Residential subdivisions require planning permission but individual flats may benefit under Four Year Immunity Rule

Where the use of a “building” has been changed to a single private dwellinghouse, without planning permission, for at least four years the owner may be able to apply to the local planning authority for a certificate of established use. Once obtained this will prevent the local planning authority from taking enforcement action in relation to the original breach of planning control.

What happens if the property was a “building” and the breach consists of converting it into a number of flats?

Looking at each flat in isolation is it “a single private dwellinghouse” that the relevant “part” of the “building” was converted into and so eligible for such a protective certificate once the four years was up?

Or do you say it’s one of a multitude of flat dwellings that resulted from the conversion of a building and so not a conversion to a single private dwellinghouse such as to qualify for a certificate i.e. do you take a holistic approach to the “building”?

If what we have to focus on is the “planning unit” (i.e. each individual flat) and it’s status over the last four years down to the present time, the former approach may be just about tenable.

Indeed in Van Dyck v Secretary of State for the Environment (1993) the Court of Appeal found that more than four years after such a subdivision of a building each flat was entitled to the benefit of the “four year immunity” on the basis that Section 336(1) of the Town & Country Planning Act 1990 said “a building” was indeed to be construed as including “part of a building”.

In the recent case of Ozyurekliler v Secretary of State for Communities and Local Government (2013) the appellant had converted his freehold terraced house into seven flats. This was held to be a breach of planning control.

However in appropriate cases the “four year immunity might have been available later to any tenants of the individual flats if the flats found takers and lasted so long..

As usual this Blog is for general interest. It does not replace the need to seek proper advice in individual cases.