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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 27738
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Where retrospective planning rights exist, for example a

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Where retrospective planning rights exist, for example a property that has a s106 agreement on it restricting it's use to private residential only but it has been used as a bed and breakfast for over 4 years under current ownership, do the retrospective planning rights for lawful use stay with the property if ownership changes?If lawful use as a Bed and Breakfast can be established under new ownership, can the other parts of the s106 agreement be made void - such as occupancy restrictions to certain people that qualify on the s106 qualifying criteria for specific local need?
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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?

Customer: replied 7 days ago.
It is a property I am thinking of purchasing and the present owners have not sort a certificate of lawful use. The property has a s106 agreement on it which is mainly intended to restrict occupancy to those with a Specific Local Need or a Key Worker as defined by the local council. If I can work out how to attach documents I will attach the agreement. The property has been run as a B&B (and part of it as a self catering annex) actually for around 10 years, i only mention the 4 years as I was told that is what is required for retrospective planning rights to be activated, I assume by that the council have no choice but to grant the lawful use certificate. Once I purchase the property I would like to apply for the lawful use certificate and I want to make sure that the retrospective planning rights as I understand them (feel free to correct me) will carry over to me as the new owner of the property? I hope my line of thinking, questioning is clear. I want to make sure, before I purchase the property that there will be no problem with me establishing lawful usage which will be against the 106 agreement? Also, as per the original question, will I then be able to challenge the whole s106 agreement since the usage has been lawfully changed?

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.

Customer: replied 7 days ago.
you are saying that in order to get lawful change of use from a residential property as it is now, to a B&B I or the current owners need to establish 10 years use, not 4?
Customer: replied 7 days ago.
Also, when establishing "10 years" will 10 calendar years count as 10 when there is a holiday on and off season here? IE the property has been used as a B&B during the holiday season, say from March to November but would normally remain unused as a B&B for part of the year due to being the "off" season?

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.

Customer: replied 7 days ago.
Thanks for that Joshua. The house has still be occupied by the owners as their main dwelling but there are 6 bedrooms and 5 are being used for holiday accomodation (4 as B&B and 1 as a separate self contained self catering annex). Each bedroom is ensuite but I'm not sure if proper fire doors have been installed etc? Which type of application do you think this would be, C3 or C1? If I wanted to go for the C1 usage what sort of proof is required to establish the use?

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.

Customer: replied 7 days ago.
Ok - can you address my question on whether seasonal use counts as continuous use? And what evidence is required typically?

Certainly. You might like to look at the planning appeal decision in N Devon DC v. SSE and Rottenbury [1998] 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”.

Customer: replied 7 days ago.
That's excellent thanks but also please can you advise on what evidence is required/accepted?

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.

Customer: replied 7 days ago.
Thanks for that, and a further question - would it be possible to get the entire property accepted for use as a B&B or just the rooms that are currently used as holiday accommodation? My local council are not the quickest off the mark so it may be possible to "sneak" such a request through using appropriate wording on the application?

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

Customer: replied 7 days ago.
Ok, so the area currently occupied by the owners would remain as residential use (don't forget about the s106 agreement, i assume this has been taken into account in your answers)? What would happen if the current owners applied for the CLEUD before the exchange and whilst the council were considering it, we exchanged?
Customer: replied 7 days ago.
The reason I ask is that I am obtaining a residential mortgage so I do not want my lender to know during the application stage that I may use the property as a B&B. So I cannot ask my conveyance solicitors to include in the contract a requirement for the present owners to provided assistance in giving evidence for the application as that would flag up the issue to the lender. Once I have the mortgage and exchange is complete, I will simply advise the lender that I have decided to operate as a B&B and my broker says they will be fine with that.

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.

Customer: replied 7 days ago.
Many thanks for your advice, I am aware of the consequences. I can say with my hand on heart that at time of application I am not at all certain I would like to use the property as holiday accommodation. My broker is not necessarily being cavalier, he's simply stating the at application stage a mortgage on one principle would likely be refused, but that once the purchase has gone through and should a change of heart take place, the particular lender has historically accepted this with no issues.

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.

Customer: replied 7 days ago.
Hi Joshua, many thanks for your assistance.

A pleasure. All the best

Joshua, Lawyer
Category: Property Law
Satisfied Customers: 27738
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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