Lawful development certificate appeal: what to do when the council says no

 

A lawful development certificate appeal is what you make when the council refuses to certify that something is lawful, or simply never gets round to deciding. The appeal goes to the Secretary of State, and in practice a planning inspector who had nothing to do with the original decision makes the call.

This is not an argument about whether what you have built or want to build is a good idea. A certificate answers one question and one only: is this lawful? Planning policy, what the neighbours think and how the street looks do not come into it.

The unusual thing about an ordinary section 191 or section 192 appeal is the deadline: there is normally no statutory one. A listed building lawful development certificate appeal is different and must be made within six months.

 

When you can make a lawful development certificate appeal

 

There are three situations that open the door.

• the council refused your application outright
• the council refused it in part, which includes changing the wording of what you asked about or swapping in a description of its own
• for an ordinary section 191 or 192 certificate, the council did not decide within eight weeks counted from the day after it received a valid application; for a listed building lawful development certificate, the equivalent period is six weeks, unless a longer period was agreed in writing

Only the person who made the application can appeal. If you are a neighbour who is unhappy that somebody else has been given a certificate, there is no appeal for you, which is the same position as with an ordinary planning application.

One trap is worth knowing about if the council has gone quiet. You and the council can agree in writing to give it longer to decide, but only while you have not yet appealed. Once your appeal is in, that door closes.

 

There is normally no statutory deadline for a section 195 appeal

 

For an ordinary certificate under section 191 or section 192, there is currently no statutory time limit for an appeal under section 195. The Planning Inspectorate nevertheless says it expects a timely appeal, usually within six months of the council’s decision or failure to determine.

The position is different for a listed building lawful development certificate under section 26H of the Planning (Listed Buildings and Conservation Areas) Act 1990. An appeal under section 26K must be received within six months of the decision notice or, for non-determination, within six months of the date by which the council should have decided the application.

The absence of a statutory deadline for the ordinary section 195 route should therefore be treated as flexibility, not an invitation to leave the case indefinitely.

Delay costs you in ways the rules do not. Your case usually rests on proving what was happening on your land and when, and that gets harder every year as paperwork goes missing, memories fade and the people who could have backed you up move away. There is also a harder edge to it. If the council loses patience and serves an enforcement notice, and that notice takes effect, you cannot get a certificate for the same matter at all. That block does not apply while the notice is itself under appeal, but it is not a position you want to find yourself in.

For comparison, a tree preservation order appeal gives you 28 days, an advertisement consent appeal gives you eight weeks, and a listed building consent appeal gives you six months.

 

You have to prove it, not the council

 

The burden sits squarely on you. You have to show that what you are claiming is more likely than not to be true, and if you cannot, the appeal fails. The council does not have to disprove anything.

Your own account can be enough on its own. The familiar authority is F W Gabbitas v Secretary of State for the Environment and Newham LBC [1985] JPL 630. The applicant’s evidence does not have to be independently corroborated merely because it comes from the applicant. The principle was expressly revisited in O’Flynn v Secretary of State for Communities and Local Government [2016] EWHC 2894 (Admin), where Lang J explained that Gabbitas concerned the improper rejection of unchallenged evidence without reasons and the imposition of an independent-corroboration requirement. If there is no evidence which contradicts it or makes that account less probable, sufficiently precise and unambiguous evidence can satisfy the balance-of-probabilities test by itself.

That does not mean a bare assertion must be accepted. Vague recollections, unexplained gaps and round numbers can still leave the applicant short of the required standard, and contradictory evidence must be weighed. In practice, contemporary material created for another purpose – bills, delivery notes, bank statements, dated photographs, electoral-roll entries and named witness evidence – usually makes the case much more robust.

The Liverpool HMO appeal at 30 Balmoral Road is a useful recent example. The Inspector found that licensing records, marketing details, tenancy documents and a neighbour’s statement did not form a sufficiently precise and unambiguous ten-year evidential chain for the claimed seven-person sui generis HMO.

Take the honesty of it seriously. Making a statement you know to be false or misleading in order to get a certificate, or holding back something material, is a criminal offence in its own right.

