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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 Josh, Thanks to your in depth knowledge and assistance,

Customer Question

hi Josh, Thanks to your in depth knowledge and assistance, i feel i have almost all the information to respond to the Planning Contravention notice. i would like you to have a look at the blank notice and suggest any thing that we might have missed out. I can upload the pdf once you respond and we can go over it tomorrow if need be. Tx Raj
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 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 :

My apologies for the delay in reverting to you. I would be very happy to assist with this

Customer:

Hi Josh, let me try to load the pdf

Joshua :

certainly…

Customer:

hmm, still trying to load

Customer:

seems uploaded, wonder if u r able to open it?

Joshua :

Thanks - just reviewing...

Customer:

ok, tx

Joshua :

for clarity, may I clarify that your query is to confirm that there is nothing we should have discussed previously in my view?

Joshua :

MAy I confirm that no one else other than you and your family live in the main property?

Customer:

i am not sure i understand ur question. The reason for this request is you have given me almost all info needed to respond to the notice, just wondering if seeing the actual notice would introduce a new variable we have not previously covered

Customer:

we have a lodger living in the main property with us

Joshua :

Thanks - do you have a lodgers agreement of some kind? Does he share common facilities - e.g. bathroom kitchen etc?

Customer:

we had a lodger with us before the OB was built, after it was built, he moved in there and we have a tenancy agreement for it and rent paid into bank account. He did not need cooking facilities, so i refuted the council tax levey and removed the kitchenette, we may say he shared the main house kitchen. OB has its own shower and toilet

Joshua :

Thanks. For clarity is there from what you say a lodger living with you in addition to the person living in the OB? Or do you no longer have a lodger with you since he moved out to the OB?

Customer:

yes we did, after he moved to OB on a tenancy agreement, we had another lodger in the main house, still only a total of 4 persons occupying the whole property (inside HMO rules)

Customer:

to complicate things further, we rented the main house between nov 2011 to feb 2014 on a AST whilst we were abroad. The OB was occupied by the ex lodger throughout.

Joshua :

Thanks. So leaving aside the OB tenant, how many lodgers in total do you have living in the main house with you and your family?

Customer:

1 lodger and 2 of us (husband and wife) named on the Notice

Joshua :

Thank you. On that basis I cannot see any further issues besides those already discussed that may rear their head. Your lodgers in the main home as you say are within the limits prescribed by the Housing Act and so your house should not be classed as an HMO.

Joshua :

The council are likely to want to see tenancy agreements dating back 4 years if you wish to claim that the OB is a separate dwelling and they may want to see lodgers agreements for your main house lodger - if you don't have a LA it may be worth asking your lodger to sign one. It is not strictly necessary but the council will likely to want to see paperwork

Joshua :

Is there anything above I can clarify for you?

Customer:

Yes pls, i posted this in another question to u.

Customer:

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

Customer:

does the Planning contravention notice stop the clock of 4 years, i seem to be tight on time to claim 4 continuos years of breach? Also the 21 days to respond, will it be 21 working days as normal?

Joshua :

You would normally need to demonstrate four years of use to qualify for a lawful development certificate but can apply before this which will be assessed just as a planning permission would be before a property is built. Once the certificate is issued by the council it is conclusive and cannot be retracted unless information given to the council can be proved false. Therefore once you have the certificate a new breach can occur leading potentially to another 4 year period for a further certificate for a different use in accordance with that new breach

Customer:

For sake of clarity, does there need to be a minimum period of use as 'incedental to enjoyment of the house' after the OB was completed on the basis that LDC was granted for that use before the breach started?

Joshua :

No once the council have granted the LDC, providing you did not give them false information and they can prove as much, the LDC is conclusive from that date and cannot be retracted nor is it dependent on some continuin minimum period of use.

Customer:

Does this not constitute 'false info', getting the LDC on the basis as 'incedental' use and immediately after using it as self contained dwelling?

Joshua :

No providing the information was correct up until the time you gave it - e.g. that up until that point you ha used it as incidental use.

Customer:

That is the challenge i face in my case, since it was new built, there was almost not time for it to be used as 'incedental'. Pls cud u also clarify if this Notice stops the 4 year clock?

Joshua :

But you say you obtained a certificate of lawful use for the building over four years ago. On this basis once the certificate is issued that is that. If you wish to change the use you need four years from the date of that certificate. The enforcement notice stops the clock on the date it is issued.

Customer:

Ok that is more than clear now, its just that other experts on the subject seem to suggest a period of incedental use before the breach, i do not have the time to claim that. Sorry, does the Planning contravention notice stop the clock on the date it was issued? 11.02.14

Joshua :

yes date the notice was issued stops the clock

Customer:

Josh, so that you operate within the terms of ur agreement, are u able to assist or verify the information i fill out on this Notice? i understand the extra time and effort required and i believe i can compensate you via a bonus, feel free to suggest an amount too.

Joshua :

I would be happy to do so. The site is about to bring on board an additional services feature that will allow for this kind of arrangement but it is presently being finalised with a view to launching it in the next week or so. For now the simplest way is as you suggest if you are happy to do so.

