10 Year Rule and immunity under the 4 year rule.

[ToughButterCup]

I’d be grateful if you could check my thinking please. 

 

In short, I think our Local Authority Head of Planning has missed a key point in a Decision in an Appeal Against Enforcement. It is his contention that the dwelling house built inside  a caravan (yes, you read that correctly) is immune from further Enforcement under the Four Year Rule (Full details here). It is my contention that,  under the 10 Year Rule ,  the Decision handed down by the Inspector shows that the dwelling house is not immune from Enforcement.

This post is not about  a neighbour dispute. It is about our LPA’s apparent unwillingness to follow through in a case which involves unlawful building and a persistent and determined attempt to deceive everyone involved. 

 

Alleged Immunity from further Enforcment.

I wrote to our Councillor about the matter. Here’s the HoP’s response via email to me. Referring to Appeal Decision  Ref  APP/U2370/C/19/3241296  (paragraph 32) he writes;

 

‘... With regard to the caravan and the building works undertaken an enforcement notice was served in October 2019. The notice was appealed (in 2020) and the appeal was upheld in favour of the appellant with the Inspector stating that the works had existed for a period of 4 years and had the effect of turning the caravan into a building which could lawfully remain on the site. The council cannot therefore use enforcement powers to seek its removal. ...’

 

Clear as day: the LPA are saying they can’t deal with the matter.

 

Later in the same Appeal Decision (para 38) the Inspector writes

 

‘... It may be argued that upon completion of all the facilities within the structure in February 2015 the building’s residential use began straight away thereafter. This would imply that this was the first use of the building and there was no change of use to a dwellinghouse. This in turn implies a breach under section 171B(3) and case law has established that if a dwellinghouse is erected unlawfully and used as a dwellinghouse from the outset the unlawful use can still properly be the subject of enforcement action within ten years, even if the building itself, as a structure, becomes immune from enforcement action after four years. ...’

 

Clear as day: the Inspector is saying the LPA can deal with the matter.   

 

Or have I missed something?  I really hope I have missed something because if I haven't then something serious could be amiss.

 

The full Appeal Decision Notice can be downloaded here from the Planning Inspectorate. Paragraphs 32 and 38 are the key ones.

 

 

https://acp.planninginspectorate.gov.uk/ViewCase.aspx?Caseid=3241296&CoID=1134608

[ProDave]

My reading is the "dwelling" was deliberately hidden inside the caravan, so remains illegal.  Reference the guy that hid a house behind a stack of hay bales, then after he thought the time was up removed the bales.  It was ruled that because the dwelling had deliberately been hidden, the time limit for enforcement did not apply.

 

Someone will no doubt find a link to that ruling and that would be my argument for suggesting the appeal decision in this case is wrong, that the "dwelling" had deliberately been hidden.

[IanR]

This is what I was getting at back on this thread:

 

 

I believe that yes, that LPA could challenge the C3 status of the building, but not the building itself.

 

"IF" the LPA has evidence that the building was first Used as residential, then it has up to 10 years to take enforcement, so can still be enforced against, but if the Owner can "say" it was used for a different Use initially, which is immune from enforcement after 4 years, and was then lived in, so went through a Change of Use, again only enforceable for 4 years, then it is now immune from enforcement. I don't believe the first Use has to run for the full 4 years, it just has to be Used for something other than Resi, before it was then used for residential.

 

Having lost an Appeal, I doubt the LPA have the appetite to challenge it, now the Owner has the necessary info from the Inspectorate on how they should set out their case.

 

[I haven't re-read the full Appeal (I did from the previous thread), so will re-read a little later when I have more time, to make sure I have my thoughts aligned with the Inspectorate's decision.]

Edited January 2, 2022 by IanR

[nod]

I’m really not sure if planners don’t understand there own rules Or They  just choose to add there own interpretation to the rules 

[joe90]

As you all know when I went to appeal the inspector informed the council they were not abiding by their own policies so yes I have no faith whatsoever in planners. The last paragraph is interesting  though, 

 

My conclusion is therefore not to correct the notice but only to quash the notice. The matter of the use of the building would need to be resolved, without prejudice, by a future enforcement notice, or by a lawful development certificate or planning application.

 

that’s an open door fir the council to challenge the “use” of the building, if they can be bothered ? 

Edited January 2, 2022 by joe90

[Temp]

2 hours ago, ToughButterCup said:

. It may be argued that upon completion of all the facilities within the structure in February 2015 the building’s residential use began straight away thereafter. This would imply that this was the first use of the building and there was no change of use to a dwellinghouse. This in turn implies a breach under section 171B(3) and case law has established that if a dwellinghouse is erected unlawfully and used as a dwellinghouse from the outset the unlawful use can still properly be the subject of enforcement action within ten years, even if the building itself, as a structure, becomes immune from enforcement action after four years. ...’

