Existing Outbuilding

December 1, 2017 by Timothy Staddon in forum Planning Forum

#547 Timothy Staddon, 1 December 2017, 21:18


I bought a house after seeking information from the council about a single storey outbuilding. This is a concrete hobby room / studio that is built at the back of a plot on an unadopted road. In front of it is a free standing garage built with PP in the 70s, and behind it is a hedger (the other side of which is a school playing field). The neighbours are aware it exists and aren't bothered by it at all. It's not in a conservation area, it's not built in the front garden, it doesn't back onto any road, it isn't too large for the curtilage.

It was built in 2011-12 without PP, but no paperwork existed for it in the pack I got from the vendor, and its precise age could not be verified. By the time the house was on the market, the land between the garage and the outbuilding was so overgrown you couldn't even see the outbuilding. So I queried its status with the vendor, the conveyancy teams and the council, obviously not wanting to be stung by an enforcement order.

Happily I was advised there were no complaints, compliance orders, enforcement notices, prior applications etc. Also, the council said that if a PROBABLE age can be established as over 4 years old, the 4 year rule applies. (So, I surmised, there's no need to get a precise construction date for it, all I had to do to be in the clear was provide enough information to assure the council it's between 4 and 10 years old.)

Anyway: I did all that, and after hearing nothing for 16 months, I submitted an application for a certificate of existing lawful use purely to allow me to refurbish this outbuilding and put it on the site plans properly...

And the council's legal adviser has just rejected the application on the basis I didn't prove beyond all doubt that the building is not under 4 years old as of September this year.

The council has had about 20 months to investigate if they thought there was anything suss about this outbuilding, and they haven't investigated. In fact, by law they (and the vendor) should've approached the previous owner if they felt there was any question over its legality - and they didn't do it.

In support of my application, I obtained aerial shots from Google Earth (time stamped) but they only confirmed it was built between 2010 and 2016. Written statement from the previous owner indicates it was used between 2011 and 2013. I found proof from the manufacturers of its doors that they were manufactured before 2010. There is visible evidence, seen by two council inspectors, inside the building, that its previous owner used it as a hobbyroom/office (not substantially different to my planned use for it). Both council visits have failed to flag up a compelling reason to reject the application. The neighbours, and their friends, all say it's probably 5-6 years old...

Fair enough, it's not exactly conclusive! But, if the council thinks this is "less than probable", you'd expect them to at least be able to point to an element of the claim that's factually incorrect or dubious. But they haven't been able to do this.

I've reviewed https://www.gov.uk/guidance/lawful-development-certificates and I'm convinced it says that in a situation like this the council can't just turn my application down without finding some evidence that contradicts my own findings or calls the building's legality into question:

1. if a local planning authority has no evidence itself, nor any from others, to contradict or otherwise make the applicant’s version of events less than probable, there is no good reason to refuse the application

2. If a local planning authority obtains evidence, this needs to be shared with the applicant who needs to have the opportunity to comment on it and possibly produce counter-evidence.

3. Where an application has been made under section 191, the statement in a lawful development certificate of what is lawful relates only to the state of affairs on the land at the date of the
certificate application.

Am I correct?

Or can a council arbitrarily throw a certificate application out despite a complete lack of any factual evidence that the information in the application is wrong, solely on the basis that there is no paperwork that has a precise construction date on it?

Surely the whole point of "balance of probability" in the rules exists for the resolution of cases where the lack of an official piece of paper for a >4 year old building doesn't mean it's being used unlawfully?

#553 John Williams (602), 22 January 2018, 07:19

Hi Timothy,

I don't wish to rain on your parade, but ...

The 4-year rule prevents the planners from telling you to demolish your building.

But there is also a 10-year rule, which covers the USE of the building. This means they can prevent you using the building, for ANYTHING, unless you can prove it has been used for THAT purpose, continuously for 10 consecutive years.

I'm on your side, but I can't think of a way round this problem, apart from agriculture (chickens, goats, mushrooms), and even those rules may have changed since I kept a Shire mare and foal in the coal cellar behind my house, many years ago ... not as bad as it sounds, and my neighbours loved them.

If push comes to shove, you could agree to demolishing the shed, but tell the Planners that you will invoke your PD rights to use the land (how big is it?) for clay pigeon shooting, motor racing, or open air market, for 14 days each year. My knowledge may be out of date, and I don't recommend this action anyway. Their lawyers are bigger than yours.

Apply for retrospective PP, and keep your fingers crossed. If refused, I believe there is no charge to appeal.
If you do appeal, the council will have to pay for their legal team to prepare their case. You can simply withdraw at the last minute.

But be aware, I don't really know what I'm talking about. ;-)


#1164 Kel Benso, 13 December 2021, 03:14

Outdoor shed are very important in every house, either as store, car park, office or boys quarter. I feel it's important every house should have. There are more than ones now https://www.urban-sheds.com/

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