Planning Case Study – CLEUD for Secondary Dwelling

After a client had received Notice from the Local Authority and the threat of enforcement action for having constructed a secondary dwelling adjoining a main residence without planning consent, Samuel & Son worked with the client and the Local Authority to obtain a CLEUD for the unauthorised development.

CLUEDs for Secondary Independent Dwelling House & Detached Garage/Home Office

Samuel & Son’s client purchased a residential property in East Sussex in 2010 comprising a single residence with a detached garage and separate tin storage barn all set in about 1.5 acres.

Almost immediately upon acquiring the property, the client began work on several projects in the interest of accommodating his family’s needs.

The first project was the demolition of the existing garage and its replacement with a detached new build timber framed and timber clad single storey dwelling, specifically to meet the needs of his elderly mother and to allow her to live adjacent to him but also maintain her full independence.

Secondly, our client had built a detached timber framed cart barn style garage with an integrated home office for his own private use on a part of the existing garden/driveway.

The projects were completed without planning consent and subsequently a Local Authority Planning Enforcement Officer made a site inspection of the property leading to a Planning Contravention Notice being served on the property.

Having been served the Notice from the LPA, the client approached Dan Page of Samuel & Son to act for him and work with the LPA to agree a strategy going forward that would hopefully enable the client to retain the buildings and their existing use.

Rather than look to submit retrospective planning applications, both cases were eligible for a Certificate of Lawful Existing Use and Development (CLEUD) as they met the minimum time period, (4 years in both these cases), and had been in continuous use for their respective purposes since completion.

A Certificate of Lawful Existing Use or Development (CLEUD) is a legal document (not a planning permission) issued by the Local Planning Authority that is generally used to regularise unauthorised development and constitutes a complete defence in the event of planning enforcement action being taken.

Unlike a full planning application, the issue of a Certificate depends entirely on factual evidence about the history and planning status of the building.  The planning merits of the use and activity in the application are not relevant.

The onus of proof is squarely on the applicant to show to the Council, on the balance of probability, that the development complies with the minimum time periods for a CLEUD and that a certificate ought reasonably to be issued.

Dan Page of Samuel & Son discussed the planning breaches with the LPA and it was agreed that two separate CLEUD applications would be the most sensible route to formalise the planning anomalies.

Dan then needed to work with the client to collate a comprehensive and compelling file of evidence to demonstrate that both buildings had been constructed and used for a continuous period in excess of 4 years, the first as a separate dwelling house and the second as a garage/home office.

The client had been a meticulous record keeper and was able to provide invoices and receipts for building materials and payments to his builder. One evidence document involved the submission of two lever arch files of building merchant material receipts and phased payments to the builder for both projects.  Other evidence submitted included photographs and a mortgage valuation of the property shortly after completion of the annexe and garage/office which provided a full description of all the component parts of the property.  Dan also arranged for various family members to provide affidavits.

Fortunately, it was possible to provide overwhelming evidence to prove that the two structures were completed and occupied for the respective uses for a period in excess of the required four years and in this case the client did not face enforcement action.

However Samuel & Son strongly recommend that advice is sought prior to carrying out any work that would normally require planning consent.    It should not be presupposed that a retrospective application or CLEUD application will succeed subsequently.

If you require any planning help and guidance and would like to discuss your specific situation, please contact our planning expert Dan Page.

Tel: 01435 864020