 

That's a bit optimistic in my opinion.

 

The general rules are they have 4 years to enforce most cases, that's B1, but 10 years for most change of use, that's B(3).

 

However B(2) introduces a special case in that when the change of use is to a single dwelling they only have 4 years. Perhaps to minimise hardship if someone is forced to demolish after such a long time?

 

The argument made by the planners above appears to be an attempt to use the exact wording of the legislation rather than its intent. They are trying to claim B(2) doesn't apply, not because it isnt a single dwelling, but because their might not have been a change of use. 

 

I'm afraid I very much doubt the planners would win that at appeal. 

 

Edited January 2, 2022 by Temp

[Onoff]

There's got to a market for caravan owners wanting to make work for their local councils...

 

Simply put curtains up, patterned on the window side to look like brick or blockwork.

[IanR]

4 hours ago, IanR said:

[I haven't re-read the full Appeal (I did from the previous thread), so will re-read a little later when I have more time, to make sure I have my thoughts aligned with the Inspectorate's decision.]

 

The Inspectorate kept the door more open for further enforcement than I remembered. He's not found in favour of the Appellant for anything other than the Council incorrectly enforcing against the caravan, rather than a building. Concealment is still on the table as the Council hadn't argued that, since their focus was the caravan which had not been concealed.

 

Having re-read the Appeal decision, I am surprised that the Council haven't restarted enforcement. The current situation is a no-man's land. The building has not been found to be lawful and the Inspectorate has implied in para 41. that the the Council have 10 years to enforce as the "appellant's suggestion ‘without planning permission, the erection of a building and material change of use of the building to a dwelling’ would not (based on the available evidence as concluded in paragraph 39) accurately reflect the breach of planning control."

 

The Inspectorate is saying that the Appellant has not provided sufficient evidence to define the planning breach to be within "Section 171B(2)" where it is immune from enforcement after only 4 years.

 

If the Council takes no further enforcement action, then the appellant just has to sit tight until 2025 and then apply for a CLEUD, for the 10 years he will then have lived in the property.

Edited January 2, 2022 by IanR

[Temp]

My earlier reply was before I'd read the Appeal Decision. Now that I have I partly dissagree with @IanR sorry.

 

Paragraph 32 makes clear the building itself is immune from enforcement...

 

Quote

 

32. I am satisfied that the appellant has demonstrated, on the balance of probabilities, that the building was substantially complete before 8 October 2015. It follows from my preceding conclusions that, as a building, it is immune from enforcement action under section 171B(1). I am also satisfied that the building amounts to the construction of a dwellinghouse as it has all the attributes and facilities required for day-to day private domestic existence6 and is immune from enforcement action under section 171B(1). 
 

 

 

Note that "immune from enforcement action under section 171B(1)" means its immune full stop. B(1) details grounds for immunity not grounds under which enforcement can be made.

 

Quote

(1)Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.

 

 

 

 

So the building itself is lawful.

 

He then goes on to consider if there has been an unlawful change of use to "Residential use". In para 38 an 39 he does suggest how the  planners could try and have another go at preventing Residential Use. This feels optimistic to me as I mentioned above but I note he does say there is case law to support it.

 

So I guess the question is.. Is it worth preventing Residential Use if the building itself is lawful?  And would it be easy for the owner to prove there had been change of use? 

 

Edited January 2, 2022 by Temp

[IanR]

2 hours ago, Temp said:

My earlier reply was before I'd read the Appeal Decision. Now that I have I partly dissagree with @IanR sorry.

 

Paragraph 32 makes clear the building itself is immune from enforcement...

 

Note that "immune from enforcement action under section 171B(1)" means its immune full stop. B(1) details grounds for immunity not grounds under which enforcement can be made.

 

My reading of Para 32 is that the statement is not absolute, but is in the context of this Appeal, where as noted in Para 42. "the Council have offered no evidence of positive deception in this case". Since they were incorrectly enforcing against the caravan, they wouldn't have initially considered concealment.

 

I believe the Council could enforce against the building under 171B(1), on the grounds of concealment. There is no immunity after 4 years if positive deception is proven.

[Temp]

I guess it depends how well or if it was really hidden. Sounds like you could see the blockwork under the caravan and through a window? 

 

Didn't they claim the blockwork was originally to repair heat/fire damage to the caravan rather than to turn it into a building? Would that stand up or is it obviously more than that?

[ToughButterCup]

17 hours ago, IanR said:

...

There is no immunity after 4 years if positive deception is proven.

and 

On 02/01/2022 at 10:42, ProDave said:

My reading is the "dwelling" was deliberately hidden inside the caravan, so remains illegal. ...

and 

12 hours ago, Temp said:

I guess it depends how well or if it was really hidden....

 

How well was this dwelling house hidden?

