4 year deemed consent rule

[Hoges]

Hi, a bit stressed and very confused and wondered if anyone can advise me. I purchased a house around 12 years ago that had a small first floor terrace (decking ) on top of a downstairs bathroom. Both the house I purchased and next door house (terraced) had the same deck. After years of repair and patching, the deck had become dangerous and very rotten in places so we decided to take the frame off and rebuild most of it. There are some original bits, but a lot was beyond saving. I assume someone has complained and we received a letter from an enforcement officer to remove the deck. I sent them photos of the deck from when I purchased the house, the original sales details from the estate agent describing the deck when we purchased and some photos of the rot that forced the repair. After around a month ( today) I received a letter again asking us to remove the structure within 3 weeks. The letter said “ I can confirm that the roof  terrace erected does not benefit from the 4 year ‘deemed consent’ rule because the structure has been significantly replaced” I have googled ‘deemed consent’ and 4 year rule and can’t find the regulations that determine this. Can anyone help? Do you know if we can appeal the decision (tried calling but voice mailbox full)

[JFDIY]

Surely as a last resort ,a retrospective planning application would tidy this up, almost laughable that it's been there 12yrs now it's a problem, do your repairs take it significantly away from the previous structure?

[Mr Punter]

Raised platforms are often an issue if they overlook other private gardens.  Had you repaired this in stages, you may have been OK.  If they issue an enforcement notice you can appeal it.

[Onoff]

I've heard it said in the past that if you flatten say an existing outbuilding you can be prevented from rebuilding. Better to do it in stages.

[Hoges]

Many thanks. There is no significant difference between the old deck and new deck. It has probably been there around 20 years as it was old when I purchased the house. As it is a property I rent out, the repairs were essential to ensure my tenants safety. Most of the original deck was removed to treat the roof underneath, but at no point was there nothing left and many components were re-used. Is planning an easy process? Where do I find out what to do and costs involved. What grounds for appeal might I have and is this something I can do myself?

many many thanks for your help so far..the whole thing seems silly, but it is causing me a lot of anxiety.

[joe90]

Have next door been told the same?. I once replaced a staircase in an old cottage but it was steeper than new regs so I retained one small piece of wood and told the BI I had repaired it not replaced it and he just laughed at me but let me keep it. 

[IanR]

The deemed consent relates to a continuing breach of planning that has lasted continuously for 4 years (or for 10 years if it is a breach of a planning condition - there are other caveats)

 

I believe the Enforcement Officer has taken the position that once the deck was removed, the breach was no longer on going, so the 4 year clock restarts, and deemed planning no longer applies.

 

I've no idea if case law exists in this particular situation, but for others there is a consensus that a 3 month break in the continuity of the breach does not effect the breach, ie. the breach can stop for 3 months, if there is a genuine reason, such as renovation, and it not effect the deemed consent.

 

If the terrace was unusable for less than 3 months, or for not much more, then I would test the Enforcement Officer's position by applying for a Certificate of Lawful Existing Use and Development (CLEUD)

 

You can check with the LPA how much they charge for a CLEUD application.

 

Retrospective Planning makes a subjective decision on whether a planning application would be granted today for the structure that has been there for some time, but without considering deemed consent. A CLEUD is less subjective, if you can prove a continuous and ongoing breach (in the balance of probability), they have to provide a Certificate that makes it lawful for that breach to continue.

 

You can do the CLEUD yourself, but if it's important to you I'd suggest using a Planning Consultant with relevant experience, to put the CLEUD application together. It is easy to share info with the LPA that they can then use as a reason to not grant the CLEUD, if you don't know all the rules.

 

An application of a CLEUD would stop the current Enforcement action, until the CLEUD was decided.

Edited May 26, 2021 by IanR

[Temp]

+1

 

A CLEUD has to be considered on the facts and the law where as a Retrospective Planning Application would be considered on more subjective matters, such as does it overlook the neighbours. So definitely a CLEUD first.

 

 

 

[Hoges]

On 26/05/2021 at 16:43, IanR said:

The deemed consent relates to a continuing breach of planning that has lasted continuously for 4 years (or for 10 years if it is a breach of a planning condition - there are other caveats)

 

I believe the Enforcement Officer has taken the position that once the deck was removed, the breach was no longer on going, so the 4 year clock restarts, and deemed planning no longer applies.

 

I've no idea if case law exists in this particular situation, but for others there is a consensus that a 3 month break in the continuity of the breach does not effect the breach, ie. the breach can stop for 3 months, if there is a genuine reason, such as renovation, and it not effect the deemed consent.

 

If the terrace was unusable for less than 3 months, or for not much more, then I would test the Enforcement Officer's position by applying for a Certificate of Lawful Existing Use and Development (CLEUD)

 

You can check with the LPA how much they charge for a CLEUD application.

