In quashing an enforcement notice directed at the alleged use of a terrace house in Greater Manchester as a teaching centre and place of worship an inspector has made an interesting point about where the burden of proof lies (DCS Number 400-012-160).
The council maintained that “…it is well accepted law that in enforcement appeals the burden of proof lies with the appellant”. This might be the case, as a generality, the inspector acknowledged. He reasoned, however, that it is difficult to prove that a use of land has not occurred, because if it hasn’t then there will be no evidence. He explained that, in fact, the burden of proof applies mainly where an appellant accepts that an unauthorised use has occurred and is attempting, in a ground (d) appeal, to show that it has subsisted for a sufficient period of time to have gained immunity from enforcement action. In a ground (b) appeal the onus is on the council to show that the alleged unauthorised use of a property has occurred and has, at the time of issue of the enforcement notice, replaced the lawful use and is the last known use of the property.
The inspector found that the council had not adduced sufficient evidence to justify a conclusion that the alleged unauthorised use of the appeal property as a teaching centre and a place of worship had occurred, had replaced the lawful use as a dwellinghouse, and was the last known use of the property. Accordingly, he decided that the ground (b) appeal succeeded and he quashed the enforcement notice.
Planning authorities might wish to review their enforcement protocols.
The following DCP chapter is relevant: 4.5312