A flawed approach

An inspector has granted a certificate of lawfulness for the use of an annexe to the rear of a semi-detached house in Dorset as an independent dwelling (DCS Number 400-036-160). In doing so, he awarded costs against the council because it had not used the correct test. 

The appropriate standard for testing the evidence, the inspector explained, is made on the balance of probabilities, that is to say whether something is more likely than not. He noted, however, that the council had mis-directed itself by applying a higher test of beyond all reasonable doubt. PPG guidance, he continued, sets out that an appellant’s own evidence does not need to be corroborated by independent evidence in order to be accepted. If the council has no evidence of its own, or from others, to contradict or otherwise make the appellant’s version of events less than probable, there is no good reason to dismiss the appeal, provided the appellant’s evidence alone is sufficiently precise and unambiguous. 

The inspector recorded that the evidence submitted in support of the LDC application and the subsequent appeal included signed statements from the tenants and the owner. They described the manner of occupation of the annexe building and its continuous duration for more than four years prior to the application. A signed and dated tenancy agreement was also submitted. Although the expiry date was wrong, the hand-written date of signature was not. Taken together, the inspector found that the evidence was precise and unambiguous overall in demonstrating a continuous use for more than four years. 

The inspector noted that the council report did not dispute that the annexe had been occupied as described by the appellant, and accepted the use was not incidental to the main house. Nor did the report dispute the length of time it had been so used. Instead, it relied on the fact that the appellant referred to the building as an “annexe”, that metered water and electricity services were taken from the main house, and that no council tax had been paid for the annexe. He determined, however, that none of these factors contradicted the appellant’s case. 

The inspector also recorded that the council report made clear that the overall judgement of the appellant’s case was that it had “not been demonstrated beyond all reasonable doubt”. He pointed out, however, that that is the standard of proof required for criminal cases and was the wrong test to apply. The relevant test, established by the court in Thrasyvoulou v SSE [1984], is the balance of probabilities – whether something is more likely than not. 

Awarding costs against the council, the inspector concluded that the failure to exercise sufficient care in making a decision on the application, and followed through into the appeal, based on a flawed approach in considering and weighing the submitted evidence, amounted to unreasonable behaviour which had resulted in unnecessary and wasted expense for the appellants in pursuing the appeal. 

Further information on appealing a refusal to issue an LDC can be found at section 4.3014 of DCP Online.