Land change of use

[Gardenlover]

Hi

 

There is a strip of land that runs along the rear of the properties in the street we live. The land was originally bought by the housing estate builder when the estate went up. I believe the land was set aside as a natural area between two phases of the estate and along the public footpath that runs between them. The land used to get strimmed for a couple of years after we moved in, then this stopped, presumably due to inaccessibility. Without our using or maintain the land, we would have had huge tees over hanging our garden by now. 

 

For over 10 years we have been using the part of the land to the rear of our property for various activities garden related. The are is about 10m wide x 4m deep. Then a further 3m is a public footpath running down the 10m length. 

The land has a lot of trees, some up to 25ft. It can also get very overgrown with weeds. The public footpath is not very visible from the land as there are a lot of branches blocking the view both in and out.

 

We have been using the land for BBQs, fire pits, storage and log store for over 10 years. About 5 years ago I put a shed on the land, with access from our garden. The front of the shed is plane with our garden fence, so it's sticks out into the land. The shed can barely be seen from the footpath. I have always opposed putting a fence around it, despite suggestions from other neighbours. I don't intent to put anything else on the land. 

 

I have tried to find out who owns the land in an attempt to buy it. But the builder went bust so I have never made any progress.

 

Unfortunately, the council has received a complaint that some residents (there are others who have cut trees down) are taking over the land. 

The council has contacted me and claims a change of use of land has taken place. They don't seem concerned about the neighbours cutting down trees or maintain the land. 

 

They have advised me to apply for planning permission under the 10 year rule or a lawful development certificate. Both at a cost of £462!

 

Can someone confirm whether the 4 year rule applies to anything in my situation? 

I am also aware of adverse possession. 

Am I right in saying they are different. AP deals with ownership of the land, whereas change of use is planning. I have not fenced it off over the 10 years so don't think I have a claim on that. However, even if I did, I would still need planning permission for a change of use, is this correct? 

 

So my situation is purely planning and getting that approved, whether I own the land or not? 

 

I can't prove that I have been using the land as garden for over 10 years as I have no photos, documents or anything. There is a photo of the kids in the log store from about 9 years ago. The best I can manage are the neighbours signing an aphidavit to say I have used it as a garden for over 10 years. 

 

My Preffered option would be a LDC, but I don't want to spend £462 with no hope of getting approval. 

 

What are my chances with the limited evidence and my circumstances, am I wasting my money?

 

What else could I do to improve my chances? 

 

Thanks
Simon

[ProDave]

I would go down the lawful development route. Can you prove how long you have been using it? i.e a receipt for when you bought the shed?

 

When you submit a planning application for land you do not own, you have to serve notice on the owner that you are doing so. Can you find the owner from the Land registry?  Then serve notice on whoever is listed.  If they have gone bust, someone will have "inherited" the land as part of dividing up the assets of the insolvent company.

 

 

[Temp]

26 minutes ago, Gardenlover said:

Can someone confirm whether the 4 year rule applies to anything in my situation? 

I am also aware of adverse possession. 

Am I right in saying they are different. AP deals with ownership of the land, whereas change of use is planning. I have not fenced it off over the 10 years so don't think I have a claim on that. However, even if I did, I would still need planning permission for a change of use, is this correct? 

 

Yes they are different and ideally you want both in the long run.

 

Re Planning Permission..

The planners normally have 4 years to take enforcement action but where the breech involves a change of use that increases to 10 years. So no I don't believe the 4 year rule applies. You would need to apply for a lawful development certificate for change of use from ?? to residential garden on the grounds that it has been more than 10 years since the breech of planning first occured. You will need to provide evidence that you used it as a garden for at least that long. An affidavit from the neighbours might help. 

 

I believe you could also wait for the planners to initiate formal enforcement proceedings and then appeal on the same grounds.

 

Re Adverse Possession

Find out from the land registry if the land is registered. The (real) land registry site normally charges less than £5 to download a title deed. However you might need to do a "map search" which could be a bit more. I'm not sure if that can be done online. 

 

Any claim to own it under the rules for adverse possession has to be made in the belief that you now own the land. Any admission that you don't (including ticking the wrong box on planning forms) could mean your application fails. If someone rocks up offering to sell it to you for £1 don't accept as they could then back out of the deal having scuppered your claim to own it already.

 

There is no law that says you MUST apply for formal ownership now or immediately after the 10 years are up. If an application now would fail because it's not been adequately fenced off then it might be worth fencing now and waiting 10 years. 

