the building separate to the property? Is that correct?

Customer:

The OB was a completely new build after we purchased the property in june 2009. My architect has applied for lawful development as a home office/gym so as to eliminate the need for PP. But soon after construction, i have to claim the breach has started. Hence i am concerned that my intent to build it was to use it as a dwelling although i (my architect) applied and got permission for it as 'part of the house'

Joshua :

There is no law that prohibits you from changing use of something without planning consent beyond the right of the LA to enforce against such a change. I can see no difficulty with the position.

Joshua :

Providing you do not claim the property was used as a separate dwelling for any part of the period you previously claimed was ancillary it would not appear to present a problem.

Customer:

'Providing you do not claim the property was used as a separate dwelling for any part of the period you previously claimed was ancillary ' and that claim had to be in the form of a formal representation? having discussed that verbally would not count against me?

Joshua :

Anything said verbally is of little evidential value. If the council have recorded it it is one mans word against another.

Customer:

ok, my architect has reccomended 2 routes and the second appears to be less incriminating, although i now see sense in what you have said that change of use in itself is not a crime.

Customer:

The potential routes are;


 


1 - Apply for an LDC based on the fact that the building has been used as a separate dwelling for 4 years and is therefore immune from enforcement action.


 


2 - Apply for an LDC on the basis that the building has been used for its permitted purpose (i.e. ancillary outbuilding) and that the renting out of the annex to a lodger does not constitute a breach of planning control – i.e. despite being rented out – it remains ancillary and incidental to the enjoyment of the dwelling house.


 

Customer:

if i opt for the second route, can my lodge use it as sleeping acco in the future?

Joshua :

Councils can be inconsistent in how they treat annexes for rent to separate dwellings. Some argue that this is not an ancillary use whilst others are more ready to accept the position. If considering option 2 you would need to ascertain your councils position on such activities. There is little point in applying for option 2 if you find yourself in receipt of a further enforcement notice providing that renting out the outbuilding is not ancillary to your property.

Customer:

Makes sense, i might as well apply for full immunity if there is little chance of facing action for disclosing the breach. Worst case scenario, the council establishes that i have made a 'formal rep in order to gain an advantage that the property was not used in the way you now wish to claim it was', what action/penaly could i possible face?

Joshua :

It would depend on what basis you had made a false declaration. e.g. if you had done so to obtain benefits or a council tax saving, they could allege benefit fraud. However I presume the only possible scenario for you would be in order to obtain a previous lawful development certificate?

Customer:

There was council tax levied on the annexe, i refuted this and we agreed that removing the kitchenette would remove their classification as a self contained acco. In reality my lodger never cooked but used it as sleeping acco with bathroom facilities.

Customer:

so yes there was a council tax saving and i adhered to that condition (no kitchenette). Can i still claim a breach without cooking facilities and on the basis that it was used as sleeping acco with bathroom and toilet facilities?

Joshua :

I can see no issue with that.

Customer:

good, Josh, i wud like further clarification on building regs position that i have raised above. i will post it as another question. thank you once again.

Joshua :

Many thanks. Certainly. I look forward to assisting you further in your new question.

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and other Law Specialists are ready to help you
Customer: replied 3 years ago.

Hi Josh, One concern i raised before but was probably not clear enough concerns the below.


 


'Provided the original purpose of the extra building was purely incidental to the enjoyment of the dwellinghouse, its later use as primary (but not separate) residential accommodation is not prevented. In order to demonstrate that the outbuilding had originally been erected for a strictly incidental purpose, I suggest that it would be necessary to show that it was actually used for that purpose when first built, and for some time thereafter. How long this period would have to be has never been settled, but I suggest that it would need to be for several months at the very least, if not a year or more.'



The OB was newly built in Jan 2010 and the Planning contravention notice was served on 11.02.14, giving exactly 4 years to establish a continuous breach. There is almost no time available for its 'incedental' use. How would that affect the case?


 


tx Raj

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