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Certificates of Lawful Use operate as a useful tool for many of our clients when seeking to establish planning use and operations relating to their land and/or properties. While a certificate granted pursuant to Sections 191 or 192 of the Town and Country Planning Act 1990 (TCPA 1990) is not a planning permission, it can serve to provide legal certainty that specified uses or operations are lawful at a point in time. It can therefore be of particular importance when, for example, the lawful use of a property is questioned by a potential purchaser due to uncertainty of the lawfulness of previous works, or a change of use, or where there is a need to demonstrate that future works would be lawful.
Looking at the provisions in more detail, there are two types of certificates that can be applied for, depending on whether the operations or uses that an applicant wishes to establish as lawful, are existing or proposed:
- Section 191 of the TCPA 1990 entitles any person wishing to ascertain whether any existing use of buildings or other land is lawful, whether any operations which have been carried out in, on, over or under land are lawful, or whether any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful.
This is known as a Certificate of Lawfulness of Existing Use or Development (CLEUD).
- Section 192 of the TCPA 1990 entitles any person wishing to ascertain whether any proposed use of buildings or other land would be lawful or any operations proposed to be carried out in, on, over or under land would be lawful,
This is known as a Certificate of Lawfulness of Proposed Use or Development (CLOPUD).
Application for a CLUED
Essentially, when submitting a CLUED application, an applicant is seeking to prove by reference to supporting evidence that the use or operations which have been carried out on the land and/or which are situated on the land for such a period of time are now immune from enforcement action and are therefore lawful. The statutory provisions tell us that “lawful development” is development against which no enforcement action can be taken and which is not in contravention of any planning enforcement notice or breach of condition notice which is in force (see Section 191(2) and (3), TCPA 1990).
The relevant timeframes during which the user must have been carried out and/or the operations need to have been present on the land are as follows:
- four years in respect of a change of use of any building, or any part of a building, to use as a single dwelling house or building, engineering, mining or other operations in, on, over or under land; and
- ten years in respect of a material change of use (other than a change of use to a single dwelling house which is subject to the four-year rule above) or a breach of condition (except a condition preventing the change in the use of any building to use as a single dwelling house, which is subject to the four-year rule above).
As a general rule, if the local planning authority does not take enforcement action against any unauthorised use or operational development during the timeframes set out above, then the right to do so is lost and the unauthorised use or operations will become immune from enforcement action.
Article 39 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 sets out the contents of the application for a CLUED and how it must be submitted. An application needs to describe precisely what is being applied for and the relevant statutorily prescribed fee will be payable.
Unlike an application for planning permission, an application for a CLUED depends entirely on factual information relating to the history, use or operations carried out on or in the land, making planning merits thus irrelevant to the determination. As a guide, when submitting an application for a CLUED, the following information will be relevant to support the claim made and to demonstrate that it has been in use or the operations have been situated on the land for the relevant time period:
- statutory declarations from applicants, former owners and neighbours;
- council tax or electoral records;
- any relevant invoices or receipts for services relating to the use of the land or the operations carried out;
- photographic evidence which is clearly dated; and/or
- any other factual information and evidence that supports the application.
Once an application for a CLUED is submitted, the local planning authority is statutorily required to determine it within a period of eight weeks, unless that timeframe is extended by agreement in writing with the applicant. Where the local planning authority fails to determine the application in the timeframe given, a right of appeal to the Planning Inspectorate is available to the applicant.
Application for a CLOPUD
An application for a CLOPUD relates only to prospective or future actions or use of the land concerned. It is a useful way of ascertaining whether the intended use of land, perhaps by a future purchaser, would be lawful or, for establishing if certain operations could be carried out lawfully on the land, without the need for a further application for express planning permission.
The contents and requirements of an application for a CLOPUD, are as for an application for a CLUED, set out in Article 39 of the Town and Country Planning (Development Management Procedure) (England) Order 2015. As with a CLUED, a fee will be payable for an application for the CLOPUD and the local planning authority is required to determine the application within a statutory timeframe of eight weeks. An application must be submitted with supporting information and upon receipt, the local planning authority will consider whether the proposal would involve development requiring an application for planning permission or a breach of any existing condition or limitation imposed on a grant of an implemented planning permission. If, following a consideration of the information submitted, the local planning authority is satisfied that the proposed use or operations described in the application would be lawful, then the certificate must be granted.
It should be noted in relation to both applications for CLEUDs and CLOPUDs that it is an offence for an applicant to knowingly or recklessly make a statement in the application which is materially false or misleading, or intentionally deceive by using a materially false or misleading document or withhold material information.