Appeal 3268051

The appeal is allowed and attached to this decision is a certificate of lawful use or development describing the existing use which is considered to be lawful.

Because of the nature of this case, which essentially relies on documentary evidence, it was agreed with the parties that it was not necessary for me to conduct a site visit.

The appeal property is a two-storey, semi-detached house. In 2013, planning permission was granted to convert the side garage into a habitable room, involving a single storey front extension and front porch and a single storey rear extension (LPA ref: P13-00589PLA). This development at ground floor level to the side of the dwelling has been converted into a self-contained flat, with access via the communal front porch, which also serves the main dwelling. The appellant submits that the flat, which is sometimes referred to as no.[address], was substantially complete and in use as a self-contained dwelling by November 2014, and that it has been continuously used as such up to the date of the application in November 2020.

There is no dispute that the flat is physically separate from the main dwelling and has the required facilities for independent living – the submitted plan indicates a living/dining/kitchen area, a separate bedroom and a bathroom.

In a case of this type, the onus is on the appellant to demonstrate his case. Planning Practice Guidance indicates that, in the case of applications for existing use, 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, provided the applicant’s evidence alone is sufficiently precise and unambiguous to justify the grant of a certificate on the balance of probability.

The appellant has submitted 7 shorthold tenancy agreements, each for a period of 12 months. The first is dated 19 November 2014 and the last expired in November 2021. They cover a continuous and unbroken period save for a 2 month gap between October and December 2018. All of the agreements, bar 2, are signed. However, the 2 unsigned agreements in the name of [name] appear to be continuations of an initial tenancy agreement that he did sign.

The tenancy agreements are supported by an annual income and expenditure summary from [name] which shows continuous, regular payments of ‘rent received’ over the period in question. Although the payments are shown as relating generically to no. [site address] , and not explicitly to the flat in question, the amounts paid appear to correspond to those indicated in the tenancy agreements.

The submitted [name] statement shows regular income from November 2015 to June 2017 relating to [name] but with no reference to an address. [name] 2017, the payments are shown as relating to no [site address] . The final credit payment in the statement, of November 2020, is shown as having a different account title and applying to no 369A. Whilst there is some lack of clarity as to the address to which they relate, the payments appear to correspond to those in the tenancy agreements, less the indicated management fees.

The appellant has submitted an affidavit dated 18 November 2020, stating that the side extension has been used as a 1 bedroom flat, currently by [name] and [name], and by other tenants since 2014. This is corroborated by the affidavits of 2 near neighbours, [name] of no.[address] and [name] of no.[address].

The Council has not presented any evidence to contradict the appellant’s version of events – it has simply cast doubts as to the continuity of occupation. Whilst there appears to be a short gap in the tenancy agreements, as indicated in para 6 above, this appears to be minimal in the context of the 7 year period which they cover and I note that there was no significant gap in rental payments during that period. To my mind, the appellant’s evidence is sufficient to make it probable that the flat in question has been continuously occupied for more than 4 years prior to the date of the application.

I conclude that the Council’s refusal to grant a certificate of lawful use or development in respect of the ground floor flat to the side of no.369 was not well-founded and that the appeal should succeed. I will exercise the powers transferred to me under section 195(2) of the 1990 Act, as amended.