Joshua :

If I might suggest that you complete the form initially scan it in together with a copy of the LDC you already have for y reference I can go through it and suggest any amendments or additions

Customer:

Brilliant, i am glad there is a way for you to continue providing sound advise and be compensated for it.

Customer:

Allow me to upload the LDC now and i shall take some time off to complete the Notice and scan it again. tx

Joshua :

A pleasure. I have an appointment now but will be available again after 1.30pm throughout the afternoon. Please take your time.

Customer:

ok, thank you once again Josh.

Joshua :

A pleasure. I look forward to resuming a little later.

Customer:

Josh, when u r ready. i am unable to load more docs, wondering if u have to accept from ur end?

Joshua :

Oh dear. No I have no control at my end. I will email professional support and ask them if you can email he documents through them. Alternatively you could contact customer services and arrange to email them via them?

Customer:

yes, let me call them, but i ll try once more b4 that.

Customer:

gone thru, maybe it required u to be active on ur end

Joshua :

Thanks. If I can just comment with the appropriate letter:
B) A minor point but mortagor should be mortgagee. The mortgagor is the lender.

Joshua :

D) Unless tenant moved out in February, if he is still there consider replacing February with "To Date"

Customer:

noted

Joshua :

F) Only if he actually does or is allowed to use your kitchen should kitchen be included

Customer:

noted, i think i might have created a HMO breach with that, will strike out.

Joshua :

I) Consider adding "under terms of tenancy agreement referred to above"

Joshua :

S) Consider replacing with "Never let to multiple tenants. Only one tenancy agreement ever existed at any one time for main building as per above dates. Only one tenancy agreement ever existed at any one time for out building as per above dates. See above for information on tenancy agreements"

Joshua :

A lodger is not a tenant and it is important not potentially confuse the position.

Joshua :

Consider distinguishing between main property and out building here so it is clear where there are shared facilities - i.e. for your lodger.

Joshua :

U) Again consider distinguishing between outbuilding and main property. The OB is used as a self contained unit based on your argument. The lodgers room in the main building is not.

Customer:

R: Lodger agreement- striked out

Joshua :

Re the LDC you have kindly uploaded. This is the application form - you were granted the certificate subsequently correct?

Customer:

yes, pls see doc uploaded after the draft notice

Customer:

pls let me know if i need to upload again

Joshua :

Sorry - got it. That looks fine.

Joshua :

Is there anything else I can help you with?

Customer:

yes pls, i am looking into a possible HMO breach as that is also part of the notice

Customer:

in reality the OB tenant did not need cooking facilities and in 2011, i had removed the kitchen sink so that council tax is not levied on the OB.

Customer:

all the same, will that be considered as kitchen shared with main building by default?

Customer:

the officer from Valuation Agency specifically said the OB was considered a self contained acco if it had a kitchen sink, and did not mind the cabinets there. so i removed it and she removed the CT on the OB

Customer:

in hindsight i shud have paid the CT

Joshua :

Does he continue to share the kitchen in practice?

Customer:

nope

Customer:

he just needed a kettle and microwave in OB

Joshua :

Fine so on that basis I would consider removing reference to his sharing a kitchen.

Joshua :

Providing he does not on the basis that he has a separate tenancy for a separate building, there should be no HMO issues.

Customer:

ok, then in G shall i add the OB has cooking facilities? It does have a kitchenette with the sing and tap removed.

Joshua :

Obviously this goes hand in hand with the councils response to the evidence you submit and whether they are prepared to accept that the OB is a separate building. You need to be careful about cooking facilities as you do not want to get into issues about previous disclosures re council tax. Consider something like the tenant makes his own arrangements about food and you have no direct involvement or something of that nature.

Customer:

The Planning officer just called me and i confirmed that i am still within the time to respond to the notice

Customer:

i also quickly checked docs to provide, AST, Builders invoice and she mentioned council tax records

Customer:

i am bit unclear how to navigate that as obviously a self contained acco needs to have cooking facilities and not share it with main building to avoid HMO breach but i have not paid CT for OB

Customer:

coincidently, the tenant worked in a hotel where meals were provided on duty

Joshua :

There may be council tax consequences in respect of any successful application - certainly going forward. You cannot have a separate building for planning and at the same time not pay council tax.

Customer:

i am quite happy to pay it going forward, even pay it retrospectively, just thinking of fraud implications.

Joshua :

Based on what you say I cannot see that is likely. From what you say you removed sufficient kitchen to satisfy the VO and the tenant has subsequently perhaps moved n some appliances. This is not your responsibility.

Customer:

ok, finally, if the council does not accept that there was a 4 yr continuous breach based on info provided, what could i expect...an enforcement notice?

Joshua :

The will take enforcement action which you can appeal if they do this. There are instructions on how to appeal on the further notice of enforcement they would serve and I am happy to assist you at that stage should this be necessary however the better the documentation in terms of tenancy agreement and rent records you can give thm the more difficult it would be for them to justify enforcement action.

Customer:

and in ur experience, enforcement action is in the form of?