 

You can bring new evidence, which is not true of every appeal

 

The expanded Part 1 procedure introduced for most post-April 2026 planning appeals does not apply to lawful development certificate appeals. The Planning Inspectorate now publishes a separate procedural guide specifically for certificate appeals.

That guide still expects the appellant to put forward a clear case and not deliberately hold evidence back for later. But if relevant new material does arise, the Inspectorate can consider it and must manage the process so that the other parties have a fair opportunity to comment. That is materially different from the expedited Part 1 planning appeal route.

 

How it is decided

 

Where the argument is really about the meaning of facts everyone agrees on, written representations will usually do, and the whole thing happens on paper.

Where the facts themselves are in dispute, these appeals often go to an inquiry, so that evidence can be given properly and witnesses questioned. At an inquiry anyone with an interest in the land is entitled to attend and to give evidence. Questioning other people’s witnesses is narrower: you and the council can do it as of right, and anybody else only if the inspector allows it. The inspector can also let other people take part, and is not allowed to refuse that unreasonably.

One rule has bite since April 2024. If the inspector thinks you are the reason the appeal is dragging, you can be given notice to get on with it, and if you do not, the appeal can be dismissed. Gather your evidence before you appeal, not while the appeal is running.

 

What it costs

 

The money mostly goes on evidence rather than on the appeal itself. Statutory declarations, a surveyor, sometimes a solicitor to pull together a paper trail going back a decade. If the case is going to an inquiry rather than being decided on paper, the cost climbs again.

Each side normally pays its own way. Where one side has behaved unreasonably the other can ask for its costs, which our page on the award of costs in an appeal explains.

Application fees are a separate matter and are set nationally rather than by your council, so they do not vary depending on where you live. See our page on planning application fees.

 

If the appeal fails

 

There is no second appeal. What is left is a challenge in the High Court, and only where the decision went wrong in law rather than simply going against you. Thinking the inspector weighed the evidence badly is not a point of law.

That challenge has to be brought within six weeks, and it is a short and unforgiving window compared with the appeal itself, which had none. Our page on judicial review explains what is involved.

 

Is an appeal the right move?

 

Often it is not, and the absence of a deadline is exactly why. With most refusals you appeal because the clock is running. Here it is not, so you can go away, find the evidence that was missing, and simply apply again. A second application with a proper paper trail behind it beats an appeal built on the same thin material that failed the first time.

It is also worth checking that you want a certificate at all. If your real argument is that what you are doing ought to be allowed, rather than that it is already lawful, you are on the wrong road entirely and what you need is planning permission. An inspector cannot give you a certificate out of sympathy.

See also our pages on a certificate for an existing use and the ten year rule, on a certificate for a proposed use, and on a certificate for proposed works to a listed building. If you have been refused planning permission rather than a certificate, start with what to do when a planning application is refused.

 

 

Relevant legislation for a lawful development certificate appeal

 

Links below go to legislation.gov.uk. Always check the “Changes to Legislation” panel at the top of each provision, because amendments are often listed there before they are written into the text.

• Town and Country Planning Act 1990, section 195: the right of appeal, the power to set a deadline by development order and the 28 day floor if one is ever set, and the power to dismiss an appeal for undue delay
• Town and Country Planning Act 1990, sections 191 to 194: what a certificate is, the bar where an enforcement notice is in effect, and the offence of making a false statement
• Development Management Procedure (England) Order 2015, article 39: how the application is made, the council’s eight week period, and the fact that no appeal deadline is prescribed
• Enforcement (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002: the inquiry procedure that certificate appeals run under, including who may appear and who may question witnesses

Other Planning Appeal Sections

 

The wording of the certificate can itself be decisive. If the dispute concerns what an existing certificate actually authorises, start with the certificate and anything it clearly incorporates rather than assuming that old application correspondence forms part of it. Our CLEUD guide explains Kerr v Welsh Ministers [2026] EWHC 1070 (Admin) and the distinction between evidence proving lawfulness and wording defining the certified use.

 

Lawful Development Certificate Appeal Page Updated: 4th September 2026