Killian Garvey, acting for Shropshire Council, secures the refusal of an application for a Lawful Development Certificate. The appeal related to whether a dwelling had been used as a private swimming pool for providing children’s swimming lessons for a period of at least 10 years.
A planning application for retrospective planning permission in respect to the development had already been refused by an Inspector appointed by the Secretary of State in 2015. Through the LDC application, the Appellant was seeking to argue that 10 years had now passed without enforcement, such that the development was now immune from enforcement, owing to section 171B(3) of the Town and Country Planning Act 1990.
The main issue, therefore, was whether the Appellant could demonstrate 10 years use. In the appeal, the Council had no positive evidence to assert that this was not the case. Indeed, this is significant in that the Planning Practice Guidance mandates that where the local planning authority has no evidence itself, the appeal should succeed provided the Appellant’s evidence is sufficiently precise and unambiguous.
The Council succeeded with the appeal, despite the absence of any evidence, owing to the cross-examination of the Appellant’s 6 witnesses, where it was demonstrated on the Appellant’s own assertions that 10 years use had not occurred. Accordingly, the Inspector found that the Appellant did not discharge the burden of proof.
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