Planning Permission for change of use?

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rbunting9
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Planning Permission for change of use?

Post by rbunting9 » Thu Nov 21, 2013 11:04 am

Hello everyone!

I am new to this forum and was hoping someone could give me a little bit of advice. I will try to keep this as short as possible.

In January 2010 my husband and I bought 1/2 acre of land that borders our back garden. This land was full of trees and ivy and my husband has made it into a woodland garden. This piece of land belonged to a house across a small private road and when the old lady died her family sold the house but kept back this piece of land with the intention of one day applying for planning permission to build a dwelling. This was not allowed when they enquired hence my husband and I purchasing it as an extension to our garden.

At present we have been using the land as a garden, as it always has been, with varying degrees of cultivation. We have recently bought a 3rd car and as we do not have space on our driveway for a third car we decided to erect a carport on the edge of our new acquired garden well within our boundary and to the permitted size and dimensions as recommended by the planning portal without the need to apply for planning permission.

A disgruntled neighbour (who happens to live in the house once owned by the old lady) has made a complaint to the council and has organised a petition to stop us from erecting said carport. We have had the letter from the council who has asked us to apply for planning permission to change the use of the land into a garden intially and then apply for permission to erect the carport. We have evidence and documents to prove that the land was indeed used as a garden and once belonged to the house across the private road and obviously have the land registry documents to prove our ownership etc. etc. The land is not under any heritage or preservation laws.

My question is if this piece of land has always been a garden why would we have to apply for planning permission to change it's use? and indeed if it is a piece of garden why would we need to apply for planning permission to erect a wooden carport when it is clearly within the guidelines set out by the planning portal to enable to build one without the need for permission?

Any help and advice would be greatly appreciated! :D

MacadamB53
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Re: Planning Permission for change of use?

Post by MacadamB53 » Thu Nov 21, 2013 12:30 pm

Hi,

In answer to your question, all land is assigned a "use" by the authorities and the one assigned to your land needs to be changed to reflect reality. What has probably happened is the land was once assigned "agricultural" (just an example) and over time the real use has changed to a garden without the authorities being notified. This typically happens where a small parcel of what was once a field is not included in development and so overlooked.

I don't think you've anything to worry about with getting the change of use approved.

Your only real issue is having a twit as a neighbour :)

Kind regards, Mac

edit: how are you proposing to access with a vehicle? (is this the real issue?)

Clifford Pope
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Re: Planning Permission for change of use?

Post by Clifford Pope » Thu Nov 21, 2013 1:31 pm

Access would presumably be down the small private road? Do you own that road? Do you have a right of way along it?

Does the fact that the "new" garden is on the other side of the road from the house to which it is now attached have a bearing?
Are the council trying to argue that it is a) not part of your curtillage, and/or it is not part of your planning unit?

Although an isolated garden may have a defined useage as "garden", does it have permitted development rights of its own?

I'm an interested bystander, having a somewhat similar situation myself, as yet unchallenged.

rbunting9
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Re: Planning Permission for change of use?

Post by rbunting9 » Thu Nov 21, 2013 3:50 pm

Hi,

Thanks for your advice guys.

The land was originally assigned a garden as was the whole of the plot when the house was first built then many years later when the old lady died, the family split it into two sold the house and kept the land/garden which we then bought.

The land is accessed through a small gate at the bottom of our garden and we also have access rights from the private road with currently has a tarmac car parking space at the edge of it which we own. We are able to use the road as outlined in our contract with the stipulation that we have to contribute as necessary for the maintenance of the road which we accept in any case.

The council did mention 'domestic curtilage' but we were under the impression that as it has always been a garden and is shown on the original deeds of the house as being a garden, why would we need to change it's use. We thought that just applied to agricultural land and the like, it is clearly not agricultural land and never has been anything other than a garden. It does not mention anything in our contract or conveyance anything about development rights.

And yes, the neighbour is a twit, for years she tried to claim the land was a turning space for the whole street and carried on parking her car there on our land which we paid a pretty penny for!

We are just not sure how to proceed now and are talking about contacting a solicitor.

