Regular readers will recall that we were closely monitoring the changes in the law that abolished the four-year rule after which some breaches of planning control became immune from enforcement action and, accordingly, lawful by effluxion of time. By way of a refresher for those who want it, our articles are here, here, and here.
In our February 2023 article, we flagged the fact that some applications for Certificates of Lawful Existing Use or Development (CLEUD) were being made under the four-year rule by or on behalf of applicants who were concerned that, although they qualified under the four-year rule, they would not qualify under the ten-year rule. That was on the advice of some planning consultants who took the view that it was necessary to submit applications as soon as possible to beat the change in the law. That was the opposite of our advice, which was to sit tight and wait to see what the transitional provisions would be and when the change in the law would come in to effect.
The law changed on 2 April 2024 and, in the event, the transitional provisions protected breaches of planning control to which the four-year rule applied that had occurred prior to that date.
Shortly after the law changed, we received an enquiry from a potential new client who had been advised to submit a CLEUD application on a property he owned in the East Devon District Council (EDDC) local planning authority area. He has purchased the property in April 2017. It is a small but solidly built brick building that had been empty for some time and had been vandalised. It remained connected to the mains sewage system and to water and electricity. The original intention had been to use it as a design studio and our client started to restore it for that purpose, but circumstances changed, and he began to live in it in September 2017, initially to prevent further vandalism, and carried on doing it up around him. At the outset, the facilities were very basic with a camp bed and a gas cooker but, over time have been improved into what is now a comfortable home.
On the advice of a previous planning consultant, a CLEUD application was submitted for the use of the property as a dwelling in May 2023 and supported by a planning statement and several statutory declarations. That application had not been determined by April 2024, but EDDC had raised some issues and our client was expecting it to be refused. He was concerned that the unauthorised residential use of the building could then fall under the ten-year rule, as the four-year rule had by then been abolished. Given the transitional provisions, we were able to re-assure him that the four-year rule would continue to apply.
One of EDDC’s concerns was that, for much of the period between September 2017 and May 2023, the building had not been in what it considered to be a “habitable state” which it said meant that it could not be treated for planning purposes as functioning as a dwelling. EDDC had also raised doubts as to whether our client had been living in it either at all, or for a sufficient period of time for the residential use to have become lawful under the four-year rule. That was because an EDDC enforcement officer had made several visits and had put some notes on his file to the effect that our client was not living in the building.
We advised that under the established case law (see, for example, the Gravesham case) the legal test is not whether buildings can be considered to be “habitable”, which is highly subjective depending on individual expectations, but whether they are “buildings that ordinarily afford the facilities required for day-to-day private domestic existence.”
When we reviewed the May 2023 CLEUD application, we advised that we should prepare additional submissions to address the legal test and also to demonstrate when our client first started occupying the building as a dwelling. To do that it was necessary for us to prepare further statutory declarations based on discussions with our client and others for them to swear in front of a solicitor and put together a supplemental supporting statement. We submitted those in August 2024, after which we heard nothing for months. Given that the clock was still running on our client’s residential use of the building, we did not chase EDDC for a decision. The May 2023 CLEUD was eventually refused on 14 May 2025. The primary reason for the refusal was stated to be the EDDC enforcement officer’s file notes that said that, at the time of his site visits, our client was not living at the property. As well as refusing the CLEUD application, the planning officer recommended taking enforcement action to prevent what EDDC had determined was an unlawful residential use of the building.
To try to head off the service of an enforcement notice, we advised our client that we should submit a fresh CLEUD application, together with a further statutory declaration, to put forward the best possible case and to challenge the accuracy of the enforcement officer’s file notes. Based on the approach that EDDC had taken with the first application, we thought it possible that it would refuse the second application and we needed it to be as strong as possible to provide the basis for a successful appeal if that became necessary.
We informed EDDC that we would be submitting another application to address the enforcement officer’s comments and avoid the need for it to take enforcement action. We also requested a copy of any contemporaneous site notes or photographs from the enforcement officer visits so that we could specifically comment on those. None were received.
We submitted the second CLEUD application on 30 May 2025. As with the May 2023 application, we then heard nothing for months. However, instead of determining the application, with no prior warning, EDDC issued an enforcement notice dated 12 September 2025 requiring our client to:
1. Permanently cease the residential use of the building.
2. Permanently remove all residential fixtures and fittings (including any installed cooking facilities, bath or shower installations) from the building.
