A Devon lawful dwelling appeal has succeeded after an Inspector applied the old four-year enforcement period rather than the current ten-year rule. In a decision dated 22nd October 2026, Inspector R Curnow allowed appeal APP/Y1138/X/25/3371760 for a building known as The Cottage at West Sandford.
The Inspector issued a lawful development certificate for use of the building as a dwelling, overturning Mid Devon District Council’s refusal. The certificate establishes lawfulness on the application’s date, 19th June 2025, and is not a fresh planning permission based on whether another house would be acceptable in this rural location.
The lawful dwelling finding matters because the building had not been continuously occupied every day, lacked separate council tax and electoral roll records, and had been affected by a fire. The Inspector nevertheless judged its dwelling use continuous on the balance of probabilities, while explaining why the legislative change in April 2024 did not alter the time period. I would not treat the missing records as decisive: the Inspector assessed the evidence as a whole.
Why this lawful dwelling claim used four years
Section 171B of the Town and Country Planning Act 1990 governs the periods after which certain unauthorised development may become immune from enforcement. In England the relevant period for a change of use to one dwellinghouse was previously four years, but it became ten years for breaches arising on or after 25th April 2024.
The change came through section 115 of the Levelling-up and Regeneration Act 2023 and its commencement and transitional regulations. Government guidance expressly preserves the earlier four-year approach for a change of use to a single dwellinghouse that occurred before the commencement date.
In this case, both the appellant and the council had approached the certificate application as though ten years had to be established. Inspector Curnow concluded that was the wrong test for the alleged pre-2024 change of use, which had to be assessed on its own facts using a four-year period.
That is the essential legal lesson from the lawful dwelling case. Applicants cannot rely on the former rule for new breaches beginning after the transition, but nor can a council retrospectively apply the new ten-year requirement to an earlier qualifying change of use.
The distinction between changing a building’s use to a single dwelling and constructing a completely new dwelling may also be important under the statutory regime. The decision before the Inspector concerned the former use claim, not retrospective planning permission for a wholly new house.
The history of The Cottage at West Sandford
The appellant’s family had owned the land during two separate periods. A central part of the building was erected during an earlier period of ownership and used as a lounge, sleeping area and guest accommodation, but there was no convincing evidence that it constituted an independent dwelling at that point.
After the building was bought again in 2010, extensions added a kitchen and bathroom by the summer of 2014. The Cottage had its own electricity, spring-fed water and private sewage treatment arrangements, with boundary fencing and hedges distinguishing its land from nearby 1 Hele Cottages.
The council did not dispute the building’s physical facilities at the time of the application or that it could operate as a dwelling. Its challenge focused on whether the claimed residential use had continued through the necessary period.
For the lawful dwelling appeal, the Inspector treated the separate planning unit, physical facilities and evidence of occupation together. It was not enough simply to point to a building being equipped for domestic use, yet continuous physical presence of an occupier was not necessary in every circumstance.
Living abroad did not necessarily interrupt dwelling use
The appellant had a house in Spain and spent significant periods there. His descriptions of how long he stayed abroad and in Devon were not perfectly consistent, while friends and relatives supplied statutory declarations supporting the property’s history without always specifying precise occupancy dates.
The Inspector did not automatically accept every assertion. Some declarations were too vague to advance the key chronology, and the evidence for the period between the 2014 building works and the end of 2020 was not compelling.
But after the relevant post-Brexit period, he found more convincing evidence of residential occupation. The appellant used the building when visiting England, guests sometimes stayed in his absence, and it remained furnished and fitted for independent domestic occupation throughout.
The Inspector assessed whether, during the required four years, enforcement action could have been taken against the dwelling use. Even in an unoccupied week, a visit would have revealed a configured residence rather than land that had reverted to another use.
The lawful dwelling analysis was therefore concerned with the continuity of use, not a simple tally of nights somebody slept there. That approach followed established principles requiring a rounded assessment of occupation, availability, configuration and the factual pattern of use.
A fire and missing records were not fatal
A fire in 2023 damaged part of the wall and roof above the bathroom. The appellant said The Cottage remained capable of occupation while repairs were undertaken. The neighbour’s contrary account was not supported by sufficient direct evidence to persuade the Inspector that residential use had stopped.
The property was not separately registered for council tax, the appellant was not on the electoral roll there, and ordinary utility bills were not produced. The Inspector considered the absence of such records a weakness, but none was an absolute requirement for proving lawful dwelling use.
Statutory declarations and the remaining evidence still had to be sufficiently precise, unambiguous and credible. The Inspector gave limited weight to observations from neighbours who had not entered the building and could not necessarily see activity through the boundary planting.
He also rejected the proposition that declarations by relatives and friends lacked weight merely because those people were connected to the applicant. Their contents still needed careful evaluation, but their personal relationships did not automatically disqualify them.
On the totality of the evidence, the Inspector found continuous use of a separate dwelling for the relevant four-year period. The council’s refusal was overturned and a certificate issued, with its scope limited to the identified land and the use actually certified.
How to approach older lawful-use cases
The lawful dwelling appeal is a reminder to start with the correct legal test and the date the alleged breach began. A period applicable to development starting today may be materially different from the period preserved for an older breach.
Applicants should provide a clear chronology of occupation, periods away, physical changes, separate facilities and any events that may have interrupted use. Utility bills and council tax records can be valuable corroboration, but the absence of one document is not always determinative.
For advisers, the important question is what the evidence proves on the balance of probabilities, not whether it forms a perfect continuous paper trail. An unexplained change of use, an intervening abandonment or contradictory evidence could produce a different outcome on another site.
Read the Planning Inspectorate appeal record and the government’s enforcement time-limit guidance. Our Leigh-on-Sea dwelling-use appeal report examines another historic immunity case. The appeal decision is also available on AppealBase.
0 Comments