Before answering that question, I'd like to  I ask the commentatriat whether it would be unfair  on my part (to the property owner)  to publish photographic evidence here?   I appreciate that your replies will have no legal status beyond simple unqualified opinion. The images that I would publish are images of a 'dwelling house' that everyone 'sees' every day. Most people think and always have thought that they walk past a caravan.

 

I would like to publish that evidence here. The photos I have taken over the years have been from a public road that runs outside both our properties.  Other images material to the discussion have been taken from outer space (you can see the overflowing open cesspit on Google Earth [ not Google Maps] - and you can see how the caravan has been placed underneath a canpoy of trees - visible in winter , but not in summer) 

 

Perhaps the Moderation Team would like to offer a more focused opinion on the matter? I will of course abide by your decision. I'll PM a few of the team to canvas opinion.

[ProDave]

If this decision is allowed to stand, it will become case history, and sets a prescident that conceiling a house inside a caravan for 4 years can no longer be enforced

[saveasteading]

19 minutes ago, ProDave said:

concealing a house inside a caravan

If it is still on its tiny wheels then it is still a caravan, I would think.

If it has been taken off its wheels then it ceased to be a 'mobile home' and was in breach of planning.

 

I cant see any justification for allowing this other than a planning officer's whim, or oversight.

[ToughButterCup]

24 minutes ago, saveasteading said:

If it is still on its tiny wheels then it is still a caravan, I would think.

...

 

In the somehwat poetic words of the Inspector , the former caravan is '... on the balance of probabilities ... a dwelling house. '

[ProDave]

A "caravan" does not need to be on wheels to fit the legal definition of a caravan.  It must still be possible to move it and slinging it from a crane to pick it up is still a valid way to move it.

 

If the bricks used to build the "house" inside it extend down onto or into the ground under the caravan then it would not be possible to move it even with a crane so it would fail the definition of a "caravan"

[saveasteading]

On the balance of 2 tiny wheels and some bricks under the corners, it is a caravan avoiding needing permission to be a house.

Or to ProDave's info, slingable , but nearly always where a house would not be permitted.

Edited January 3, 2022 by saveasteading

[ProDave]

The question is HOW has it been built inside with bricks?

 

If it has literally been built with brick inside, apart from being surprised the chassis has not collapsed, it is still a caravan, albeit a very heavy caravan that would not be movable on it's wheels but still be movable with a large enough crane.

 

So over to @ToughButterCup to tell us exactly how has it been converted to a "dwellinhgouse"

[joe90]

it was mentioned that the fireplace was built down to the concrete floor and sections of chassis removed, therefore no longer a caravan. ?

[joe90]

I just re read it all again, despite some waffling techno legal stuff to me it seems obvious that they tried to conceal the build behind the caravan exterior. The last paragraph shows that the appeal is upheld in that the notice was flawed (council did not do their job properly) but.

 

“My conclusion is therefore not to correct the notice but only to quash the notice. The matter of the use of the building would need to be resolved, without prejudice, by a future enforcement notice, or by a lawful development certificate or planning application.”

 

so the council have to decide which of those three options they wish to enforce (I would pick a future enforcement done properly that no planning permission was sought fir a building).

 

I notice their “human rights” rubbish was thrown out.

Edited January 3, 2022 by joe90

[ToughButterCup]

In trying to form a judgment as to whether the 'dwelling house'  was built covertly, I attach the following annotated images.

 

A plan of the area showing the track which separates our properties, and the location of the caravan / dwelling house, tucked away under the trees.

 

A screenshot from Google Maps showing the area before the caravan was placed on the site under the trees. The walls were built as soon as the caravan was placed under the trees.

 

 

Heres an image from Google Earth Pro showing a  plan of the area in more detail.

Notice the unlawful open cesspit, it hasn't been emptied in 4  or 5 years: the foul liquor floods the field every time it rains. The shed to the LHS of the image is surrounded by foul drain overflow.

 

(The LPA are refusing to enforce the absence of  planning permission on the unlawful cesspit)

 

Further images to follow.

 

[ProDave]

Have you brought the cesspit and the pollution it is causing to the attention of building control and the Environment Agency?  Definitely the EA should be taking action.

[ToughButterCup]

This image illustrates the proximity of the dwelling house to the road: taken from the roadside.

 

[joe90]

It looks obvious to me that those walls are to hide what they we’re doing!. There was another thread here about someone being denied permission to built such walls, do they need permission?. Perhaps the environment agency would be interested in that open cess pit, when my sister had a broken foul drain  near her property that the council etc refused to get involved with the environment agency got involved and enforced the council/water co to fix it. 
 

edit, proDave beat me to it ?

Edited January 4, 2022 by joe90

[ToughButterCup]

This image illustrates the foundations created to support the building within. 

(To be uploaded when the server lets me in a few minutes: I just need to fool it into allowing me)

 

Here you are @ProDave.... 

Edited January 4, 2022 by ToughButterCup