Lawful Development Certificates
| Author | William Webster |
| Pages | 325-331 |
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 operations
he may apply
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).
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
326 Planning Law: A Practitioner’s Handbook
of existing use or development (CLEUD),
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)
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...
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