 

Retrospective Planning makes a subjective decision on whether a planning application would be granted today for the structure that has been there for some time, but without considering deemed consent. A CLEUD is less subjective, if you can prove a continuous and ongoing breach (in the balance of probability), they have to provide a Certificate that makes it lawful for that breach to continue.

 

You can do the CLEUD yourself, but if it's important to you I'd suggest using a Planning Consultant with relevant experience, to put the CLEUD application together. It is easy to share info with the LPA that they can then use as a reason to not grant the CLEUD, if you don't know all the rules.

 

An application of a CLEUD would stop the current Enforcement action, until the CLEUD was decided.

Thanks for this. The terrace was unusable for only a very short period (a week or so). Spoke to planning today and they said that as it was mostly removed, even though it was to make the base safe for my tenant, they consider the change to be significant and the clock restarts. Is there anywhere I can read information/rules on the 3 month break in the continuity of the breach consensus that you mentioned?  Thanks again 

[Temp]

Google found this...

http://planninglawblog.blogspot.com/2014/01/breaches-of-planning-control-need-for_28.html

 

Extract...

 

Quote

 

What emerges from the decided cases discussed in earlier parts of this article is that, following the relevant period of continuous breach so as to achieve immunity from enforcement (whereby the change of use becomes lawful), uninterrupted continuity of the use is not thereafter necessary (as discussed above, see Panton), but that the use must be current at the time of making an application under section 191(1)(a)
 

 

 

Quote

 

In accordance with the rule in Panton it is entirely possible that, following lawfulness having been achieved by continuous use for 4 or 10 years beginning with the date of the breach, there may then (quite legitimately) have been some subsequent interruption in the use which is of no legal effect in terms of the lawfulness of the use. These points clearly emerge from the judgments cited in the course of this article.
 

 

 

Quote

... any subsequent discontinuity in the use will not have affected the position, provided that the use is actually current at the time of the LDC application under section 191(1)(a). For all these reasons, in the case I have imagined an LDC would undoubtedly have to be issued.

 

 

 

 

I believe the reference to Panton refers to..

 

"Panton and Farmer v Secretary of State for the Environment, Transport and the regions and Vale of White Horse DC [1999] JPL 461"

 

I haven't found that case in full but there are lots of references on the web that suggest it helps your case. These references I found suggest that only abandonment resets the 4 year clock not a temporary interruption..

 

Ideally you would hire a planning consultant who could quote the relevant sections from Panton and and subsequent cases to the planning officer for you. If you dont want to pay someone to do that I suggest you ask the planning officer to comment on ..

 

"Panton and Farmer v Secretary of State for the Environment, Transport and the regions and Vale of White Horse DC [1999] JPL 461" which you believe establishes that only abandonment not temporary interruption resets the four year period for enforcement".

 

You could also send him a copy of Martin Goodall's article.

 

He may reply with case law of his own to contradict this but worth a shot.

Edited May 27, 2021 by Temp

[Temp]

I also found this which looks like an old training manual for Planning Inspectors..

 

https://www.whatdotheyknow.com/request/550873/response/1315767/attach/html/2/Consolidated Inspector Training Manual Pt2.pdf.html

 

This is an HTML version of an attachment to the Freedom of Information request 'Copy of Latest Inspector Training Manual'.

 

And from the pdf...

 

Panton  &  Farmer  v  SSETR  &  Vale  of  White  Horse  DC  [1999]  JPL  461 Lawful  use  rights  could  only  be  lost by evidence  of  abandonment;  by  the  formation  of  a new planning  unit;  or  by  being  superseded  by  a further  change  of  use.  A use  which was merely  dormant  or  inactive  could  still  be  considered  as  ‘existing’,  so  long  as  it  had already  become  lawful  and  not been  extinguished  in  one  of  those  three  ways.   

 

 

[IanR]

5 hours ago, Hoges said:

 Is there anywhere I can read information/rules on the 3 month break in the continuity of the breach consensus that you mentioned?  Thanks again 

 

As per Temp's link, the Martin Goodall planning blog is a great reference, and is probably where I've picked up the allowable break in breech, if for good reason, and not abandonment.

 

In a quick look just now, I can't find the exact blog.

 

As a reference for how an planning inspectorate puts the argument together for an Appeal that has been allowed when the LPA refused a CLEUD due to a break in continuity of Breach:

 

https://planningjungle.com/wp-content/uploads/2196915-Appeal-Decision-Notice.pdf

[Hoges]

Temp and Ian, many thanks for the information. I will have a good read of the links. I spoke to planning yesterday to see if I could appeal, but they have said I can’t until the enforcement notice is issued. Thy said I could apply for planning permission, but they were not inviting me to apply?. They didn’t mention the CLEUD, but I asked them about it and they said I could apply via their website providing the application was made before the three week date they gave on their letter to remove the deck.

