We have been dealing with a number of financing transactions recently where planning permission was obtained for residential development between 2006 and 2008, containing a condition that the permission needed to be implemented within 3 years. Due to the lack of funding available in recent times, some developers have been commencing the developments shortly before expiry of the permission and then a period of 12 to 18 months has elapsed before the developers are in a position to build out the development in full. Consideration has had to be given as to whether our lending clients are comfortable that the permissions have been implemented or whether additional steps need to be taken to evidence this.

Section 191 of the Town and Country Planning Act 1990 (the Act) (as amended) allows applications to the Local Planning Authority (LPA) for the issue of certificates of lawfulness for existing use or development (CLUED). This provides a statutory mechanism for obtaining confirmation that an existing use of land, some operational development, or some activity in breach of a planning condition, is lawful and consequently immune from enforcement action.

Lawfulness

The grant of a CLUED only applies to the lawfulness of the development. It does not remove the requirement to comply with other legal requirements such as consents required under the Conservation Areas Act 1990. Lawfulness for this purpose is determined on the basis that the proposal would be lawful if instituted or begun at the time of the application without the need for any further planning permission or that any relevant time limits have expired. In order to be granted there must be no enforcement notice in force.

Application

The application must be made in writing, using the prescribed form, and lodged with the LPA together with the required fee. The applicant is obliged to provide certain basic information, including:
• The land must be specified and a plan identifying the land must accompany the application.
• The applicant must set out their interest in the land and provide details of any others with an interest in the land stating whether or not they have been notified of the application.
• The use, operation, or other matter in question must be described.
• The applicant’s reasons for regarding it to be lawful.

In addition to the information required by the application form, the applicant should provide information in support of the application as it is for the applicant to demonstrate that the development would not have required planning permission in the first place, or if it did, that it is now immune from enforcement action.

The evidence necessary to prove the applicant’s entitlement to a certificate will depend on what is being applied for, but emphasis is on the applicant to convince the local authority that a certificate should be issued. Therefore, the evidence submitted should be clear and convincing. 

Where some questions of fact are involved, the LPA will usually expect to see statements from persons who have a direct knowledge of those facts. It is normal to require such statements in the form of a sworn statutory declaration.

In some cases letters or unsworn statements may be acceptable (for instance if there is some additional documentary evidence backing the statement). Letters may be acceptable if they back a sworn statement, but statements from owners or applicants which give crucial evidence should always be sworn in the proper form. Any other further evidence that can be provided will assist the application (such as photographs, invoices or documentation indicating the length of time it has been there).

Determination

The LPA has 8 weeks commencing on the day following receipt of the application, in order to determine it. If the LPA is satisfied that the unauthorised development is lawful and is accordingly not subject to enforcement action, it is a statutory requirement that a certificate be issued. In any other case the LPA will reject the application.

A successful application will result in a certificate being issued. The certificate identifies the land and the described the use, operations or other matter in question together with reasons as to why these are lawful.  

Appeal

A rejection of an application is largely due to insufficient evidence being lodged and so subsequent applications are permitted where the required evidence can be produced and no enforcement notice is in place.

If an application for a certificate is wholly or partly refused, or is granted in a different form from the application, or is deemed to have been refused (because the LPA has not determined the application within the time-limit of 8 weeks), an appeal may be submitted.
 
An appeal should be made only when all else has failed.  It is advisable that the applicant has discussions with the LPA during the course of the application.  If the applicant considers that making changes to the application could resolve the LPA’s reasons for refusal, they should discuss these with the LPA before appealing.  A further application to the LPA may be a more effective route.

Advantages

The CLUED application presents an attractive alternative to obtaining full retrospective planning permission which has the disadvantage of requiring publication of the application and notification of others who have an interest in the land.

CLUED applications are also of particular use to those participating in the housing market. Solicitors representing purchasers will usually require documentary evidence that works, such as conservatories, are lawful.  A CLEUD may assist with the sale of property by providing purchasers with the degree of comfort required to complete on a purchase.

Please note that this information is provided for general knowledge only and therefore specific advice should be sought for individual cases.

For further information, please contact Andy Parker at