Written by Nikki O’Hagan, 10th October 2024

On 25th April 2024, the 4 year rule ended in England and was replaced by the 10 year rule. The government’s transitional provisions do mean, however, that the 4 year rule does still apply and can still be used in certain circumstances. Confused? You’re not the only one!

We’ve taken multiple enquiries about the 4 year rule since April and we understand that there’s a need for some clear guidance about when the 4 year rule does still apply and how it works. So we’ve put this guide together which we hope will be of use to developers and homeowners alike.

What is the 4 year rule?

In the simplest terms, the 4 year rule worked – and, in some circumstances, still works – like this:

If you carry out development that requires planning permission without gaining planning permission, that development can become immune from enforcement action after 4 years. That means it is considered to be lawful, as though planning permission had been granted for it.

The 4 year rule only applied to certain types of development, including:

• building works
• use of a building as a single dwellinghouse(s).

Other types of unauthorised development, including changes of use, only become immune after 10 years.

It’s important to note that if enforcement action is taken against an unauthorised development within the 4 or 10 year period (as applicable), the time limit will no longer apply and it will never become immune.

When is the 4 year rule relevant?

There’s two main scenarios in which the 4 year rule is relevant. These are:

Appealing an enforcement notice

If a Local Planning Authority (that’s normally your local council) suspects there has been a breach of planning control*, they are entitled to issue an enforcement notice. The notice will tell you what the breach is and what you need to do about it. Usually, the notice will require you to cease an activity and/or return the site to the condition it was in before the breach took place.

*In most cases, the breach of planning control will be unauthorised building works – such as a new building or the alteration/extension of an existing building – or an unauthorised use of a site/building – such as a shop that has been converted to use as a house or flat. It could also be a combination of unauthorised building works and unauthorised use/s.

When you receive an enforcement notice, you have only two options –

1. Appeal the enforcement notice OR
2. Comply with the enforcement notice.

If you choose to appeal the notice, then one of the grounds of appeal is that the time limit to take enforcement action – 4 or 10 years – had already expired by the time the enforcement notice was issued.

If you wish to rely on this ground of appeal, the burden of proof is on you to demonstrate that the breach of planning control occurred at least 4 years ago. You will only win the appeal if your evidence proves – on the balance of probabilities – that this is the case. “On the balance of probabilities” means it is more likely than not – i.e. there is at least a 51% likelihood – that the breach occurred 4 or more years ago.

Click the button below to find out more about appealing an enforcement notice.

Applying for a Lawful Development Certificate

A Lawful Development Certificate (LDC) is a legal document that confirms a development is lawful and immune from enforcement action.

So if you own a site containing unauthorised development that is at least 4 or 10 years old (depending on which rule applies), you could apply for an LDC. As with enforcement cases, the burden of proof is on the applicant to demonstrate that the unauthorised development occurred at least 4 years ago. You will only receive an LDC if your evidence proves – on the balance of probabilities – that this is the case. “On the balance of probabilities” means it is more likely than not – i.e. there is at least a 51% likelihood – that the development occurred 4 or more years ago.

There are many good reasons to apply for an LDC. They are often required if you are trying to sell a property that contains unauthorised development, for example.

Click the button below to find out more about applying for an LDC.

The government has also published its own guidance on Lawful Development Certificates which you can access by clicking the button below.

Can I still rely on the 4 year rule?

On 25th April 2024, the 4 year rule ended in England and was replaced by the 10 year rule. The 4 year rule can still be used but only in the following circumstances:

The breach of planning control – whether that’s building works or use as a single dwellinghouse – occurred on or before the 24th April 2024.

The breach will still need to have been in place – continuously! – for at least 4 years in order for the 4 year rule to apply. Here’s a few worked examples:

The scenarios

1. A homeowner adds a large, two-storey extension to their home without planning permission. Construction is complete on 1st April 2020.
2. A shop is converted to two flats in May 2015 and remains in use as two flats today. Over that period, the flats have been occasionally vacant, whilst searching for new tenants and carrying out renovation works.
3. A new warehouse is built on an existing industrial site in 2024. The walls are finished by 24th April 2024 but the roof and windows are not completed until 30th April 2024.
4. A large outbuilding is constructed in the grounds of a public house in March 2024. The outbuilding is leased to a local entrepreneur who uses it as a beauty salon.

