LDC garden house and change of use to private dwelling

[martiangirl]

Hello ,

I hope some of you good people can shed some light on what is best to do .
In 2000 I ve had an outbuilding built in the garden of my terraced house under permitted development rule. I consulted my council beforehand and obtained a letter from them prior to works stating that they would consider a hobby building a PD and it would not require planning permission.

Building inspector came after to check the drains and I used the building as a play den for my sons. When they became teenagers one of my son lived there till around end of 2008 when I began renting it out to tenants. The building has a kitchenette and shower room wc and separate entrance from the back from alley way. The cooker / washing machine etc was installed in 2009 so that the property was self contained.

I had new neighbours inform the council that someone other then my family lives in there and the inspector is coming tomorrow to have a chat and discuss my options. he has no issue with the building but only with change of use.

My questions are these:

1. If it was used for over 4 years i.e. from 2009 as a rental property does it mean I can apply for lawful development certificate to continue that use? I am confused if the 4 year rule applies to breaches of planning in existing dwellings or does it apply to change of use which makes the property a private dwelling. The inspector seemed to think that I needed to have it as rental property for 10 years not 4. Is he right?

2. Would I need to have an inspection for the building regulations again? cooker and hood may need repositioning I fear.

3. Would I be liable for arrears of council tax if I show it was used as rented dwelling?

4. If I ask my tenants to leave can I revert to using it as part of main dwelling for myself only without any further problems?

I would be most grateful for any comments as my head is swimming.

 

[freddiemercurystwin]

1) My understanding is that it will come under the 4 year rule not the 10. See here: http://www.legislation.gov.uk/ukpga/1991/34/section/4

2) Technically yes but only really if they threatened you with legal action if there was a danger to life. Of course your obligations as a landlord dictate that the dwelling should be safe so if it is not 'safe' then you risk prosecution should something go wrong.

3) Don't know, seems reasonable to me.

4) See 1)

 

[martiangirl]

Thank you so much for your reply.

From the link provided it seems I shall have 28 days to comply with any enforcement notice if it requires me to "cease the activities" . which in essence will mean asking the tenants to vacate. I expect they may give more time to enable them to find alternative accommodation at their discretion.

Am I correct in my assumption that if I want to continue renting it I should appeal and simultaneously apply for LDC ?

The arrears of council tax is something I shall have to discuss with them irrespective of what course of action I decide to take I imagine. Maybe best bot to mention it al all.

As far as building regs - I suppose I ll cross that bridge if I have to.

 

[freddiemercurystwin]

Don't do a damn thing until they write to you. Forget about the 28 dyas thing, they would have to jump through all kinds of legal hoops before any legal action was taken.

Assume its someone from Planning coming to visit not Building Control? they are two separate bodies within the council.

 

[martiangirl]

Its the guy from planning that's coming.

I ve got tenants there though so I its pretty messy. I imagine they wont want to conitinue renting with this thing hanging over them.

 

[martiangirl]

They will have to serve me with enforcement notice I imagine as council needs to tick their boxes but why did you say that I wont need to do anything afterwards?

 

[tony1851]

They probably won't serve you with an E.N. at this stage - you'll just get a snotty letter advising that they will consider enforcement if you don't cease the alledged breach of planning control within a quoted time.


If they subsequently serve an E.N., you need to act quickly and should really seek the help of a planning consultant. If you don't appeal within 28 days, the notice takes effect. You can appeal yourself but it's easy to mess up big-time if you're not sure what you're doing.

In the meantime, as fmt advises, sit tight and say/do nothing.

 

[martiangirl]

that's really helpful,thank you.

I wont take any action yet but will need to decide if I ultimately I want to go ahead with obtaining LDC to enable me to continue to rent it out based on the 4 year use to date precedent. I shall need to consider if they are likely to make me pay separate bills for water rates / electricity standing charge etc as well as it will be a factor in assessment of viability. Maybe that's nothing to do with the council though ..does anyone know?

 

[martiangirl]

The inspector from the Council just left. he was adamant that I needed to have had the house rented out for minimum of 10 years to qualify for continuous use dispensation. I told him he was wrong and he said I was advised wrongly and he will come back to confirm...

In the planning portal it clearly states the following:

Time limits
The Planning and Compensation Act 1991 introduced rolling time limits within which local planning authorities can take planning enforcement action against breaches of planning control.

The time limits are:
•
four years for the change of use of a building, or part of a building, to use as a single dwelling house. Enforcement action can no longer be taken once the unauthorised use has continued for four years without any enforcement action being taken
•
10 years for all other development. The 10 year period runs from the date the breach of planning control was committed
Once these time limits have passed, the development becomes lawful, in terms of planning.

Who is right? I think he is misinterpreting the law.

 

[freddiemercurystwin]

You can direct him to the link I provided. That is the legislation.

 

[tony1851]

As above, your planning official is incorrect. It may be that he is considering you renting out the property as a 'change of use', in that he sees it as a business.

However, the wording of the legislation makes it clear that the use of any buildlng as a dwelling comes under the 4-year rule (ie regardless of whether you live in it or rent it).

(BTW, that advice from the planning portal is incorrect; the development does not become 'lawful' after the time limit has passed, it merely becomes immune from enforcement proceedings, which is not the same thing).

 

[martiangirl]

freddymercurystwin,
thank you. I have actually showed him the relevant page on my laptop but he was still adamant he was right about 10 year change of use rule.

Toni1851,
I think you ve highlighted a good point- he was referring to change of use so he must be considering renting it out as a business. I am not sure though if that would classify that house for business use. This may be a loophole to allow them to enforce cessation of rentals.

 

[tony1851]

In planning terms, there is no practical difference between the occupiers of the house renting it from you, or owning it outright.

On the otherhand, if you were using the building as a beauty parlour or for selling things, with clients/customers coming and going, that would constitute a change of use and therefore come under the 10-year rule.

Is the man from the council a planning officer, or an enforcement officer? Either way, I think they would have to get clearance from the council's legal department before issuing an E.N., and they may see it differently.

 

[martiangirl]

Tony1851

I think he was a planning officer as the note n the door was from the Planning department.

He called me later today to say he needs to run it pass their legal team as you suggested they need to. We talked further about my case and I told him that my son turned 18 in 2003 and he moved in there to live an independent life and paid me nominal rent. he said this may satisfy them in terms of application of 10 year rule but he will check nonetheless because the council do not want to issue enforcement if its not legally right.

I made a call to the local planning consultants for an informal chat and the guy there said that the 4 year rule acid test is that the house had all the facilities like cooking/washing/wc and separate electricity perhaps etc to show it was an independent household. And that the council doesn't issue enforcement in the first instance but a notice of contravention which can be appealed against.

So I will wait till Monday to see what they say and take it from there.

Many thanks for everyone's help, its very unnerving dealing with this.

 

[freddiemercurystwin]

And not wanting to really ruin your day but you should also be aware that you may also be subject to backdated Income Tax if HMRC finds out.