Understanding the 4-Year Rule for Planning

Introduction

If you have built something or changed the use of a building, without the correct planning permission, you might have heard of something called the '4-year rule'. This is a crucial rule for property owners and developers, and if used correctly, can save you from potential enforcement action.

However, as part of wider changes to the planning system, the 4-year rule has in part been removed, with the 10-year rule applying in a greater number of cases. In this article, we will delve into the concept of the 4-year rule, explore scenarios where it applies, discuss the 10-year rule as an alternative, and highlight the evidence needed to convince the council.

If you need support for your planning case, contact us today.

Understanding the 4-Year Rule and the 10-year rule

Prior to April 2024, in accordance with planning law, where a breach of planning control (planning permissions or permitted development rights) consists of the carrying out without permission of building/other operations or the change of use to use as a single dwelling, no enforcement action may be taken after 4 years. In all other cases, where there has been a breach of planning control, such as breaching planning conditions, the 10-year rule would apply.

In April 2024, the Government amended the planning legislation to remove the 4-year rule, with the 10-year rule to apply in all cases. However, a transitional arrangement has been included in the legislation where if the works or change of use has been substantially completed by 25th April 2024, the 4-year rule will still apply.

It is important to remember that even if the works were completed by the 25th April 2024, your works will still be liable to enforcement action if they do not comply with the correct permissions or legislation. It just means that if your works were completed before the 25th April 2024 and were capable of using the 4-year rule, enforcement action cannot be taken after 25th April 2028 (e.g. 4-years). If your works are completed on or after the 26th April 2024, the enforceable period is extended until 25th April 2034 (e.g. 10 years).

How Do I Confirm My Development Is Lawful?

If you have passed the 4-year or 10-year timescale required by your type of development, and importantly have sufficient evidence to demonstrate that this is the case, you can apply for a Certificate of Lawfulness. If granted, the Certificate of Lawfulness will demonstrate that your development or works is lawful, and no enforcement action can be taken against it. This certification can be extremely valuable if you are looking to sell your property, as prospective purchasers do not want the worry of future planning battles!

A Certificate of Lawfulness application is not a planning application, and the Council will not take into account any planning considerations such as how close the building is to shops and schools, or if it is located in a sensitive area. Certificate of Lawfulness applications are judged on the evidence provided by the applicant at the time, and it is very important to provide this in a clear and convincing manner.

What Evidence Do I Need?

When making a Certificate of Lawfulness application, it is essential to provide sufficient evidence, and planning law is clear that the onus is on the applicant to provide the evidence. Below we provide an overview of some of the evidence that may be required to support your case.

1. A sworn statement or affidavit: These are documents which are statements from people who have direct knowledge of the facts. This could include the landowner/ landlord, tenants, staff, neighbours or builders. If your case rests on statements from yourself or others, they should always be signed in the correct form, which is often in the presence of a solicitor or Commissioner of Oaths.

   Where there is additional evidence backing up your case, letters or unsworn statements may be enough. However, in our opinion this creates unnecessary risk, as unsworn statements do not carry as much weight as sworn statements. Letters may be acceptable if they back up sworn statements from others (who have provided sworn statements), but statements which provide crucial evidence should always be sworn in the proper form.

   Whilst a sworn statement is a good start, you are likely to need further evidence to convince the council.

2. Council Tax or Business Rates Records: They will need to cover the relevant period and should be specifically addressed to the flat number, floor or building which is part of the application. For example, if you are looking to confirm what was originally an annexe to 1 High Street is lawfully a separate dwelling, the Council Tax records would need to show the building as a separate dwelling. Just providing Council Tax records for 1 High Street is unlikely to help your case.

3. Utility Bills: Utility bills can be vital to proving that the building has been used continuously for the 4 or 10 year period. Similar to the above, they will need to be clearly made out to the separate building (e.g. annexe).

4. Tenancy Agreements: If you have rented out the accommodation, copies of tenancy agreements can be useful. If relevant, it is important that they key information (such as names, dates and costs) on copies of the tenancy agreements and the sworn statements match each other.

5. Bank Statements: Bank statements can be used to demonstrate that rent has been paid or received for the property.

6. Building Control Records: Final Inspection Certificates from Building Control provide useful evidence that works were complete by a certain date.

7. Invoices: Copies of invoices relevant to the conversion works can also help your case.

8. Dated Photographs: To help your case, photographs need to be clearly dated.

Please note that this list is not exhaustive, and in certain circumstances, more or less information may be required. If the Council has any evidence to contradict yours, this

How will the Council assess my application?

The Council will review the evidence provided. Because Certificate of Lawfulness applications are not planning applications, they will not and cannot take into account more general planning considerations. The fact that a new dwelling is in the wrong place, or looks out of place is not a consideration. To quote one Planning Inspector - lawful can be awful.

Council's hold a lot of information on properties in their area, and will use this information to check your claims. For example, they will check with the Council Tax department and check historic planning records.

The legal test you need to demonstrate is that on the 'balance of probabilities' the building or land has been used for the relevant time period. While the onus is on the applicant to provide enough evidence, if the Council has no evidence to the contrary, they should approve the application. The balance of probabilities test is lower than the 'beyond reasonable doubt' used in the criminal system, but we always recommend providing as much evidence as you can.

What if my application is refused?

If your application for a Certificate of Lawfulness is refused, you have a right to appeal to the Planning Inspectorate.

Most Councils now provide an Officer's Report which gives the thinking behind planning decisions. These can give you valuable insight, and if for example, your application has been refused because your application did not have Sworn Statements, then it could show that an amended application could overcome their concerns.

Certificate of Lawfulness v Retrospective Applications

If you are looking to regularise your works, you have two options - submit a certificate of lawfulness application or submit a retrospective application.

In most cases, we recommend that clients submit a Certificate of Lawfulness application, but each and every situation is different. If you have enough evidence to demonstrate you comply with the 4 or 10-year rule, it will almost certainly be better to submit a Certificate of Lawfulness application. This is because you won't need to convince the Council that your application meets with the relevant planning policies, such as the loss of commercial uses or landscape policies.

If you do not have enough evidence, you may be better off submitting a retrospective application. Here your application will be judged against the relevant planning policies, and the fact that works have already commenced will not count against you. However, planners often don't like the types of development - such as garages or granny annexes being used as separate dwellings, and as such if you have the right evidence, a Certificate of Lawfulness application is likely to give you a greater chance of success.

Please note that the information contained in this article is correct at the time of writing. From 25th April 2024, the 4-year rule is to be replaced with the 10-year rule. This article has partly been updated to reflect this. Contact us to find out how this could impact on your case.