[SuperPav]

Above advice is good and you would probably win at appeal if suitably constructed.

 

The other thing to challenge here is what does the enforcement notice relate to? Use as a terrace, or the actual structure, and if so which elements? We'd need to see the details of what's there and what was originally constructed, but I would be willing to challenge this with them via appeal on the following grounds: If it's just a flat roof that is used as a terrace, then the fact that it was being repaired need not mean there ever was a break in its use a terrace.

 

They presumably haven't got an issue with the actual bathroom and flat roof, so which element are they asking to be taken down? What do they expect to see remaining?

 

I would personally stick a CLEUD (and encourage your neighbour to do the same unless they're the ones who complained?!) and appeal the enforcement simultaneously as both should really be done before the enforcement notice takes effect.

[Hoges]

On 29/05/2021 at 12:33, SuperPav said:

Above advice is good and you would probably win at appeal if suitably constructed.

 

The other thing to challenge here is what does the enforcement notice relate to? Use as a terrace, or the actual structure, and if so which elements? We'd need to see the details of what's there and what was originally constructed, but I would be willing to challenge this with them via appeal on the following grounds: If it's just a flat roof that is used as a terrace, then the fact that it was being repaired need not mean there ever was a break in its use a terrace.

 

They presumably haven't got an issue with the actual bathroom and flat roof, so which element are they asking to be taken down? What do they expect to see remaining?

 

I would personally stick a CLEUD (and encourage your neighbour to do the same unless they're the ones who complained?!) and appeal the enforcement simultaneously as both should really be done before the enforcement notice takes effect.

Thanks for this. The original letter referred to "the structure being built on the flat roof" After I had spoken to them and mentioned that it had been there circa 20 years, sent pictures of the deck from when I had purchased the property 12 years ago together with the sales details mentioning the deck, they replied with the following letter:

"Thank you for your emails and phone calls regarding the above property. I sincerely apologise for the delay in contacting you.

Having had a discussion with the Planning Services Manager, I can confirm that the roof terrace erected does not benefit from the 4 year 'deemed consent' rule because the structure has been significantly replaced. I therefore ask that the roof terrace is removed within 3 weeks of the date of this letter.

As stated in previous correspondence, we are not inviting a planning application for this structure as we deem it unlikely consent would be given in its current form. However, you are still entitled to submit a planning application which would be assessed without prejudice. If this application was then refused, you would have a right of appeal to the Planning Inspectorate."

The neighbour, removed their deck a couple of years ago as it was too costly to repair and they were intending to rent out the property. I contacted them and they are in full support of my deck and had intended to reinstate their deck when they moved back to live in the house. I don't know who complained, but it is likely to be the tenant in the house next door.

I spoke to the enforcement officer and she said I could not appeal until they issued the enforcement notice. She has been on holiday since...

[Temp]

It will be cheaper for you if you can head off enforcement. If you haven't already done do I would write to them ASAP asking them if they have considered the judgement in:

 

"Panton and Farmer v Secretary of State for the Environment, Transport and the regions and Vale of White Horse DC [1999] JPL 461"

 

Which you believe establishes that only abandonment, not temporary interruption, resets the four year period for enforcement. Point out that use of the structure was never abandoned.

 

If you have already done that I'd apply for the certificate citing the same case.

 

 

 

[Hoges]

On 08/06/2021 at 18:10, Temp said:

It will be cheaper for you if you can head off enforcement. If you haven't already done do I would write to them ASAP asking them if they have considered the judgement in:

 

"Panton and Farmer v Secretary of State for the Environment, Transport and the regions and Vale of White Horse DC [1999] JPL 461"

 

Which you believe establishes that only abandonment, not temporary interruption, resets the four year period for enforcement. Point out that use of the structure was never abandoned.

 

If you have already done that I'd apply for the certificate citing the same case.

 

 

 

I have called every day, with no reply from the enforcement officer, left voice mails, sent emails .....nothing! The 3 week period is up on 16th June, so starting to panic.

[IanR]

2 hours ago, Hoges said:

I have called every day, with no reply from the enforcement officer, left voice mails, sent emails .....nothing! The 3 week period is up on 16th June, so starting to panic.

 

This remains your option:

 

On 26/05/2021 at 16:43, IanR said:

You can do the CLEUD yourself, but if it's important to you I'd suggest using a Planning Consultant with relevant experience, to put the CLEUD application together. It is easy to share info with the LPA that they can then use as a reason to not grant the CLEUD, if you don't know all the rules.

 

An application of a CLEUD would stop the current Enforcement action, until the CLEUD was decided.

 

My guess is that the enforcement officer has no more to gain from discussing it further with you. They don't see themselves as an advice service, and they've communicated what they needed to have done so can claim to have engaged with you.

