Article first appeared in July 2014 NAPE newsletter.
Rogue landlords of outbuildings/beds in sheds know their way around planning laws all too well. One of the more popular tricks of the trade appears to be to first construct a new building under PD, then add a kitchen and bathroom later- on the basis that internal modifications is not development and therefore does not require planning permission. Even worse, rogue landlords know now to tell a Council that they originally built a structure under PD and then later installed internal facilities. In the vast majority of cases, LPAs will have no evidence to refute this, and will therefore not take action against the operational development.
The outbuilding is then ready to be rented out at a going rate of c. £750 pcm in outer London. In most cases, these outbuildings are highly unsuitable buildings inappropriate for human habitation due to insufficient light, internal space, external amenity space, ceiling height, heating, insulation, impact of amenity for occupiers of the outbuilding and all neighbours, detrimental impact on the character of the area, etc. etc.
Where the structure itself is more than 4 years old, or where internal facilities were only installed after the construction of the building, i.e. a conversion, the Council’s only recourse under planning laws, is to investigate a material change of use breach.
Finding evidence of a material change of use is more difficult. Often, access will be refused, and once the Council gives 24 hours’ notice, occupants are hurriedly vacated or the Council is told that the outbuilding is lived in by family members “ancillary to the main house”. And further, the cases in which an Enforcement Notice for a material change of use can reasonably require demolition of an outbuilding, are limited. More often, a Council can at best require removal of internal facilities, making it very difficult to police future breaches.
This is where a recent Brent appeal decision is very interesting.
The facts of the case, are:
•In 2007 the Council granted a Lawful Development Certificate (LDC) for the erection of a single storey rear outbuilding. According to the appellant this building was completed by September 2007.
•When the Council investigated the building in 2010 it had a kitchen and a partition wall had been erected to create a bedroom. The owner stated that the kitchen and the wall were installed in 2010 and the building was used by his son while studying at University. Nevertheless, in order to avoid enforcement action potentially requiring the building to be demolished the owner agreed to remove the kitchen and the partition wall, which was done.
•When the Council returned to investigate the building again in 2013 it was found that a fully fitted kitchen had been put back, possibly the same units, there was a gas hob, a fridge, a bathroom with a shower, sink and toilet, a washing machine, a bedroom and a lounge.
•Brent Council issued an Enforcement Notice for the operational development in the erection of a dwelling, requiring demolition of the outbuilding, more than 4 years after the construction of the building.
The appellant appealed on grounds (c) and (d) but the Inspector considered the appeal on grounds (b), (c) and (d).
On the ground (b), the Inspector said a case had not been made out that a dwelling was not constructed. He felt that the evidence pointed very strongly towards a deliberate attempt to deceive the Council and he severely discredited the appellant’s evidence. It should also be noted that the appellant had not submitted a proof of evidence and did not attend the inquiry to give evidence.
This is the very interesting part: although the appellant had said in his appeal that the internal facilities were only installed a few years after the construction of the PD structure, and the Council could not offer evidence to the contrary, the appellant’s evidence was so heavily discredited that the Inspector felt the appellant had not discharged his burden of proof and as a result, the Inspector dismissed this ground of appeal.
The Inspector found that the erection of a dwelling is not permitted development and said a ground (c) appeal would have failed anyway.
On the ground (d) appeal, the Inspector said:
“The building might have been there for over four years and ordinarily that could make it too late to take enforcement action. However, there was positive concealment aimed at preventing discovery of the dwelling before the relevant time limit had elapsed. The attempt to profit directly from that deception means that the statutory immunity from enforcement action no longer applies.”
The ground (d) appeal therefore failed, presumably applying the Connor principle as confirmed by Welwyn Hatfield Council v SSCLG  EWCA Civ 26 and R. (Fidler) v SSCLG  EWCA Civ 1159.
So, not only did the Inspector disregard the appellant’s attempts to circumvent the planning system, but he also applied the principle that a landlord should not benefit from the 4-year rule when he had positively concealed the planning breach.
This welcome decision does not in any way simplify the ever increasingly complex minefield of outbuildings/beds in sheds planning enforcement, but it inches forwards to better outcomes against rogue landlords.
See the decision