Change of use of land

This forum is for Garden Law problems that don't fit into the other categories. Please treat it with respect.

Moderator: Angelisle

Post Reply
Posts: 2
Joined: Fri Jul 03, 2020 9:32 pm
Number of Posts per Page: 20
Number of topics per page: 20

Change of use of land

Post by Gardenlover »


There is a strip of land that runs along the rear of the properties in the street we live. The land was originally bought by the housing estate builder when the estate went up. I believe the land was set aside as a natural area between two phases of the estate and along the public footpath that runs between them. The land used to get strimmed for a couple of years after we moved in, then this stopped, presumably due to inaccessibility. Without our using or maintain the land, we would have had huge tees over hanging our garden by now.

For over 10 years we have been using the part of the land to the rear of our property for various activities garden related. The are is about 10m wide x 4m deep. Then a further 3m is a public footpath running down the 10m length.

The land has a lot of trees, some up to 25ft. It can also get very overgrown with weeds. The public footpath is not very visible from the land as there are a lot of branches blocking the view both in and out.

We have been using the land for BBQs, fire pits, storage and log store for over 10 years. About 5 years ago I put a shed on the land, with access from our garden. The front of the shed is plane with our garden fence, so it's sticks out into the land. The shed can barely be seen from the footpath. I have always opposed putting a fence around it, despite suggestions from other neighbours. I don't intent to put anything else on the land.

I have tried to find out who owns the land in an attempt to buy it. But the builder went bust so I have never made any progress.

Unfortunately, the council has received a complaint that some residents (there are others who have cut trees down) are taking over the land.

The council has contacted me and claims a change of use of land has taken place. They don't seem concerned about the neighbours cutting down trees or maintain the land.

They have advised me to apply for planning permission under the 10 year rule or a lawful development certificate. Both at a cost of £462!

Can someone confirm whether the 4 year rule applies to anything in my situation?

I am also aware of adverse possession.

Am I right in saying they are different. AP deals with ownership of the land, whereas change of use is planning. I have not fenced it off over the 10 years so don't think I have a claim on that. However, even if I did, I would still need planning permission for a change of use, is this correct?

So my situation is purely planning and getting that approved, whether I own the land or not?

I can't prove that I have been using the land as garden for over 10 years as I have no photos, documents or anything. There is a photo of the kids in the log store from about 9 years ago. The best I can manage are the neighbours signing an aphidavit to say I have used it as a garden for over 10 years.

My Preffered option would be a LDC, but I don't want to spend £462 with no hope of getting approval.

What are my chances with the limited evidence and my circumstances, am I wasting my money?

What else could I do to improve my chances?

Posts: 3182
Joined: Thu Mar 11, 2010 4:08 pm

Re: Change of use of land

Post by pilman »

After 10 years a change of use of land is immune from enforcement by the local planning authority, which makes that use the lawful use under planning law.
After 4 years operational development, such as erecting a shed, is immune from enforcement by the local planning authority.

If you have photographs dating back 9 years it would be sensible to consider how long before the full 10 years period of use of this land as part of your garden is completed, if that dated photo was to be part of the evidence to prove that fact.

In June 2019 someone I offered advice to received a letter from the LPA telling her that her use of land she had bought from the adjacent farmer was a breach of planning control because it was being used as an extension to her original garden.
She was told that she should make a planning application to regularise the situation, even though the letter stated that it was unlikely that planning permission would be granted.

Since this lady had bought the land in December 2009 my advice to her, as a planning consultant, was to start communication with the planning department to seek clarification why it was considered that this was a breach of planning control, partly because she had erected a small garden shed on the land in 2015 which was immune from enforcement as an operational development after 4 years.
The council's letter had specifically stated that the shed was unlawful, as was the claimed change of use of the land.

In her initial response letter she stated that the shed had been erected in April 2015, so that it was not considered to be liable to enforcement action.

This delayed the matter for further letters to be sent from and to the LPA. The letter sent at the beginning of January 2020 explained that the 10 years period of use had passed, with the writer claiming that this was now the lawful use of the land as per the time limits set out in Section 171B Town and Country Planning Act 1990.

It is now July 2020 and the LPA have not issued an enforcement notice, so that more than 10 years and 7 months have passed since ownership of the land occurred.

That may be your best way to try and resolve the situation in your favour.
Delay making a planning application or applying for a Lawful Development Certificate at a cost of £462, to ensure that the photograph can be used to prove more than 10 years have passed since the change of use began.

Start communication with the council by e-mail claiming that 10 years has already passed and point out that the time for enforcement action has now passed, so that the use of the land is lawful.
That will make the planning department aware that this is a possible situation whereby it has passed the stage when it can do anything to prevent such use.
Enforcement action against a breach of planning control is only taken if the breach is particularly serious, so stating that enforcement cannot be taken may give the LPA reason for ignoring what has already happened.

Whether the LPA would grant planning permission is dependent on compliance with local planning policies, but when an application is made for a Lawful Development Certificate the only matter that can be considered by the LPA is whether there is evidence of more than 10 years use, so that use is lawful.

That is strictly a matter of evidence provided by the applicant who has the legal burden to provide evidence that meets the civil legal requirement that on the balance of probability the land has been used for more than 10 years and is immune from enforcement action.

Statements of Truth can be signed by anyone from your family of by a neighbour able to state that there has been more than 10 years use of the land as an extension to your garden. A sworn affidavit is no longer necessary when a solicitor has to used to certify the Statutory Declaration composed by the person prepared to provide such a declaration. A Statement of Truth just needs to follow some simple rules which needs the person's name and address shown, as well as a signature beneath the final sentence that has to state "I believe that the facts and matters contained in this statement are true"
In the event that you want to prepare statements of truth I can provide some examples if you send a private message, although it is simply a matter of setting out known facts that someone is prepared to make regarding the specific use of the land in question.

In another part of your posting you stated that the builder went bust, although you did not mention whether the land is registered in the builder's name.

If this was an individual then it may be sensible to apply to Land Registry to be registered with a possessory title under Schedule 6 Land Registration Act 2002, because it is unlikely that there will be an objection from the registered owner.
If the builder was a limited company that is now dissolved, then the land was considered to be Bona Vacantia and immediately vested in the Crown when the company was struck of the Companies House Register.

The Treasury Solicitor's Office deals with such land, even though it will only be aware of its ownership when someone contacts the Bona Vacantia Department asking to buy the land belonging to a dissolved limited company.
Posts: 248
Joined: Wed Feb 24, 2016 10:34 am

Re: Change of use of land

Post by SwitchRich »

Pilman that is so interesting to read! Thanks for taking the time to post such detail :)
Posts: 2
Joined: Fri Jul 03, 2020 9:32 pm
Number of Posts per Page: 20
Number of topics per page: 20

Re: Change of use of land

Post by Gardenlover »


Sorry to be so slow to reply, we have a lot going on here.

That's some really good advice and I have read it closely. We are going on holiday at the weekend, so delaying things for now.

I will address the issue fully when we return.

Thanks again.

Post Reply