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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hi Solicitors, I have received a Planning Contravention Notice

Customer Question

Hi Solicitors,
I have received a Planning Contravention Notice (request for information) from Ealing council regards XXXXX XXXXX outbuilding on our property. One of our neighbours had complained that it was used as a self contained dwelling , however the fact of the matter is it was used by the same family that had rented the entire property from us and this is quite straightforward to establish
On speaking to the council person, i realised that it has been 4 years since the outbuilding was built (jan 2010) and i could potentially gain immunity for use as a self contained dwelling. I understand that i will have to establish a breach has occured and hence would like sound legal advise and probably someone who can handle to case to completion. We have had a lodger staying with us and could establish that the outbuilding was lived in.

If there is potential to establish a breach without incriminating myself and gain immunity for future use as a dwelling place, i would like to hear from you.

The notice is dated 11.02.14 and we have 21 days to respond, so 11.03.14 deadline if i count only working days.

many thanks in advance.

Raj
Submitted: 3 years ago.
Category: Property 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 :

Could you kindly confirm exactly what the separate dwelling structure is please - i.e. is it an annexe with self contained kitchen and bathroom?

Joshua :

You mention that the same family has used the annexe as has rented the property and on this basis consider there is no breach. Is this correct?

Customer:

Hi Joshua, thank you for your interest in my case. The annexe has lawful development certificate as home office/gym and a bathroom and toilet was pre-approved. We later added a kitchenette and Ealing council demanded additional council tax as that made the annexe a self contained dwelling according to them, hence the sink was removed and plumbing was sealed off.

Customer:

You are right, there is no breach as the family was using the enitre property, however we have returned from abroad and occupied it again and since the annexe is just over 4 years old, i am considering gaining immunity for use a a separate dwelling. When we were occupying the property between 2009-2011, we had a lodger with us and can produce bank statements or lease agreement to establish that it was rented (breach).

Customer:

The annexe is perfectly liable with good connection to utilities and insulation and fire escape, i built it with the idea of moving my mother there but did not get building regs approval as sleeping accomodation due to a willow tree nearby and also my mom decided not to move with us.

Customer:

The annexe is under 30 sq m, so maybe we can consider building regs not to apply and ignore it?

Joshua :

Thanks. If you can show 4 years of use of the annexe as a separate dwelling then you can apply for a certificate of lawful use and the dwelling is immune from enforcement action. You must be able to show at least 4 years of continuous use of the annexe as a separate dwelling before the date of any enforcement notice.

Joshua :

You will wish to be conscious of council tax considerations though from what you say the council is already levying a second council tax charge on the annexe.

Joshua :

The above would only be worth doing if the annexe is capable of being sold as a separate dwelling. For example an annexe built in your back garden with no separate access would not be suitable to be sold separately to your main dwelling.

Customer:

I have had the additional council tax removed by removing the kitchen unit and never paid it. I dont intend to sell but to rent it out lawfully. I can establish 4 years of continuous use if need be.

Customer:

'For example an annexe built in your back garden with no separate access would not be suitable to be sold separately to your main dwelling.' This is the case, it has only side access but as siad my intention is to rent it only, not divide the property.

Customer:

I have received the current Planning Contravention notice exactly after 4 years of building it (and renting it) but in oct 2012 i had received a 'Notice of Entry sc239 Housing Act 2004', i am not sure if that breaks the 4 yeras continuous requirement

Joshua :

Thanks. If it is your intention to rent the annexe out under a separate tenancy agreement then as you say it will breach planning control unless you can demonstrate that you have 4 years of use as above.

Joshua :

An entry notice under the Housing Act does not interrupt the 4 year "clock". In order to interupt the "clock" it is necessary for the council to serve an enforcement notice.

Joshua :

Accordingly if you have four years of continuous use then you could consider an applicatino for a lawful use certificate.

Joshua :

Is there anything above I can clarify for you any further?

Customer:

hmm, not sure my last message went thru.

Customer:

i do not want to incriminate myself by establishing 4 years of use which will affect my career as a fit and proper person. Are you able to represent my case with Ealing council? give me a list of documents to establish the breach, check it and answer any queries from the council?

Joshua :

Sorry it didn't seem to but I can see it now. Are you concerned about incriminating your self in terms of letting the property in breach of planning potentially or something else?

Customer:

Yes, all along I have said that it is not rented and now if I produce AST and other proof to say it was rented, I might gain lawful use but concerned about any action against me for those 4 years of use

Joshua :

In what formal manner have you declared it has not been rented out? Have you said so in any formal declaration? If so what declaration please?

Customer:

I had to deal with the council twice before. First when they wanted to levy a council tax for the annexe and second when they served the notice of entry. I think in both cases it was a verbal conversation with the council person who came for the inspection. I might have sent an email too, I ll dig it up.

Customer:

Does it have to be 4 continuous years of renting it out or is it good enough if I establish that it was rented out in year 1 and after the council got on my case I stopped it?

Joshua :

If you have formally represented that the property was not let in order to gain some form of advantage with the council then you need to be cautious as depending upon what was gained, there could be a question of fraud however there generally must be some form of advantage gained for you or another in order for fraud to be ascertained. This is only likely to be of concern if the representation was a formal representation of some kind. Verbal conversations will be a matter of your word against the council so will not count for much. You may wish to check your records carefully before deciding how to proceed to ensure that you have not given a formal declaration and obtained an advantage from the council as a consequence.

Joshua :

Can I help you with anything else?

Customer:

yes pls, the second part of my last question.