The answers

1. The 4 year rule does apply and the homeowner could make use of it now because:
   • The breach of planning control is building works.
   • It took place before 24th April 2024.
   • It has now been in place for at least 4 years.
2. The 4 year rule does apply and the property owner could make use of it now because:
   • The breach of planning control is use as a single dwellinghouse (it doesn’t matter how many).
   • It took place before 24th April 2024.
   • It has now been in place for at least 4 years.
   • Continuous use is not the same as continuous occupation. In this case, the flats were still flats during the brief periods of vacancy.
3. The property owner could not make use of the 4 year rule because:
   • Although construction had started by 24th April, the building was not “substantially complete” until 30th April. So it is now subject to the 10 year rule and would not become immune from enforcement action until 2034.
   • Even if the warehouse had been substantially complete by 24th April, it would still need to be in place for at least 4 years before it could rely on the 4 year rule – so 2028.
4. The property owner could not make use of the 4 year rule because:
   • There are two breaches of planning control. The construction of the outbuilding is a type of building work and so it could rely on the 4 year rule. However, its use as a beauty salon is a change of use and this is subject to the 10 year rule.
   • The owner could potentially use the 4 year rule to keep the outbuilding but they would have to cease its use.

Please note: there are lots of other variables that could potentially alter this advice.

The burden of proof

No matter the circumstances, the burden of proof is always on the owner/applicant. In all cases, you will need to provide evidence that:

• The unauthorised development occurred on or before 24th April 2024.
• The unauthorised development occurred continuously for at least 4 years.
• That unauthorised development is still in place/ongoing today*.

In the case of building works, that evidence can include dated photographs, dated Google Streetviews and Google Earth aerial images, building control applications (and associated correspondence) and dated invoices from your contractors.

For use as a single dwellinghouse, that evidence can include dated photographs, Council tax bills, utilities bills (gas, electric, broadband etc.), tenancy agreements, sales/lettings particulars.

*this is important because you can only apply for a Lawful Development Certificate for an existing or proposed use/development. You cannot apply for something that occurred or existed in the past but was subsequently abandoned or demolished.

Is the 4 year rule due to be totally scrapped?

At the present time, there are no plans to completely scrap the 4 year rule. As far as we are aware, unauthorised developments that occurred on or before 24th April 2024 will be able to make use of the 4 year rule indefinitely.

However, this could always change.

What is the “continuous” rule?

The “continuous” rule applies more to unauthorised uses than to unauthorised building works. Basically, in order for the 4 year rule to apply, the use has to have occurred continuously over the relevant 4 year period. Continuous use is not the same as continuous occupation, however.

Once the 4 year period has been achieved, the use doesn’t necessarily need to have remained “continuous” but it can’t have been abandoned.

It’s easiest to explain this with a few examples:

Example 1

A shop is converted to a house in 2015. The house is put up for sale in 2016, marketed as a house. It remains empty and on the market for 3 years and is viewed various times over that period. It is purchased in 2019 but spends a year undergoing renovations. The new owner finally moves in with their family in 2020.

In this scenario, the shop has been in continuous use as a single dwellinghouse since 2015. This is because it was still a house during the periods of marketing and renovation. It was marketed (and viewed) as a house and the renovations were carried out to support and enhance its use as a house. A house doesn’t cease to be a house just because it is vacant whilst awaiting purchase and nor does it cease to be a house because it is being decorated.

Example 2

An old barn in the countryside is used as a second home by a family whose main home is located roughly 50 miles away. The family stay in the building for around 2 weeks at a time, approximately 4 or 5 times per year. They have used the building in this way for at least 6 years.

In this scenario, the building has been in continuous use as a single dwellinghouse for at least 6 years. This is because a second home is a type of single dwellinghouse. By definition, a second home is additional to a person’s main residence. So the periods of in-occupation are part and parcel of its specific use.

Example 3

A pub is used continuously as a dwelling from 2012 – 2019. In 2019, it is sold to new owners who return it to use as a public house. This use ends again in 2022 and the pub is occupied continuously as a dwelling until 2024.

In this scenario, the 4 year period would run from 2022 onwards. Although the pub was in continuous use as a dwelling from 2012 – 2019, this use was abandoned when it returned to use as a public house in 2019. Therefore, the residential use of the property from 2022 is to be treated as a brand new breach of planning control, rather than a continuation of the breach that occurred from 2012 – 2019. Provided no enforcement action is taken first, the residential use that began in 2022 would be able to make use of the 4 year rule in 2026.

Example 4

An office is converted to 3 flats in 2015. The flats are continuously occupied by a range of tenants until 2020. Because of personal circumstances, the owner decides to end the tenancies in 2020 and spends the next 3-4 years living abroad. The building is left vacant and unused whilst the owner is out of the country. The owner returns in 2024 and starts looking for new tenants for the flats.

In this scenario, the owner should still be able to rely on the 4 year rule. This is because the residential use was continuous for more than 4 years from 2015 – 2020. The use then became dormant until 2024 but it was never abandoned.

The concept of “abandonment” deserves a news article of its own – we hope to cover this soon!

Please note: there are lots of other variables that could potentially alter this advice.

If you require assistance with a potential 4 year rule case, please get in touch today. Our initial advice is always free of charge.