 

If you want to sell before claiming ownership you must tell the buyer and they may ask you to reduce the price or buy an insurance policy against the real owner turning up.

 

It's worth noting that only the real owner can evict you from the land (The planners can only make you return it to its previous condition before the planning breech occured). However this does mean anyone could come and fence it off and you couldn't stop them. The police would only be concerned about a possible breech of the peace.

 

 

[Gardenlover]

1 hour ago, Temp said:

 

Yes they are different and ideally you want both in the long run.

 

Re Planning Permission..

The planners normally have 4 years to take enforcement action but where the breech involves a change of use that increases to 10 years. So no I don't believe the 4 year rule applies. You would need to apply for a lawful development certificate for change of use from ?? to residential garden on the grounds that it has been more than 10 years since the breech of planning first occured. You will need to provide evidence that you used it as a garden for at least that long. An affidavit from the neighbours might help. 

 

I believe you could also wait for the planners to initiate formal enforcement proceedings and then appeal on the same grounds.

 

Re Adverse Possession

Find out from the land registry if the land is registered. The (real) land registry site normally charges less than £5 to download a title deed. However you might need to do a "map search" which could be a bit more. I'm not sure if that can be done online. 

 

Any claim to own it under the rules for adverse possession has to be made in the belief that you now own the land. Any admission that you don't (including ticking the wrong box on planning forms) could mean your application fails. If someone rocks up offering to sell it to you for £1 don't accept as they could then back out of the deal having scuppered your claim to own it already.

 

There is no law that says you MUST apply for formal ownership now or immediately after the 10 years are up. If an application now would fail because it's not been adequately fenced off then it might be worth fencing now and waiting 10 years. 

 

If you want to sell before claiming ownership you must tell the buyer and they may ask you to reduce the price or buy an insurance policy against the real owner turning up.

 

It's worth noting that only the real owner can evict you from the land (The planners can only make you return it to its previous condition before the planning breech occured). However this does mean anyone could come and fence it off and you couldn't stop them. The police would only be concerned about a possible breech of the peace.

 

 

 

Thanks for the replies. 

 

My main issue is then proving use of the land as a garden. Unfortunately I have no documentary or photographic evidence. All I would have is affidavits from two neighbours. Would this be enough? I don't want to pay £462 if I stand no chance....  

 

I do have a photograph of the log store from about 8 years ago, would this help? 

 

I remember quite a few years ago I did download details for the area from Land Registry. I don't think it helped but will hunt it out again. Maybe the registry has changed,would it be worth having a look again? 

 

Thanks 

Stephen

Edited July 6, 2020 by Gardenlover

[Triassic]

1 hour ago, Gardenlover said:

All I would have is affidavits from two neighbours

It worked for me the last time I used this approach. I’m sure the solicitor called them Statutory Declarations. 

[joe90]

Yes I also did this, told the council I could get signed statements and they caved in.

[Temp]

I suspect getting adverse possession will be harder than planning permission. Normally the land would have to be fenced off "to the exclusion of all other" but I suppose a dense "hedge" might also be sufficient. If there is any evidence of people walking onto the land from the public footpath through gaps then forget it. 

 

 

[joe90]

@Gardenlover do your neighbours want to do the same? If they do you can help one another with statements of use.

[the_r_sole]

Quite interesting here, the elephant in the room is that the local authority clearly wanted a natural barrier between two developments, so if they allow everyone to absorb them into their private gardens it means the council have placed an unnecessary planning condition on here, possibly a big can of worms to open - the other thing to check is that there's no drainage/soakaways or services running in there, thats something you don't want to own!

[Ferdinand]

Were I a local I would oppose such an application should it come to my notice due to the nature value of the path margins.

[bassanclan]

Google earth historical satellite images may help identify the shed etc?

[Gardenlover]

21 hours ago, joe90 said:

@Gardenlover do your neighbours want to do the same? If they do you can help one another with statements of use.

Yes. One neighbour is in the same position. Since we both have to pay £462 each for and LDC. How about one of us applies for both areas out the back. So behind each garden. Would cut cost in half....? 

[ProDave]

9 minutes ago, Gardenlover said:

Yes. One neighbour is in the same position. Since we both have to pay £462 each for and LDC. How about one of us applies for both areas out the back. So behind each garden. Would cut cost in half....? 

That should be possible.  The LDC does not define ownership.  In my very first house I wanted to move the fence, I ended up doing a joint application with some of the neighbours under one application for one fee, and then 4 of us all moved our fences together.