Customer:

Do i have to establish breach for 4 continuous years or is it good enough if i establish breach in year 1, i can claim that after that the council was on my case and i stopped renting out.

Customer:

and how can i further engage your services?

Joshua :

In order to apply for a certificate of lawful planning use you must show 4 continuous years without interruption. It does not mean that you could not have had a few breaks between lettings here and therether but substantially it must have been continuously let for 4 years to one or more tenants and not reverted to use by you as a family for any substantial period.

Customer:

ok, thats clear. and how can i further engage your services if i choose to pursue a lawful cert?

Joshua :

You are very welcome to ask a further question asking for me at the beginning and I will be very pleased to assist further.

Customer:

just by ur first name?

Customer:

and lastly, if i choose not to pursue the lawful cert at this point, i believe there is also a 10 year rule?

Joshua :

Yes there is. Generally for change of use, you need to show 10 years however for change of use of a building to a residential dwelling the time required is 4 years by statute.

Customer:

Joshua, thank you for your patent assistance. I think i have taken up more time than i have paid for! I hope you will have a record of our discussion so i may start another Q&A session requesting for you. Have a great day. Regards Raj

Joshua :

A pleasure. If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with though please reply back to me though. The thread will save to your account and is accessible from your customer home page.

Customer:

will do, bye

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

Hi Joshua, I just checked a few details. I have not made any formal representation to Ealing council that the outbuilding was rented or not rented to date.


A Lawful Development certificate was issued on 25.11.2009 under 'class E' for use as home office, this was before work was completed in Jan 2010.


Can i start the 'breach' date' from 01.01.2010? Will that not express a clear intention to defraud?


 


The other issue to consider is, will there be a council tax arrears to deal with if i claim a breach? I dont mind paying retrospective CT. I had contested the CT levy in 2011 and had it removed on the basis that it was not a self contained dwelling.


 


Tx Raj

Expert:  Joshua replied 3 years ago.
It is only possible to apply for retrospective use of a property for the period for which the use claimed has actually been used. So it is not possible to claim that use of a property was used for something before it actually was and therefore I cannot see how you could claim use of a property before work was completed to enable that use to actually take place
Customer: replied 3 years ago.

ok, let me try again.


 


1. Architect draws up plans for outbuilding as home office under class E which is permitted development, a Lawful development certificate for use as home office (without cooking facilities and sleeping acco) is granted on 25.11.09


 


2. Outbuilding is constructed and completed by Jan 2010.


 


3. I can establish breach and change of use from home office to dwelling place from jan 2010 soon after construction was completed.


 


In short, outbuilding was constructed on the basis of class E (incedental use) within permitted development but soon after construction was used as dwelling place.


 


my question is, will that affect the strength of the case?


 


 

Expert:  Joshua replied 3 years ago.
I do not think so. The council will assess evidence you can show that the property was being used as a separate dwelling. Therefore they will want to see evidence of separate occupation which in practice will likely be tenancy agreements. They will not accept a tenancy existed if the property was not capable of supporting a tenancy - e.g. before it had a bathroom etc but it is principally the actual evidence you have of separate occupation that will be the key component of your application.
Customer: replied 3 years ago.

Dear Joshua, this was a good low cost exercise in establishing that I have a case.However I am not looking to do a Diy job of this though and looking for a a lawyer to take up the case to completion. I would prefer that you take it up as you have done a bit of work on it already and I am confident of your advice. Kindly let me know, I am looking to engage someone at the earliest.


 


I can provide an AST and rent payments in my bank account for 4 continuous years and have to respond to the planning contravention notice within 21 days from 11.02.14 which puts the deadline as 11.03.14 I believe.


Regards Raj

Expert:  Joshua replied 3 years ago.
Thanks for your reply. Unfortunately I am not permitted to accept referrals from generated from this site based on my terms of agreement. A good local planning consultant should be able to radily assist you with this and would be much cheaper than a planning specialist lawyer in any event.
Customer: replied 3 years ago.

Hi Joshua, thats unfortunate. I would have felt very confident with you handling the case and also my main concern is by establishing a breach for 4 continuous years, what legal action am i exposing ourselves to.


Hope you could dwelve further below.


 


1. Planning breach: Would we face any legal action or penalties for the planning breach, using the outbuilding as a separate dwelling that was rented out? The lawful development cert gained under permitted development specifies use as class E without cooking facilities and sleeping acco. This is the first time we will disclose in writing how the outbuilding was or was not used.


 


2. Building regs: Outbuilding does not have BR for use as sleeping acco and if i establish a breach, clearly regs have been disregarded. Any possible legal action or penalties for this?


 


Going forward, i understand i may gain lawful use as a separate dwelling place, will that be subject to building regs approval?


 


many thanks Raj

Expert:  Joshua replied 3 years ago.
I am sorry for the disappointment - I am grateful for your confidence however. I would be delighted to continue to assist. Unfortuantely I am struggling to justify further time on this matter based on the original question value. If you are able to kindly consider adding a bonus or further rating of similar value to the original question value or posing another question I would be delighted to assist further.
Customer: replied 3 years ago.

Surely, i was wondering the same. I have taken out a subscription, so i guess a further rating shud ensure you are compensated for your time? would you prefer it to be a new question?

Expert:  Joshua replied 3 years ago.
Thanks - it is entirely up to you. I am compensated at any time you submit a rating so it makes no differerence from my point of view. You may preer to keep the above in one thread than raise a new question.

I look forward to hearing from you.

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