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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.
May I ask for how long you have been letting out the property for please?
During that period, have you consistently used the property for lettings or has it been lived in by members of your family for any significant time during that period?
The period in question regards the planning notice is since 2009 the last 4 years
The flat has been let with periods between tenannts where it is unoccupied
My apologies for the slight delay in reverting to you.
It is lawful to use the annex for purposes incidental to your enjoyment of the property. So for example for family members or friends to stay and so on. However letting out the annexe to tenants or as a holiday home would be a material change of use because such activity is not regarded as incidental use to your enjoyment of your property.
It is normally possible to have a lodger as opposed to a tenant in the annexe but this pushes the boundaries somewhat to their limit and if the annexe is self contained, then the lodger would be a tenant whatever you called the arrangement unless you provide services to the lodger such as cooking or cleaning which would mean that he can still be regarded as a lodger even though he occupies self contained accomodation.
The activities you have been carrying out however would appear to clearly fall for a material change of use unfortunately. If you could show 4 years of continuous use as a separate dwelling then you could seek established use by way of either a lawful use certificate or a defence against any enforcement notice. The council will resist you in this respect typically and so you would need to be prepared to adduce evidence that shows on the balance of probability that you have used the property as a separate dwelling by way of for example tenancy agreements, or relatively continual holiday lettings history and so on.
If you can demonstrate that you can seek to claim established use. As above the test is the balance of probability but the council will typically be obstanate on the point unless you have relatively persuasive evidence though of course you can appear any decision of the council which goes against you.
Is there anything above I can clarify for you?
I am going through a divorce and any documentary evidence would be fragmented as wife looked after the holiday flat and her electronic files would have been deleted with change of desk top . I do have tourist board invoices for advertising for said period and some letters to prove lettings The council through council tax would have details of the tenants for the last 18 months at present there is nothing new that I have been told by your e-mails With Holiday Flat we would have cleaned between lets Also on long term lets we would have provided linen towels bedding etc Can I issue an established use claim by myself or does it have to be through a legal route? The planning officer has been round today to confirm that flat is not let and I sounded him out on above I said with divorce all information was not available with divorce
The standard of proof is the balance of probability but the burden of proof is upon you. The test is not overly high but it will be necessary to produce evidence that demonstrates on the balance of probability that the property was let out for 4 years or more. The council are unlikely to take into account the fact that you are presently involved in a divorce unfortunately. The tourist board adverts are useful but they are not conclusive as they do not prove that the property was actually let out, merely that it was advertised as such. You can give a sworn statement on oath as to the circumstances. If there are neighbours or other third parties who can also provide sworn statements this can be extremely helpful.
Council tax records may assist for any period where a third party has paid the council tax though from what you say this does not extend to the full 4 year period. You may have bank records which show rental received which may support your position.
Ideally of course you would have lettings agreements for the period in question but in default of this, you are likely to need to rely on a combination of sworn statements fro yourself and any other third parties that are prepared to provide such statements (ideally you would have a minimum of two but the more the better) and support those statements with the above surrounding evidence.
In terms of how you challenge the council: if the council have issued an enforcement notice, you can respond to that enforcement notice indicating that you have a defence to the same and submit the above evidence. if they have not served an enforcement notice and in fact do not do so, you have the option at any time to make an application for a certificate of lawful use. This is similar to a planning application and must be determined by the Council in the same timeframe as a planning application for development. The application form for a certificate of lawful use can be obtained from the council are normally is available to download online from their website
is there anything I can help you with any further?