Establishing the Lawfulness of a Dwelling

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Establishing the Lawfulness of a Dwelling

Planner Insight
Policy & Legislation
Author Karen Tipper
Senior Associate
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Where there is no formal planning permission or where a condition of planning permission has been breached, a Lawful Development Certificate (LDC) confirms that the use of a building or land is lawful. They are used for all sorts of sites but here we focus on instances where residential units have been created.

Substantial evidence is submitted with any LDC application to prove that a site has been in continuous use for a minimum of four years. The evidence can include statutory declarations from tenants or building managers, tenancy agreements and council tax records for the period in question.

A well-presented submission is usually enough for the Council to issue the certificate without further evidence, however some will insist on additional information to reassure them. For example, we have been asked to provide evidence from the construction contractor to show when the dwellings were first formed. In other instances, the Council has insisted on utility bills covering the whole four-year period in order to prove occupation.

Demanding excessive evidence of continuous occupation of the property appears to be common practice amongst Councils, but this is a misinterpretation of the law. The assessment of an existing use should be based solely on the use of a building, not its occupation.

The Gravesham BC v Secretary of State for Environment (1984) case law indirectly reinforces the position when assessing use over occupation:

“If a house is empty pending its sale or because its owner cannot, or does not want, to let it, it is still a dwelling-house. So, emptiness is not fatal”; and “a capacity to provide permanent accommodation is the essential character of a dwelling-house”.

Therefore, in establishing lawful use, assessment must be based on the use and capacity to provide that use, not its occupation.

Establishing a building’s lawful use can be a complicated issue but Bell Cornwell have extensive experience in securing Lawful Development Certificates in such circumstances. It is worth reiterating that this article only relates to establishing the lawfulness of dwellings – different rules apply for other types of use or development, which we can also assist with.

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