The alleged planning breach was the conversion of a property in the London Borough of Lambeth into two self-contained flats. Lambeth London Borough Council had issued an enforcement notice which requested the building was converted back into a single dwelling.
The house had been extended following planning approval in 2015. The extension was then converted to a self-contained, one-bedroom flat without planning permission, and was occupied by a family member. The flat was later let out to a couple and a managing agent was appointed.
To become immune from enforcement action, the breach of planning control to convert the extension to a self-contained flat must have occurred at least four years before the start of any enforcement. This is set out under Section 171B(2) of the Town and Country Planning Act (1990) which states where there has been a change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach. Uses are lawful at any time if no enforcement action may then be taken in respect of them because the time for enforcement action has expired.
Therefore, it was necessary to submit evidence that the change to a self-contained flat happened at least 4 years before the date of the enforcement action. The adequacy of the evidence must be determined on the balance of probabilities (rather than beyond all reasonable doubt). This has recently been demonstrated in appeal ref. APP/V1260/X/21/3285738, where the Planning Inspectorate awarded costs against a local planning authority for using the wrong test when considering an application for a lawful development certificate.
Various case law, whilst not directly related to town planning matters, makes clear the meaning of ‘balance of probabilities’ and the implications for decision making. For example, in RE H and Others (Minors)  AC 563, Lord Nicholls explained that:
"The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not."
As part of the appeal submission, WEA Planning provided a package of evidence including sworn statutory declarations made by the appellant and the appellant’s son, as well as further statements from a building maintenance firm, and the relevant Assured Shorthold Tenancy Agreements (AST).
The Planning Inspector recognised that the sworn evidence, plus the totality of the corroborative information, sets out how the flat was fitted out with all the necessary facilities for separate day-to-day private domestic existence, and that it was occupied and used as such. The inspector concluded “I find that the appellant’s evidence is sufficiently precise and unambiguous. I am satisfied that it has been shown, on the balance of probabilities, that a material change of use to two self-contained flats occurred four or more years prior to the date of the notice such that it is now too late to take enforcement action”. The council’s enforcement notice was therefore quashed, confirming the lawful status of the self-contained flat. This is a great outcome for the client and means they no longer need to worry about enforcement action. You can download the appeal decision below.
WEA Planning support many client appeals across London and the home counties. Applications can be unfairly refused by local authorities and appealing such a decision can be an option for clients who feel aggrieved by the outcome. If you are such a client, we would be pleased to advise you on your chances of success at appeal – feel free to get in touch and we will get back to you. You can also peruse our services page to see how WEA Planning can support your project.