In a complex and evolving planning system it is not always certain whether building works or property use changes do not, or no longer, require planning permission. Sometimes there may be difference of opinion with the local planning council. Such uncertainty can lead to a risk of planning enforcement and delays in future property sales. However, such uncertainty can be avoided by applying for a lawful development certificate from the council. This guide will help you assess whether you need, and can apply for, a lawful development certificate.
What is a Lawful Development Certificate?
There are 2 types of lawful development certificates issued by a local planning authority. These are:
- Certificates of Lawfulness of Existing Use or Development (CLEUD) – given where the existing use of buildings or land, or operations carried out on land, or the failure to comply with any condition or limitation attached to a planning permission is lawful
- Certificate of Lawfulness of Proposed Use or Development (CLPUD) – given where the proposed use of buildings or land, or any proposed operations to be carried out on the land is lawful
When is a CLEUD issued?
A CLEUD is issued where there is a lawful development. This means a development in which no planning enforcement action can now be taken by the local planning authority. An enforcement notice (which is in force) will prevent a CLEUD being issued.
Typically, a CLEUD is applied for where an otherwise unlawful development is now immune from enforcement action. The immunity periods for unlawful developments are:
- Four years – the substantial completion of building, engineering, mining or other operations on the land
- Four years – a change of use of any building, or any part of a building, to use as a single dwelling house (including a failure to comply with a condition or limitation of such kind in a planning permission)
- 10 years – all other breaches of planning control including: material change of use (other than a change of use to a single dwelling house); continuing breach of condition (except a condition preventing the change in the use of any building to use as a single dwelling house).
Determination as to whether a development is lawful depends entirely on the facts about the history and planning status of the use or operations. Planning merits are irrelevant. The onus is on the applicant to prove, on the balance of probability, that a CLEUD ought reasonably to be issued.
A refusal of an application is not necessarily conclusive that something is not lawful, it may simply mean that insufficient evidence has been presented to satisfy the council that the use, operation or activity is lawful.
To substantiate a claim for a CLEUD, the following information will usually be provided:
- information relating to council tax or electoral records
- invoices/bills from services such as water, electricity, gas or phone
- statutory declarations from applicants, former owners and neighbours
- photographs which can be dated
- factual historical information and evidence that confirms when the use or development commenced and its continuation through the relevant period
When is a CLPUD issued?
A CLPUD is issued for any development which does not require further planning permission. Planning permission is not required for any work or use that:
- does not constitute development under section 55 of the Town and Country Planning Act 1990 (“the TCPA”)
- is exempt from the need for planning permission under section 57 of the TCPA
- benefits from a general planning permission granted by the Town and Country Planning (General Permitted Development) (England) Order 2015 or by a simplified planning zone or enterprise zone
- benefits from deemed planning permission, whether under section 90 of the TCPA (government authorisation) or by virtue of compliance with the requirements of an effective enforcement notice
In considering whether to issue a CLPUD the council must ask itself:
“If this proposed change of use had occurred, or if this proposed operation had commenced, on the application date, would it have been lawful for planning purposes?”
In asking this question the council will not only consider whether the proposal would involve development requiring an application for planning permission but also whether it would involve a breach of any existing condition or limitation imposed on a grant of an implemented planning permission.
Effect of a Lawful Development Certificate
A lawful development certificate means:
- the lawfulness of any use, operations or other matter for which a CLEUD is in force shall be conclusively presumed
- the lawfulness of any use or operations for which a CLPUD is in force shall be conclusively presumed unless there is a material change, before the use is implemented or the operations are begun in any of the matters relevant to determining such lawfulness
The council may at any time (without compensation arising) revoke a CLEUD or CLPUD if, on the application for the certificate, a statement was made or document used which was materially false or any material information was withheld. In addition, if you knowingly or recklessly make a statement which is materially false or withholds material information you may be guilty of an offence (on summary conviction you may be liable to the statutory maximum fine or on indictment to an unlimited fine or two years’ imprisonment).
An appeal can be made to the Secretary of State if the council:
- refuses in whole, or in part, to grant a CLPUD or CLEUD
- fails to determine the application for a CLPUD or CLEUD within eight weeks (or such longer period as may be agreed)
In addition there is a right to judicial review any decision of the Secretary of State or approval by the council. Such application must be brought within six weeks of the date on which the grounds for the claim first arose.