 

You now need to submit an application for a Certificate of Lawful Existing Use and Development, providing evidence of how long the structure has been in place and in Use and stating that it recently underwent maintenance, for a very short period that could not be considered as abandonment.

 

The enforcement officer is expecting to run the clock down, so that you then have to remove the structure. It's now for you to take action to stop the clock.

Edited June 12, 2021 by IanR

[Temp]

+1

 

Guide here.

https://www.planningportal.co.uk/info/200187/your_responsibilities/37/planning_permission/3

 

See also the links on the bottom left for other things you will need to include (eg plans).

 

There are plenty of other guides on the web.

 

If you miss the deadline and they initiate enforcement then appeal it on the same grounds. 

 

Planning Officers in many areas are enormously overloaded and some don't even work full time so contacting them by phone can be nearly impossible. 

[Hoges]

You mentioned I could do the CLUED myself or find a planning consultant with relevant experience. How do I go about finding someone with the right experience?  Having little or no experience of planning, not really any idea where to look. I had expected that I could have a conversation with the enforcement officer but after lots of emails, dozens of voicemails, they have not called me back so as you suggests they may just be trying to run down the clock, which is not something I expected to experience.

Thanks everyone for help so far, just didn't expect them to completely blank me.

On 12/06/2021 at 12:43, IanR said:

 

This remains your option:

 

 

My guess is that the enforcement officer has no more to gain from discussing it further with you. They don't see themselves as an advice service, and they've communicated what they needed to have done so can claim to have engaged with you.

 

You now need to submit an application for a Certificate of Lawful Existing Use and Development, providing evidence of how long the structure has been in place and in Use and stating that it recently underwent maintenance, for a very short period that could not be considered as abandonment.

 

The enforcement officer is expecting to run the clock down, so that you then have to remove the structure. It's now for you to take action to stop the clock.

 

On 26/05/2021 at 16:43, IanR said:

The deemed consent relates to a continuing breach of planning that has lasted continuously for 4 years (or for 10 years if it is a breach of a planning condition - there are other caveats)

 

I believe the Enforcement Officer has taken the position that once the deck was removed, the breach was no longer on going, so the 4 year clock restarts, and deemed planning no longer applies.

 

I've no idea if case law exists in this particular situation, but for others there is a consensus that a 3 month break in the continuity of the breach does not effect the breach, ie. the breach can stop for 3 months, if there is a genuine reason, such as renovation, and it not effect the deemed consent.

 

If the terrace was unusable for less than 3 months, or for not much more, then I would test the Enforcement Officer's position by applying for a Certificate of Lawful Existing Use and Development (CLEUD)

 

You can check with the LPA how much they charge for a CLEUD application.

 

Retrospective Planning makes a subjective decision on whether a planning application would be granted today for the structure that has been there for some time, but without considering deemed consent. A CLEUD is less subjective, if you can prove a continuous and ongoing breach (in the balance of probability), they have to provide a Certificate that makes it lawful for that breach to continue.

 

You can do the CLEUD yourself, but if it's important to you I'd suggest using a Planning Consultant with relevant experience, to put the CLEUD application together. It is easy to share info with the LPA that they can then use as a reason to not grant the CLEUD, if you don't know all the rules.

 

An application of a CLEUD would stop the current Enforcement action, until the CLEUD was decided.

 

[IanR]

24 minutes ago, Hoges said:

You mentioned I could do the CLUED myself or find a planning consultant with relevant experience. How do I go about finding someone with the right experience?  

 

I just googled "Planning Consultant lawful existing use + my local city/town" and about 10 local planning consultants came up, it's then a case of phoning and getting a feel if they are familiar with CLEUD applications. Most should be.

 

However, nothing seems to move very quickly with submitting planning applications, so I feel you may have missed the opportunity to get support from a professional.

 

You have nothing to loose then to submit it yourself. On the same google search above, also came up the page to submit the application yourself. My LPA gives a brief description of what is required:

 

I would expect yours to be similar.

You can download a copy of the OS at the correct scale for the Block Plan, and Site plan, and then just manually sketch over the top the detail of the balcony.

Then just write a short, precise explanation with evidence to support the time-frame the balcony/terrace has been in place and in use. Mention the recent maintenance and how short a time it was unusable and state that its use was not abandoned, evidenced by you doing maintenance on it.
 

Edited June 14, 2021 by IanR

[Temp]

1 hour ago, Hoges said:

You mentioned I could do the CLUED myself or find a planning consultant with relevant experience. How do I go about finding someone with the right experience?

 

"Planning Consultants" in Yellow pages worked for us 13 years ago. Just ring up a few and ask if they can handle a (possibly) urgent CLUED.

[Hoges]

Well I have applied for a LDC...thanks for your help, fingers crossed.

[IanR]

1 hour ago, Hoges said:

Well I have applied for a LDC...thanks for your help, fingers crossed.

 

Good Luck!