Many but not all building and other operations on land and changes of use of land need planning permission. Sometimes questions arise as to whether something that has been done or is to be done is covered by a particular planning permission. In other cases, there may be questions as to whether development complies with a condition of permission, perhaps as to commencement or something required before development begins. In other cases there may be no permission for something that needed it but it has become lawful by the expiry of the planning authority’s time limit for taking enforcement action against it. When these and any other questions arise as to whether development was or would be lawful, an application can be made to the local planning authority for a certificate of lawfulness.
There are two types of Certificate:
1) Certificate of Lawfulness of Existing Use or Development (CLEUD) – this certificate confirms the lawfulness, for planning purposes, of existing operations on, or use of, land. Applications for CLEUDS are made under s. 191 of the Town and Country Planning Act 1990 (TCPA 1990).
2) Certificate of Lawfulness of Proposed Use or Development (CLOPUD) – this is a certificate which confirms that a proposed use of or operation on land is lawful. Applications are made under s192 of the TCPA 1990.
Time limits
The time limits for taking enforcement action and therefore for matters becoming lawful are:
• Four years (from date of substantial completion) for the construction of a new building or other operations (except demolition, for which there is no time limit);
• Four years (from date of breach) for the change of use of a building to a single dwelling;
• Ten years (from date of breach) for the change of use of a building or land to any use other than a single dwelling and for a breach of a condition of planning permission
To be lawful a changed use must have been continuous to the date of the application.
Deliberate Concealment
The Localism Act 2011 gave additional powers to planning authorities to take enforcement action after the expiry of the time limits set out above. These powers allow the LPA to take enforcement action against breaches of planning control which have been deliberately concealed even after the relevant time limits have expired.
Standard of Proof
The applicant must prove the case on the balance of probabilities. The decision must be based solely on evidence and law; the LPA cannot consider the planning merits of the development or the impact of any planning policies. If the LPA has no evidence of its own and the applicant’s evidence is precise and unambiguous, then the certificate should be granted.
Evidence is usually submitted in the form of statutory declarations with any supporting documentation annexed. This often gives the LPA a greater degree of comfort in terms of its ability to ‘rely’ on the evidence than mere statements.
Misinformation and worse
A local planning authority may revoke a certificate if a false statement that was material was made in the application or material information was withheld.
It can be an offence under s.194 of the TCPA 1990 to make or use false or misleading statements or to withhold material information for the purpose of procuring a certificate of lawfulness. The penalty for such an offence on summary conviction is a fine not exceeding the statutory maximum and on conviction on indictment to imprisonment for a term not exceeding two years, or a fine, or both.
Procedure
Applications must be made on the appropriate form (downloadable from local planning authority websites) and be accompanied by a plan identifying the land to which the application relates, information about the applicant’s knowledge of interests in the of land, evidence to support the claim and the appropriate fee.
There is no requirement for the LPA to consult on or publicise an application for a certificate of lawfulness though in practice many do in order to test the evidence submitted.
Requirements other than planning
The grant of a certificate applies only to the lawfulness of development in accordance with planning legislation. It does not remove the need to comply with any other legal requirements such as The Building Regulations 2010, the Planning (Listed Buildings and Conservation Areas) Act 1990 or other licensing or permitting schemes.
Changes of circumstance after an application for a certificate of lawfulness.
A CLEUD and a CLOPUD each certify lawfulness at the date of the application. If there are changes of circumstance after the date of the application such as a change of use or a change to a relevant part of the General Permitted Development Order, the certificate may no longer be relied upon.
If a certificate is refused
A refusal can be appealed to the Planning Inspectorate.
A refusal does not preclude a further application which in practice is often accompanied by additional evidence to address concerns expressed with the first application.
Enforcement action
If the local planning authority has issued an enforcement notice before an application is made for a certificate of lawfulness, the application cannot be made unless the notice is first withdrawn or quashed. Instead, the issue of lawfulness can be raised as a ground of appeal against the notice but care is needed with the short time limit for beginning an appeal.
Whether to apply instead for planning permission
If the applicant proves that the subject of the application is lawful, the local planning authority must issue the certificate of lawfulness. Whether it satisfies the criteria for a grant of planning permission is irrelevant. In some cases, the planning merits of that which is lawful are too weak to warrant an application for planning permission but in others such an application may be a reasonable alternative. Planning permission has the benefit that it is not as exposed to (a) changes of circumstance after the application and (b) particularly for a purchaser of the land, to revocation if there was a false or withheld material information. On the other hand, planning permission, unlike a certificate of lawfulness, may be subject to conditions restricting the use or development. A planning application may meet with objectors trying to persuade the local planning authority how to exercise its judgment in assessing the planning merits whereas objectors to an application for a certificate of lawfulness are restricted to facts relevant to lawfulness. A planning application has to be publicised whereas an application for a certificate of lawfulness, at the discretion of the authority, may or may not be.
Disclaimer
These notes are for general information only. They do not cover every aspect of the subject. They do not cover all of the other subjects that may bear on the decision to act. Professional advice should be taken in every case. La Ronde Wright Ltd does not give any warranty for reliance upon these notes. Please contact us if you would like to discuss how this advice affects you.
February 2015
© La Ronde Wright Ltd
