Legal consequences of living in commercial property

[dp6ai]

Hi,

I was wondering if anyone could fill me in on where i would stand living in a commercial property (B2) which i own.

I am going for change of use but this is looking more and more unlikely and wanted to know what the council could do if i was caught living there without the proper use.

On a secondary note i've heard some people talk about the fact that if you can prove you have been living somewhere for a number of years the current use is effectively abandoned and change of use is normally a formality. There seem to be a number of ways of helping this along, getting the property banded for residential council tax by the VOA and showing continuous utility bills. DOes anyone know any more about this.

Your help in this would be greatly appreciated.

Many thanks

DP

[Richard Webster]

Under planning law you would have to show you had lived there continuously for 10 years before it would be too late for the Council to take enforcement action. Until then they can serve an enforcement notice requiring you to cease the use. You can appeal against this but if you lose the appeal they can prosecute you for breach.

[dp6ai]

Richard,

Thanks for the update. Sorry for leaving the response a while but i've been waiting for the response to my planning application. It was rejected due to a lack of valid marketing over the last 24 months as a B2 property.

I have the following issues:

• It is a locally listed building that was falling into disrepair
• it has been empty for nearly 30 years
• it is within the gates of what is effectively a residential development
• All of the marketing has been in residential sources online, although these did mention that the propery was commercial

I believe the normal route in this situation is to get the property back on the market for 18 months as a commercial property to prove that it is not wanted in the use bracket it has been assigned. The problem i have with this is that i paid over the odds for it (stupidly) because i assumed wrongly that the amount of time the property had been empty would play heavily on the planning decision. This means that if i put the property on the market at commercial market rates someone will almost certainly try to buy it as a development opportunity to turn it residential.

Any advice on this would be hugely beneficial, i feel like im way up the creek without a paddle. I would be happy to take on a planning consultant for the appeal (and pay through the nose for it) if i thought there was any likelihood of winning but im not even sure where to start looking for someone good.

Many thanks


DP

[Richard Webster]

If the Council's policy requires proof of marketing as a commercial property then if you want consent within the 10 year period then that is what you will have to do - or wait until the 10 years have elapsed.

Policies vary so much from council to council that you need to get a planning consultant who knows your area. He may advise that you have some chance of getting permission on appeal despite their policies or he may tell you wait the 10 years or do the marketing. The marketing tends to be expensive as you have to show that it has been advertised in appropriate periodicals and local papers etc and this can be quite expensive do say every month for 18 months or whatever.

[dp6ai]

Richard,

Again thanks for the feedback, the problem i have is that as i paid over the odds about 25% over the commercial price, the only way i can put it on the market at what would be considered market rates means i would be taking a huge hit if someone decided to buy it. I really dont think the building is viable as a commercial property, hence the 30years empty, but at a reduced price the building is so "special" i think a would be developer would snap it up.

I cant see how i can get round this?

thanks again.

DP

[Richard Webster]

Either live there or let it until the 10 years is up. Make sure that any lettings are more or less continuous. A short void period might be acceptable - but you have to show a continuity of non commercial use and any significant void period would mean that your 10 years had to start again.

[dp6ai]

Richard,

I understand that currently this seems like a probable way of getting the change required, I am concerned that, as you stated in your first post, the council could issue an enforcement notice. This would then mean any time spent living there would be useless and i would be in a worse situation.

Can you let me know your thoughts on the following.

The building is approx. 1890's and basically and empty shell on the 1st floor. No matter what its use going forward there is going to have to be considerable changes internally with the erection of partition walls and a mezzanine etc. Due to the nature of the building, access is severely restricted.
Could i claim that due to part-M building regs, i cannot make the required changes financially viable (there is no way i could add disabled access and everyone is in agreement with this) and therefore as a "material alteration" is taking place i cannot make it legally class B1 part-M compliant?

On a secondary note, can you advise on any checks i should be making before hiring a planning consultant?

Many thanks

DP

[Richard Webster]

The point about the Part M etc is possibly one that might be a make weight argument in any planning application/appeal but this is a level of detail that I can't really comment on as a solicitor.

Finding a planning consultant isn't that easy - look on the internet to start with and get some names.

Then phone local planning authorities near you - not the one where the property is - and try to talk to the development control officers and see if they can tell you the names of some local planning consultants who they respect as knowing what they are doing. Very often they used to work for one of the authorities.

You also need to be aware of the politics (with small "p") of it. If planners are busy they may have better things to do than worry about your use of this building. If they have turned down your application in the past and haven't threatened any enforcement action then that suggests they don't really care.

They will worry about precedent. If they allow you to do it then others may cite it as a precedent. If you sit out the 10 years and then get a certificate of lawful use they have no alternative to grant it on proof of the facts and merits don't come into it. Then if your case is cited later on another appeal they can distinguish it by saying they had no choice but give the certificate but would have refused an application for permission....

This is the kind of stuff that happens at planning appeals - I've been involved in lots in my earlier years (from the Council's side) and had to say things like that!