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Hello and thank you for your question. My name is ***** ***** I will be very pleased to assist you. I'm a practising lawyer in England with over 15 years experience.
May I confirm with you please, whether a certificate of lawful use has yet been sought to confirm retrospective planning rights or has this not yet been done, but rather you are simply saying that it has been used for more than 4 years as above so would have a right to seek retrospective consent?
Thank you. Change of use requires 10 years of continuous use in breach of a planning condition in order to benefit from lawful use. There is an exemption to the 10 year rule whereby for changes of use to a single residential dwelling from another form of use, only 4 years of use needs to be shown rather than 10 years.
Notwithstanding the above, usage rights runs with the property not the owner so it would survive a change of ownership. However consider that if you buy the property without CLEUD in place, you will be responsible for making the application and for a period which for the main you will not be able to give any direct statement for. Accordingly you would be reliant on the existing owners to provide much of al all of the evidence to support your application. Accordingly by far and away the safer approach is to have the existing owners make the application and delay completion until they obtain CLEUD from the council. In default of this your solicitor should ensure that appropriate contractual conditions are agreed that they will use best efforts to provide you with all necessary evidence and statements to enable you to achieve CLEUD yourself and potentially consider holding back a retention to pay for costs in relation to the application and / or a discount on the property price if applicable in case the application does not succeed.
Change of use of any kind is 10 years except for change of use to a residential private dwelling (so called C3 planning use) which only requires 4 years.
If use is being sought for use as a B&B (so called C1 use) then there is no exemption and the 10 year rule would apply.
Note if use as B&B is minor - i.e. occasional limited B&B use ancillary to the main use as a dwelling house then it may be possible to operate under a C3 planning use, but if the property is given over mainly to B&B use - e.g. has adaptations typical to B&B such as fire doors etc then this does not apply.
Based on what you say that would not fall for ancillary B&B use as the majority of the property is used for non residential dwelling. This would firmly place it as C1 use in my view and if that use is not lawful, they will need 10 years of continuous use to be entitled to CLEUD.
Certainly. You might like to look at the planning appeal decision in N Devon DC v. SSE and Rottenbury  PLCR 356. In this case, the dwelling in question was adapted for holiday accommodation for short lets between May and September each year. In the period from October to April the premises were not occupied at all. CLEUD was sought on the basis that the cottage had been used as a holiday cottage for more than 10 years in breach of planning (in this case an agricultural occupancy condition). In an appeal the council's refusal to grant an CLEUD, the Secretary of State granted the certificate, because “such seasonal occupation, while intermittent, could nevertheless be regarded as part of the normal, regular pattern of use of the property as a dwelling-house for holiday accommodation in breach of the condition, which, in the absence of any evidence of alternative or intervening uses remains subsisting throughout any period of non-occupation, and is not therefore considered to have given rise to a fresh breach of the condition each year”.
In two words - detailed and complete. You should expect the council to use any basis to refuse consent. At a minimum, a detailed sworn statement by the owners as to the type of use (in detail) and period. This is liable to attack without supporting evidence, in particular accounting records showing rental receipts for the ten year period, any further business registration evidence for as much of the period as possible - e.g. tax filings or accountants letter. The more evidence (within reason) that can be show to evidence the exitance of the lettings business for the period the better - hence why you would be better placed to make it a requirement of your purchase that they make the application rather than you.
Use would usually apply for whole dwelling though if part of the property is used as residence this would normally be allowable as ancillary use to the main use designation
I would strongly urge against this approach which amounts to mortgage fraud if it is your intention to use as B&B and could result in custody if the lender becomes aware and chooses to prosecute - this can happen in a minority of cases and should not be underestimated nonetheless. The brokers advice appears cavalier in this regard and should be sought in writing so he is on record. My suspicion is he will decline to do so.
Also I cannot see that the use would not be picked up by the lenders valuer on inspection. Re your above question, any application made by the owners prior to exchange or completion would be determined by the council irrespective of the purchase. If denied it could result in enforcement action.
Understood. Generally erring on side of caution is the best policy with regards ***** ***** applications. Anything dishonest on the application can technically amount to fraud and because of the amount usually obtained under a mortgage if prosecuted it can be treated as a serious fraud. Generally a lender would not accept a B&B use under a residential mortgage unless the B&B use was ancillary use. The broker may of course be aware of a particular lender that is more flexible in this respect, but I would suggest obtaining any advice which he gives which runs "close to the wire" in writing (email etc) so you have some protection.
A pleasure. All the best