Lawful Development Certificates - An Overview
Thursday, 11th August 2016
Lawful development certificates are certificates issued by local planning authorities which certify that a proposed or existing development is lawful. They can be useful to those thinking of developing their land and / or considering whether a proposed or existing use or operation is lawful, perhaps in anticipation of selling or purchasing land.
There are two types of certificate:
- Certificate of Lawfulness of Existing Use or Development ("CLEUDs") which certify that an existing use of buildings or land, or operations carried out in, on, over or under land, or the failure to comply with any condition or limitation attached to a planning permission is lawful; and
- Certificate of Lawfulness of Proposed Use or Development ("CLOPUD") which certify that a proposed use of buildings or land, or any proposed operations to be carried out in, on, over or under the land is lawful.
A CLEUD will be granted by a local planning authority only if the existing 'development' (which includes use of the land) is 'Lawful'. This means development:
- Against which no enforcement action can be taken; and
- That is not in contravention of any planning enforcement notice or breach of condition notice which is in force.
For example, a CLEUD can be granted in respect of a an existing use, which would initially have been unlawful (e.g. the use of a property as a two separate residential dwellings in breach of a planning condition that required it only to be used as a single residential dwelling) if enforcement action is time barred and no planning enforcement notice or breach of condition is in force. In this situation the grant of a CLEUD would confirm the lawfulness of the use of the property as two separate residential dwellings. The legal way of expressing the effect that the grant of a CLEUD has is that:
"the lawfulness of any use, operations or other matter for which a CLEUD is in force shall be conclusively presumed"
In determining whether a CLEUD should be issued, the local planning authority determines whether, on the facts of the case (including planning history), the relevant matter is or would be lawful. It is for the applicant to prove, on the balance of probability, that a CLEUD ought reasonably to be issued. Relevant evidence may include:
- Statutory declarations from neighbours, applicants and / or former owners.
- Electoral or Council Tax records.
- Utility Bills.
- Any other factual information / evidence confirming the date at which the development or use commenced and its continuation during the relevant period.
In determining a CLOPUD application, the local planning authority must issue the CLOPUD if it is satisfied that the answer to the following question is 'Yes':
If this proposed change of use had occurred, or if this proposed operation had commenced, on the [CLOPUD] application date, would it have been lawful for planning purposes?
Answering this question will involve the local planning authority considering:
- Whether the proposal would involve development requiring an application for planning permission.
- Whether it would involve a breach of any existing condition or limitation imposed on a grant of an implemented planning permission.
The legal way of expressing the effect that the grant of a CLOPUD has is that the :
"Use or operations for which a CLOPUD 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"
An example of a material change is a change to relevant permitted development rights.
Appeal and Challenge
An appeal can be made to the Secretary of State by an applicant if a local planning authority:
- Fails to determine the application for a CLEUD or CLOPUD within eight weeks (or such longer period as may be agreed).
- Refuses in whole, or in part, to grant a CLEUD or CLOPUD.
In addition a third party may challenge the grant of a CLEUD or CLOPUD by way of judicial review.
Revocation of a CLEUD or a CLOPUD
A local planning authority may revoke a CLEUD or CLOPUD if, in respect of the relevant application:
- A statement was made or document used which was false in a material particular;
- Any material information was withheld.
There is no time limit on revocation and no compensation is payable.
In addition any person who knowingly or recklessly made such a statement, used such a document or withheld material information is guilty of an offence. The maximum penalty for which is an unlimited fine or two years' imprisonment.
Our experienced Planning Team advises on all aspects of planning law, including CLEUDs, CLOPUDs and enforcement.