Development Control Casebook: Housing: Conversion - Flat held independent of commercial use

In issuing a lawful development certificate confirming that the upper part of a building in Essex can lawfully be used as a dwellinghouse, an inspector has decided that the relevant period to achieve immunity was four years.

The ground floor of the building was used as offices and for secure storage. A side door opened into a stairwell leading to the first floor containing a kitchen, a sitting area, two bedrooms and a bathroom. The council claimed that the upper part of the building was not self-contained but formed part of a mixed use of the whole building. This required the appellant to prove that the use had been continuous for ten years, it asserted.

Citing Gravesham Borough Council v Secretary of State for the Environment and O'Brien (1982), the inspector held that in order to qualify as a dwellinghouse the accommodation had to provide all the facilities needed for day-to-day living. Van Dyke v Secretary of State for the Environment and Southend-on-Sea Borough Council (1993) held that it is possible for a dwellinghouse to be located in another building and this could trigger a material change that does not require the whole building to be treated as a single planning unit, she noted.

She found no overlap between the residential and commercial parts of the building. The fact that both parts were served by the same electricity and water supplies did not prevent the upper part from providing all the necessary facilities for independent living, she held. Accordingly, the four-year rule applied. The council had little evidence to resist the testimony of the appellant, his son and his mother, who stated that the premises had been continuously occupied residentially since 2004.

DCS Number 100-069-503

Inspector Katie Peerless; Inquiry

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