Lawful Development Certificates

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Chapter 15

Lawful Development Certificates

CERTIFICATES OF LAWFULNESS OF EXISTING USE OR DEVELOPMENT

15.1 If any person wishes to seek clarification as to whether: (a) his use of land; or (b) any operations¹which have been carried out in, on, over or under his land; or (c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted, is lawful (and the relevant date for these purposes is the date on which the application is made),²

he may apply³to the local planning authority (LPA) for a certificate of lawfulness

¹There is a clear alignment between ‘use’ and ‘operations’ and the definition of development in

TCPA 1990, s 55, and the requirement to obtain planning permission for ‘development’ (Government of the Republic of France v Royal Borough of Kensington and Chelsea [2016] JPL 387 at [35]: this was a case where the court held that on a proper construction of Planning (Listed Buildings and Conservation Areas) Act 1990 (LBA 1990), s 26H, and TCPA 1990, Pt VII, s 192 (involving a certificate of lawfulness of proposed use or development) a landowner could apply for certificates of lawful development in respect of listed building consent and planning permission, respectively, so long as the time limit for the works’ implementation had not yet expired: the provisions were not restricted to certifying the lawfulness of proposed works).

²TCPA 1990, s 191(4) and (5)(d).

³TCPA 1990, s 191(1). Article 39 of the Town and Country Planning (Development Management

Procedure) (England) Order 2015 (DMPO) (or in Wales Town and Country Planning (Development Management Procedure) (Wales) Order 2012 (SI 2012/801), art 28), specifies the contents of an application and how it must be submitted along with other prescribed information about the application and its management through to the form of any issued certificate (for instance, art 39 covers valid and invalid applications, acknowledgment of applications, entitlement to require the applicant to provide further information, the timescale for determining the application (generally eight weeks beginning with the receipt of a valid application), the duty to give full reasons in the notice of decision for any refusal (together with information as to appeal rights) and the form of any issued certificate). There is a different application form for each type of certificate, but either type must be accompanied by sufficient factual information/evidence for an LPA to decide the application, along with the relevant fee. An application needs to describe precisely what is being applied for and the land to which the application relates. Without sufficient or precise information, an LPA may be justified in refusing a certificate. This does not preclude another application being submitted if more information can be produced. Although the applicant

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of existing use or development (CLEUD),⁴specifying the land and describing the use, operations and other matters. It should be noted that the grant of a certificate applies only to the lawfulness of the development and does not remove the need to comply with any other legal requirements.⁵

15.2 For these purposes, uses and operations are lawful (and the lawfulness of any use, operations or other matter for which a certificate is in force shall be conclusively presumed)⁶if: (a) no enforcement action may then be taken in respect of them (i.e. either because they did not involve development or require planning permission or because the time for enforcement action has expired⁷or for any other reason); or (b) they do not contravene any of the requirements of an enforcement notice then in force.⁸Similarly, any matter constituting a failure to
is responsible for providing sufficient information to support an application, the LPA may canvass evidence before determining the application which it must obviously share with the applicant who may, of course, wish to produce rebuttal evidence of his own. In the case of applications for existing use, if an LPA has no evidence itself, nor any from others, to contradict or otherwise make the applicant’s version of events less than probable, there is no good reason to refuse the application, provided the applicant’s evidence alone is sufficiently precise and unambiguous to justify the grant of a certificate on the balance of probability. An LPA is under no statutory duty to consult third parties, but it may, as indicated, be reasonable for it to seek evidence from third parties, such as parish councils or neighbours, although views on the planning merits of the application or whether the applicant has any private rights to be able to carry out the operation, use or activity in question are irrelevant when determining the application which will depend on whether, on the facts of the case and relevant planning law, the specific matter is or would be lawful (see NPPG at Paragraph: 005 Reference ID: 17c-005-20140306 to 17c-014-20140306).

⁴Lawful development certificates replaced ‘established use’ certificates in 1992. An application to convert an established use certificate to a lawful development certificate needs to be made like any other application for a certificate. The effect and value of any existing established use certificates remains unchanged, but they are not considered to have been made under s 191. The key difference is that the old style certificates could certify an established use and provide immunity from enforcement action, but not that the development was lawful (see NPPG at Paragraph: 014 Reference ID: 17c-014-20140306). It is possible, by application, to convert an established use certificate to a lawful development certificate.

⁵Such as the Building Regulations 2010, or the LBA 1990, as amended, or other licensing or permitting schemes.

⁶TCPA 1990, s 191(6).

⁷TCPA 1990, s 191(3A) draws in the new time limits in cases involving concealment (s 171BA) by providing that time will be taken not to have expired if: (a) the time for applying for a planning enforcement order has not expired; (b) an application has been made for such an order which has not yet been determined; or (c) a planning enforcement order has been made in relation to the matter and the enforcement year for the order has not yet expired.

⁸TCPA 1990, s 191(2). This subsection clearly defines what is or is not lawful for the limited purposes of the Act. In R v Epping Forest District Council ex parte Philcox [2002] PLCR 3, it was held that it does not matter that the activity may be unlawful for other reasons (as being in contravention of Environmental Protection Act 1990, s 33), yet still justifies the grant of a certificate. It may be added that an enforcement notice is not in force where an enforcement appeal is outstanding or an appeal has been upheld and the decision has been remitted to the Secretary of State for redetermination, but that redetermination is still...