MacadamB53
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Re: Planning Permission for change of use?eg

Post by MacadamB53 » Thu Nov 21, 2013 4:12 pm

Hi,
The land was originally assigned a garden as was the whole of the plot when the house was first built then many years later when the old lady died, the family split it into two sold the house and kept the land/garden which we then bought.
I think you might be getting confused between what the owner of the land uses it for and what status I has in the (figurative) eyes of the authorities. Just because it looks like a garden for x years that does not mean it is (figuratively) viewed as such by the authorities.

Just to be clear, the status held by the authority will only ever change when they are asked to change it and they deem the request justified and sound. They don't have a chap in a van driving round to check if any fields now look like gardens and then updating there records to reflect what they see.

When you asked about installing a car port your LPA have checked their records and seen the land has a status which does not reflect reality. So they need someone - you - to request a change to the status on their records so they can process the request.

Hope that makes sense, Mac

PS Clifford, if I've read it correctly, the council are not opposed, just the twit neighbour.

MacadamB53
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Re: Planning Permission for change of use?

Post by MacadamB53 » Thu Nov 21, 2013 8:02 pm

Hi rbunting,
why would we need to apply for planning permission to erect a wooden carport when it is clearly within the guidelines set out by the planning portal to enable to build one without the need for permission?
Without more details about what you plan then nobody can answer this question.

Kind regards, Mac

pilman
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Re: Planning Permission for change of use?

Post by pilman » Thu Nov 21, 2013 8:03 pm

The enthusiasm that Macadam shows when he responds so readily to the various types of postings on Garden Law is impressive, but it does seem that his knowledge is not always sufficient to accurately advise someone with no knowledge at all about planning matters, whereas Clifford immediately realised that the definition of Residential Curtilage is what needed to be addressed.

The first thing to realise is that the half acre area of land that has just been purchased has never been within the residential curtilage of your dwelling house.

Permitted Development rights granted under Part 1 Class E of the Town and Country Planning (General Permitted Development) Order 1995 as amended, applies solely to development within the curtilage of the dwellinghouse.

In that respect your car port will require planning permission granted by the Local Planning Authority.

The current use of the land is slightly different if you can show conclusively that the land was set out and maintained as a residential garden when it was part of the property across the road.

When agricultural land was mentoned, that is sometimes how a Planning Officer will look at matters when an area of half an acre is involved.
If the LPA does insist that the current use of the land you have bought is not residential garden, then it will require a change of use application to confirm that such use will be lawful.

Initially it would be sensible to contact the planning enforcement officer, who is probably the one who has contacted you if the neighbour made a complaint about a possible breach of planning control.

You need to establish what this Officer considers is the current lawful use of the land, but you can argue that it has always been residential garden if that can be proven.

The fact that you bought it rom the previous house owner's executors may mean it is more difficult to prove a continuous use as garden, if the original house was sold with a smaller area of land as its garden.
The LPA could argue that this land became something other than garden whilst owned by the executors who sold the house whilst retaining this half acre of land.

As you need to make a planning application for the erection of the carport, including a change of use for the land to residential garden associated with your current property may be necessary, unless the Enforcement Officer agrees with your interpretation that the lawful use that the land was established as residential garden even if that garden was not part of your property.

Separating the two matters is how you need to deal with the LPA.
The carport will need a planning application, but the "garden" may not require a change of use if you can prove that for more than 10 years it has been in use solely as the garden of a residential property.
Even if this land was once in any other use, such as agricultural, once land has been used for more than ten years for a particular purpose, there can be no enforcement action taken which means that the use is then the established lawful use of that land.

The difficulty when dealing with Planners is that you need to prove everything, they just need to insist you are wrong.

I trust this assists you in understanding the current situation you find yourself in.

MacadamB53
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Re: Planning Permission for change of use?

Post by MacadamB53 » Thu Nov 21, 2013 8:25 pm

The enthusiasm that Macadam shows when he responds so readily to the various types of postings on Garden Law is impressive, but it does seem that his knowledge is not always sufficient
I try my best and hope you step in if need be :D

Warm regards, Mac

rbunting9
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Re: Planning Permission for change of use?

Post by rbunting9 » Fri Nov 22, 2013 1:55 pm

Thank you pilman

Suddenly everything becomes clear! My husband has spoken to the LPA and he has an appointment on Monday so fingers crossed!!

I will let you know the outcome :D

Eavestile
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Re: Planning Permission for change of use?

Post by Eavestile » Tue Mar 12, 2019 6:40 pm

I wonder what the outcome was?

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