Demonstrating authorised use

Demonstrating authorised use

Postby JustinKiwi » Wed Jan 30, 2008 12:29 pm

For structures erected prior to planning regulations (Oct 1964), what constitutes a demonstration of authorised use?

We put forward a Section 5 submission for an owner that erected decking on their site and were served an unauthorised development notice. The planing office refused the submission on the basis that it did not adequately demonstrate authorised use as a dwelling :confused:.

The dwelling was constructed well before planning regulations, and the property is unregistered.

Our approach is currently:

1. To refer to title deeds that describe the structure as a 'bungalow'

2. To provide copies of valuation certificates describing the structure as a 'domestic house'

3. To establish first connection dates for ESB and possibly water services

Are there any precedents for what else may be accepted as demonstrating use as a dwelling prior to planning regulations?
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Re: Demonstrating authorised use

Postby tommyt » Wed Jan 30, 2008 2:39 pm

:confused: I think you are confusing a mix of various planning provisions and regulations. You'll need to clarify before we can nerd it up on your particular concern here..
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Re: Demonstrating authorised use

Postby JustinKiwi » Wed Jan 30, 2008 3:12 pm

It IS kind of complex. Here is an attempt to clarify.

The property owner was served an enforcement notice for purported unauthorised development of decking at their holiday home. This dwelling was constructed pre-planning regulations.

Thinking that the erection of decking should have qualified as exempt from planning permission, we submitted a Section 5 (exemption ruling request).

The Section 5 application has been refused by the planning executive on the grounds that we had not adequately 'demonstrated the authorised use of the structure as a dwelling'. This is because exemption rights only apply in the case that an authorised dwelling exists on the property.

We now find ourselves in the position of having to prove the existence and use of the structure as a dwelling prior to the enactment of the planning regulations.

The holiday homes have been in use by generations going back 50 years or more. Plenty of documentary evidence can be found of their existence and use.

My query is what type of proof best demonstrates use as a dwelling?
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Re: Demonstrating authorised use

Postby Davids » Wed Jan 30, 2008 3:54 pm

A couple of years ago our office had a similar situation. We sent in all the information your getting along with an old ordnance surey map showing a structure on the site. However the planning authority was not happy until we managed to get 4 sworn affidavits from local people stating that they lived in the area prior to the sixties and that the building subject of the application is and was a dwelling house prior to 1964. Im curious to know if there is a more simple way.
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Re: Demonstrating authorised use

Postby henno » Wed Jan 30, 2008 4:05 pm

If the 'holiday home' is let or rented does it cease to be a 'dwelling'??? Is that the councils main contention?

Perhaps you should come at it from the point of view of proving the existing use is as a dwelling only.
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Re: Demonstrating authorised use

Postby JustinKiwi » Wed Jan 30, 2008 4:55 pm

@henno - The contention is not around rental use.

The planning executive has expressed a concern about 'scruffy' development given that the zoning for the land is 'Open Space, Amenity'. Although this land is privately owned, it is a coastal section, and does impact on the visual amenity of the area. The enforcement section has served three separate notices on owners in the area.

In general, the owners support control of development through the planning process, but wish to preserve the fundamental rights that attribute to a dwelling under the planning and development act.

@Davids - thanks for that feedback. We were considering obtaining similar statements from local residents. There are several still kicking that know the dwelling well ;)
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Re: Demonstrating authorised use

Postby tommyt » Wed Jan 30, 2008 6:16 pm

Interesting scenario and one I've not come across before. Would firing in a retention application for the decking not give you written clarification of the PA's position? sorry to say but if the affadavit route gives you no joy get your pin stripe suit dry cleaned, you could be heading to the high court with this one...
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Re: Demonstrating authorised use

Postby ctesiphon » Thu Jan 31, 2008 11:22 am

A couple of years ago I worked on an application in which the house had been in multiple occupancy for a number of years, but whether it had been that way since pre-'63 was not certain and the owner wanted to do work but maintain some of the divisions. At one stage letters were sought from neighbours stating that someone's father had collected kitchen scraps from the occupants of the house to use in the local piggery across the road, but ultimately the existing use couldn't be traced back to an early enough date with certainty. The house was on the North Circular Road, by the way. :)

I was struck at the time by what you seem to be thinking now- that this part of the planning system is perversely archaic, irrational and unscientific. Not much comfort, I suppose.

I'd agree that official letters from locals - even from the Guards, perhaps, or the parish priest? - would be the best course of action.

PS You say 'holiday homes' (plural) - if there are other neighbouring owners, might they have been through similar situations? Or would they be in a position to provide the required confirmation in any way?
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Re: Demonstrating authorised use

Postby sinnerboy » Thu Jan 31, 2008 11:30 pm

all sounds reasonable , unlike the LA . you may find David Keanes "Building and the Law " a good reference point .
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Re: Demonstrating authorised use

Postby JustinKiwi » Fri Feb 01, 2008 10:11 am

We are attempting to obtain letters from locals. A difficult paper-chase!

Given that the section 5 decision was served in early December, we are outside of the appeal window for this. As this point is fundamental to the exemption rights, I am wondering how this should be presented to the PA?

Perhaps this should be bundled as a planning retention application for the dwelling? The risk is that if they refuse, the whole thing may need to be knocked :eek:
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Re: Demonstrating authorised use

Postby JustinKiwi » Mon Mar 31, 2008 3:47 pm

We finally cracked this last week :)

What clinched it was a map used in the 1950's for the collection of rates (back in those bad 'ol days ;) ) The combination of this with a valuation certificate from the same period was enough to convince the PA of the use of the structure as a dwelling. What was stunning was that the map was unearthed by a council employee who took pity on us :confused:

By this stage both a section 5 application and planning retention had been refused on the same grounds. We are now back to square one, but with a confirmation of our rights to planning exemption.
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