What are the different types of certificates of lawfulness and why would I apply for one?
A local planning authority will issue a certificate of lawfulness of existing use or development (CLEUD) to confirm that existing uses, operations or the non-compliance with a planning condition are lawful. It is usually obtained to provide conclusive evidence that an existing use or development is lawful through long use or because a planning permission has been lawfully implemented.
In contrast, a certificate of lawfulness of proposed use or development (CLOPUD) is forward-looking – it will confirm if any proposed uses or operations would be lawful and wouldn’t need planning permission. Most recently, investors have been using this to confirm that a property can be used for any use within use class E, given the advantages of this for asset management purposes.
What should a certificate of lawfulness application include?
The application must specify the land and describe the uses (and not just by reference to the relevant use class), operations or matters that are in question, and include:
- an application form;
- a location plan;
- evidence verifying the information disclosed in the application;
- a statement relating to landowner interests; and
- where the application relates to multiple uses, operations or matters, a plan indicating the relevant part of the land that each use, operation or matter relates to.
While not a legal requirement, it is also prudent to include a supporting statement setting out how the relevant legal tests are met.
What do I need to demonstrate to show that the existing use is lawful due to long use?
A CLEUD application must show that:
- there was a change of use to the current use;
- the period for enforcement action has expired (four years for change of use to a single dwelling; 10 years for any other material change of use);
- the unauthorised use has been exercised continuously and without interruption for the four or 10-year period; and
- the use doesn’t contravene any enforcement notices in force.
It will be important to establish the relevant “planning unit(s)” in question (eg if the planning unit is each industrial unit or the whole industrial estate), as the above requirements will need to be met for each planning unit. In each case, what constitutes the planning unit will be a matter of fact and degree and is often the unit of occupation.
How do the requirements differ for establishing that a planning permission has been lawfully implemented?
A CLEUD application will need to demonstrate that the following conditions have been satisfied:
- a “material operation” has been carried out by the implementation date and such works were more than de minimis. A material operation is defined in statute and includes, for example, the demolition of a building or digging foundation trenches;
- the works must form part of the development permitted under the permission – this can be demonstrated by carrying out works shown on the approved plans;
- all relevant pre-commencement planning conditions must have been discharged; and
- the works must have been carried out in accordance with all relevant planning conditions.
What evidence should I submit to show that these tests have been met?
It is the applicant’s responsibility to provide sufficient information for the LPA to determine the application, otherwise the LPA can refuse it.
Statutory declarations from relevant individuals, providing any necessary background and the history of the uses or operations, will be especially important. For existing use applications, further evidence could include council tax or business rates payments, utility bills, tenancy agreements and dated photographs of the property in use. For implementation-related applications, dated photographs of various stages of the works, building contracts, invoices and correspondence with contractors are useful evidence.
The LPA can only consider the facts of the case and planning law. Planning merits are irrelevant.
What about the tests and evidence needed to demonstrate that proposed uses or operations are lawful?
The LPA will need to determine whether, if the proposed change of use or operation took place on the application date, it would have been lawful for planning purposes. To do this, the LPA will consider whether the proposal will:
- constitute development for which planning permission is required;
- benefit from deemed planning permission (eg through permitted development rights); and
- breach any planning conditions or obligations.
Again, the planning merits aren’t considered. Any CLOPUD application will need to address all of these points.
Will the LPA consult third parties as part of the application?
There is no statutory requirement for LPAs to consult third parties as planning merits aren’t considered as part of the application. However, LPAs are entitled to obtain their own evidence to assist with determining an application. This could include speaking with third parties such as parish councils and neighbours if the LPA believes that these third parties may have relevant information. The National Planning Policy Guidance mentions that any evidence the LPA obtains should be shared with the applicant and they should be given a chance to comment.
When must the LPA issue its decision and are there any details it must include?
The statutory determination period for a CLEUD or CLOPUD application is eight weeks following the day after receipt of the application, or such extended period as is agreed between the parties.
Any certificate granted must take a prescribed form, and specify the application date, the land to which it relates, and the use, operation or other matter in question and why these are lawful. An LPA can issue a certificate for a different description to that applied for (eg if it considers that only some of the existing uses are lawful), but the NPPG recommends that the LPA seeks the applicant’s agreement to this.
The LPA must give reasons for any refusal. This could be because the uses or operations are not lawful, or simply because insufficient information was provided so that the LPA couldn’t determine their lawfulness. It will be important for an applicant to assess the merits of any CLEUD application before it is submitted, as there is a risk that an LPA could take enforcement action if it refuses an application because the use or operation is not lawful.
Can the LPA modify or revoke a certificate once granted?
There is no statutory power enabling LPAs to modify certificates. However, the High Court has previously held that it was lawful for an LPA to issue a replacement certificate where it had made an obvious error and the basis, nature and effect of the LPA’s decision wasn’t affected by the error (R (on the application of Fowler) v Arun District Council [1998] JPL 674).
An LPA can revoke a certificate at any time if, as part of an application:
- materially false statements or documents were made or used; or
- material information was withheld, whether deliberately so or not (R (on the application of Ocado Retail Ltd) v London Borough of Islington and others [2021] EWHC 1509 (Admin)).
Before doing so, the LPA must serve a notice on certain people, including the owner or anyone who will be affected by the decision, who will then have 14 days to send any representations to the LPA. No compensation is payable if a certificate is revoked, and the LPA could take enforcement action.
It is also an offence to knowingly or recklessly make a statement which is materially false or misleading, or to intentionally deceive by using any document which is materially false or misleading or by withholding any material information.
Is there a right of appeal?
An applicant can appeal against the refusal, in whole or part, of a certificate, or if the LPA hasn’t determined the application within eight weeks or such other agreed extended period. There is no deadline within which to submit an appeal. If an appeal is made against a partial refusal, the secretary of state can’t revoke the certificate granted in respect of the other part of the application.
An LPA’s decision to revoke a certificate can’t be appealed. The only recourse is to lodge a judicial review challenge in the High Court.
A previous version of this article appeared in EGi on 24 May 2022
Authored by Caroline Stares.
