HELP Certificate of Lawful use and Development

[Bewildered81]

DH and I just bought a house in the UK - we are both from overseas. The house has a small side-extension that fills the space between our house and the neighbour's house. The extension was built without a planning permission, but over 30 years ago, so we thought all was ok. The neighbours seemed nice at first, but once we had moved in, the City Council called and told us the neighbours had made a claim that they had a right of passage through the extension into their garden. No such right is deeded in their or our deed and they cannot actually get through the extension into their garden so we ignored it and did not hear anything more about that claim. Now the City Council just called again and said the neighbours are claiming we are 'intensifying the use' of the extension, specifically the first floor over the passage, which is only supposed to be used for storage, or so they claim. We have made some internal(!) alterations like plastering and replacing rotten woods, but we have done that everywhere in the house as it is in very bad condition. We have no idea how serious to take this. We have a deadline to submit evidence that the development is now legal and that it is an integral part of the house. What kind of evidence could we bring that would help us? Can anyone tell us please how likely it is for the Council to interfere with our use of the room? It is part of and accessible from the house so that seems somehow wrong. What would it mean if they ruled it was for storage only? Are there features a room may not have if it is for storage only? As we both just moved here and our solicitor is helpfully on summer vacation we are rather lost.

No one? This is actually even more serious than we thought - they are claiming that our work on the side extension impedes their right of passage and are asking for it to be made possible that they access the extension - that essentially means blasting a hole in the wall between the properties and them walking across our garden and through our extension. Anyone have experience with that sort of thing? Help please!

I would contact the solicitor you used to buy the house.

How long is you solicitor on holiday? Doesn't s/he have others working with them? . There are plenty of others you could contact instead. How far out is the deadline? Is the letter really from the 'City Council' Have you called the number to speak to them? 'City Councils' don't all go on hols at the same time - you should be able to speak to someone there. Have you popped next door to talk to your neighbour?

Bewildered Have you looked on councils website to see if there are any permissions on the property? As Far as i was aware councils don't actually get involved with deeds. Os the letter from the planning department? And what does it state? X

Ah, just seen it was not a letter, but calls - including one on a Sunday .
Either a wind-up or a scam, or a trolling post.

Thanks both! Our initial thought was to not escalate things and better not talk to them directly - we are still greeting them and such. The claim is so unreasonable that we are afraid they might just be that ... unreasonable.

You probably right, we just need to get another solicitor.

Does anyone know what kind of evidence count in such a case? Is it evidence that they actually can't physically access the side extension they claim they have a right to?

This is interesting in regards to lawful use and buildings x

The Town & Country Planning Act 1990 introduced new criteria for the period after which enforcement action is not possible against a breach of planning control.

THE 4 YEAR RULE

Any building, engineering or other works which have taken place without the benefit of planning permission, and that have remained unchallenged by enforcement action for 4 years or more, cannot be enforced against. So the erection of a building which goes undetected for 4 years will be allowed to remain.

However, the use of the building may not.

THE 10 YEAR RULE

Any change in the Use of land and buildings must have existed for in excess of 10 years before it can be protected from enforcement action. Therefore you may have a perfectly adequate building but no lawful use for it.

Similarly, the ten-year immunity rule applies to breaches of planning conditions (4 years for breaches relating to the use as a single dwellinghouse). Any breach of condition that occurred more than 10 years before the date on which the Council first takes enforcement action against that breach and which has remained continuously in breach over that period may then benefit from immunity.

EVIDENCE

In all cases if challenged you will need to produce sufficient evidence to prove, to the satisfaction of the Council, that the breach has occurred for longer than the appropriate period, without significant changes or breaks in the period of use.

This is one reason for undertaking proper planning searches before you purchase a property or business. What may appear to be a well-established operation may not enjoy the benefit of a lawful planning permission and you could find yourself open to enforcement action if you cannot prove the position.

If you can adequately prove the breach then an application for a Lawful Development Certificatewill provide you with a tangible proof of lawfulness for the future.

No we got the call a couple of days before...it took us some time to understand that we needed to do something about this including maybe asking people who have lived here for longer how these thing usually play out.

We looked up on the Council website there are no permissions or deeded rights there. That must help right?

Yes, we got a call. Is that unusual?

Sorry i know i keep posting. But also evidence etc would include arial photos, receipts from builders, old photos etc etc x

Thanks Maltesermom! That is super helpful - we could kick ourselves for not realising the danger of this when we bought the house.

Evidence that it has been there for longer than 4 years: Will google earth pictures do?

Evidence that it was in continuous use for the past ten years: I guess only the previous owner could attest to that, correct? Do we need to ask him for a sworn statement?

No getting a call in the first instance isn't so unusual. I got one, but had a name so could check it was from the council.

Thanks both!

One more question: does the neighbour have to submit any evidence at all or is the onus of proof on use for all three contested matters : 1) the extension has been there for more than four years 2) it was continuously used 3) they don't have a right to walk through it.

It seems fair that we have to prove the first two, but their right of passage ... that too?

Do you have a lot of neighbours (except next door of course) Also what did the particulars say when you bought the house? Sometimes (if you are good at researching) you can also find OLD particulars if the house was sold before the last owners.

I worked in Enforcement (Planning Department) in the South East and we NEVER phoned anyone. It was always visit first and then followed up by letter. I would do nothing until you receive a letter stating the ALLEGED unlawful use/building and then go from there.
Xx

I think the onus is on you for the first two, but not the third. As i said i was sure deeds don't come into it. But i will have another research and see. I would also defo get in touch with the solicitor that sold you the house and se le if they have any further info xx

Dear Maltesermom, thank you so much for taking the time! We are definitely calling the council this morning - though my partner called them back a day after we got this call and it seems legit - it is the council and there is a complaint. So we might just get onto findings evidence.

If I might ask you two more questions?

If the previous owner doesn't help us, is there any other way to prove that this has been in use...? It is hard to see from the street so I doubt other neighbours could really swear to this.

If the council said it could be used only for storage, what exactly does that mean we can and can not do with it?

Thanks soo much!!

Check through your legal paperwork again, there may be an indemnity policy against the cost of any enforcement in the absence of permission certificates . I suspect it wasn't intended to be a "habitable" room ie. Not to be used as a bedroom. How was it described in the sales particulars? Have you installed any additional windows or partitions which may have triggered concerns firm neighbours.

LIZS, There is nothing unfortunately. But we do have a statement from the previous owners that he doesn't know of any rights, or deeds or permissions on the property and we have in an email that the extension was built a long time ago. All the alterations we have done are internal like plastering and exchanging carpet for laminat etc.
Thanks!

The issues of planning permission and your neighbour's purported rights of access are two separate things. It is likely that if there was any planning application or permission granted that it pre-dates the information the Council has loaded onto its web database. They will still have paper or microfiche copies in the archives, but you would need to have an idea of the date in order for a search to be carried out and fees will be payable.

Planning permission is granted providing the application meets the planning criteria at the time it is made. Planning permission is not of itself indicative that the applicant has the right to have the work carried out where they have applied for the permission.

You definitely need to consult a solicitor. Your home insurance may provide legal cover which you could use for this.

Thanks everyone! The home insurance cover is a great idea, wowfudge...as it turns out the solicitor will set us back quite a few pounds.