Establishing the Lawfulness of a Dwelling

19th March 2020

This article draws on Bell Cornwell’s recent experience in securing lawful development certificates to establish the lawfulness of the creation of residential units.

Significant evidence is usually submitted with an application for a certificate of lawfulness to show that a site has been in continuous use for a minimum of four years. This can include statutory declarations from tenants or building managers, tenancy agreements and council tax records for the period in question.

With a well-presented submission, illustrating continuous residential use, the Council are able to issue the certificate without requiring additional evidence. However, some cautious Councils 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 spite of having all of the above evidence, other Councils have insisted on requiring utility bills covering the whole 4-year period to show evidence of occupation.

In turn, this experience has highlighted to Bell Cornwell that Councils are often asking for evidence for continuous occupation of the property, not continuous use. This position appears to be common practice amongst Councils, but this is a misinterpretation of the law.

The assessment of applications for a certificate of lawfulness for an existing use should be based solely on the use of a building, not its occupation. The relevant case law sets out this position, Gravesham BC v Secretary of State for Environment (1984).

The Gravesham case indirectly reinforces the position for the assessment of use over occupation, highlighting a factual approach:

 “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.

This reaffirms that confirming a building’s lawful use can be a complicated issue. Bell Cornwell have extensive experience in securing lawful development certificates in such circumstances. Therefore, we are well equipped to help those who are looking to go through a similar process.

It should be noted that the circumstances in this article relate only to establishing the lawfulness of dwellings. Different rules are applicable to establishing the lawfulness of other types of use or development, which we can also assist with.

For more information on securing the lawful use of a building, please contact us.

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