Joshua :

It is an enforcement notice telling you to take the required action within a specified period failing which they will take action in the courts

Customer:

ok, that wud usually be to stop the tenancy or break down the OB?

Customer:

also, once i got the notice i had asked the tenant to leave temporarily till the Notice is responded. Is it better to claim that AST is in force or has ended (after 4 continuous years)?

Joshua :

They could not get you to take down the OB as you already have a certificate for it. That cannot be undone. All they could seek is that you use it as per its original use again in enforcement.

Customer:

ok

Joshua :

You cannot make a tenant leave temporarily. He has tenant rights and is entitled to notice. The tenancy remains in force unless he agrees to surrender it and notwithstanding this he has ever right to move back in. Be careful as he can sue you for unlawful eviction which can be serious so letting him back in if he wishes as a matter of urgency could be wise.

Customer:

actually he is on holiday

Joshua :

Thats fine. When he gets back he must be allowed back in though or you risk the above claim from him.

Joshua :

If you wish to end the tenancy you must give him a s21 notice with the required two months notice period as per the Housing Act.

Customer:

yes, thats all fine. He is very co-operative and has space in the house to move too which was our verbal agreement.

Customer:

i am only considering 'ending' his tenancy regards XXXXX XXXXX notice and possible enforcement action

Joshua :

In view of the fact that you wish to argue that it is a separate building this may be sensible to defer until after the outcome of your response and any subsequent appeal is known.

Customer:

ok . Josh on the same scale of bad service to excellent service, what wud you rate me as if i left a bonus of £100 for todays chats?

Joshua :

That would be extremely generous but please do not feel you have to be quite so generous. In any event certainly very happy to continue to assist further as needs arise.

Joshua :

Hopefully the additional services functions will come online in the next few days which should make any future interactions more straightforward in terms of documents etc.

Customer:

I dont think so Josh, you have done as much work as a Planning consultant or solicitor. Thats all i can think of now, i will discuss with my wife tonite as it involves her too.

Joshua :

As I say very kind - thank you very much in advance. I wish you the very best of luck with response. Do not hesitate to revert if you need any further support with the above.

Customer:

thank you, XXXXX XXXXX now.

Joshua :

Best wishes

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 2 years ago.

Strange, i am getting an error message from justanswer when i try to leave the bonus, i will speak to helpdesk.

Expert:  Joshua replied 2 years ago.
Oh dear. Thanks for trying. I have aso asked professional support to assist you.

Do let me know if I can assist any further.

Kind regards
Customer: replied 2 years ago.

Hi Josh, Thank you once again for your assistance in dealing with the Notice so far.


I recognise that not having paid the council tax weakens the claim for breach of use. Attached is the VOA letter that states 'annexe is no longer a dwelling for CT purposes.'


 


We also had an instance of a Notice of Entry also attached, would like to clarify if that might have stopped the clock?


 


Going forward, in light of the new information i have gained, i am seriously considering a low risk strategy of not claiming a breach now and that the OB use was only incedental and ancilliary and working towards another 4 years after which i can claim a change of use breach. I will have the VOA enter the OB on their list on the basis that i wud like the kitchen sink reinstalled and pay CT and keep a record of other supporting documentation.


 


Is the above strategy viable? Since an actual Enforcement notice has not been served, i suppose the safest thing to do now is to establish the OB use was only incedental?


 


Appreciate if you would leave an answer for me by end of play today, so i can send off the completed Notice this weekend.


 


Attachment: 2014-03-07_120726_14_islip_manor-annexe-voa-removal-04.07.2011.pdf


Attachment: 2014-03-07_120756_14_islip_manor-annexe-notice_of_entry-22.10.2012.pdf


 


many thanks Raj

Expert:  Joshua replied 2 years ago.
the Housing act entry noticed is not affect the planning position In so far as it does not stop the clock. The declassification of the outbuilding as a dwelling for council tax purposes does not in and of itself prevent an application for lawful use however the circumstances and information surrounding the declassification can be material - i.e. what was told to the valuation officer at the time

if the council have evidence that the outbuilding was being used as an salary to the main property based on the valuation office as investigations notwithstanding the tenancy agreement, you may find that the council use any such evidence as a means to refuse to provide lawful use
Customer: replied 2 years ago.

Tx Josh,


For sake of extreme clarity , If we do NOT get an Enforcement Notice following the Contravention Notice that has been served, then we can always claim a breach after another 4 years from the date of the Contravention Notice 11.02.14 or the Council's eventual decision in any case?


 

Expert:  Joshua replied 2 years ago.
Yes quite so.
Customer: replied 2 years ago.

tx you Josh, I have also asked for my correspondence to VOA when i refuted the CT to see what 'formal rep' i may have made, shud be easier to make a decision based on that. I have uptill 14.03 to respond to the notice.


 


I do have another case involving surrender of shed to Hounslow council but do not agree with the compensation offered, i believe they shud make a calculation involving marriage value like they do for a lease extention, i suppose i can post this question to you?


 


You have a lovely weekend.


 


cheers Raj

Expert:  Joshua replied 2 years ago.
Yes of course. If I can assist with it I will be very pleased to.

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