3. Permanently remove all domestic paraphernalia (including sofas, armchairs, dining tables and chairs, beds and bedroom furniture and equipment such as televisions) associated with the residential use from the building.
4. Permanently remove all materials and debris associated with compliance with steps 2 and 3 from the building.
Or client was given 9 months to complete the above and the enforcement notice was stated as coming into effect on 14 October 2025.
We regularly act for clients who have received enforcement notices, or who are expecting to receive them and/or other enforcement procedures. We therefore advised our client that any appeal to the enforcement notice had to be submitted before it came into effect.
On our advice, our client agreed that we should instruct planning solicitors to review the position and engage with EDDC on his behalf. We have a good working relationship with a number of solicitors and barristers whom we instruct on behalf of clients and work alongside as and when appropriate. The agreed approach was that the solicitor would write to EDDC to set out the case for withdrawing the enforcement notice on the grounds that a) it was not expedient for it to have served it so it did not meet the requirements of Section 172 of the Town and Country Planning Act 1990, and, b) serving the enforcement notice was contrary to EDDC’s local planning enforcement policy which states that in cases where breaches of planning control may be immune from enforcement because of the passage of time, the person responsible will be invited to submit a CLEUD application and formal enforcement action will not take place until after the application has been determined and will not be taken at all if the breach of planning control is remedied by the grant of a certificate.
Given EDDC’s approach up to this point, we and our client were working on the basis that it was unlikely that it would withdraw the enforcement notice and that it would be necessary for us to appeal it. We and our client were, accordingly, delighted when it both withdrew the enforcement notice and granted the second CLEUD application.
This case is an excellent example of what can be achieved by adopting a strategic approach, and by bringing in other specialist professionals at the right time to unlock a solution. It is difficult to underestimate the worry and concern faced by a client in these circumstances where failing to regularise the use of the dwelling would have resulted in the loss of their home. Above all, it is professionally satisfying that we have been able to achieve the right result for them. Given the working relationship that we have developed with our client whilst acting on this case, we asked if he would like to add a few words of his own and we are very pleased to have received the following:
“I am Mark Sanders’ client and the owner of the building referred to in the above article. I have asked Mark if he would kindly include my comments as a testimonial in praise of Acorn Rural Property Consultants and their recommended Associates, along with my gratitude for the professional and dedicated service that they have given me throughout this long emotional and testing journey. I would add that having researched many planning consultants in the very early stages of this matter, Mark was the only one that took the time to visit me at the property to get a complete and accurate picture of the challenge ahead. I knew then that I had chosen the right person and company to take on, and as it turned out fight, this matter on my behalf.
Readers of this article will quickly see that one of Mark’s main skills is being succinct, a skill that I do not possess but I can assure everyone that despite the clear and factual article above, that it really cannot fully explain the twists and turns that we have gone through together, culminating with the awful threat of losing my home and possibly the resultant loss of my property. I have literally bombarded the Acorn team with a plethora of details from day one, some being relevant and others being insignificant. Without complaint, Mark and his team have carefully and concisely sorted masses of paperwork into clarity and the formation of his above-mentioned strategic approach.
“Strategy”
Plan of action; Outlines the specific methods and actions to be taken to achieve the desired goal
Goal-orientated; A strategy always has a specific objective or goal it aims to accomplish
Uncertainty; Strategies are often developed to navigate conditions of uncertainty
Flexibility; The definition of strategy includes the art and skill of devising and employing plans, suggesting a need for adaptability
“Strategy” most definitely sums up Mark Sanders and the Acorn team.
I have been in business all of my life until illness and circumstances forced me to retire with uncertainly for the later part of my life, then this project reinvigorated me to some extent, intending it to be my last hurrah, with my soul embedded deep in its design and refurbishment, to hand on to my family & grand kids. This was sadly jeopardised prior to the involvement of Mark and his special team.
My own case was a Lawful Development Certificate, but I have no hesitation in recommending Mark & Acorn in any Planning matter as you will receive the skills mentioned here and very much more. I will remain forever indebted to everyone in this Company, who have fought through every challenge right to the very last moments. Thanks to them, I can now sing my Swan Song amongst nature in my special rural retreat.”
