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Certificate of Lawfulness

A Certificate of lawfulness is a legal document stating the lawfulness of past, present or future development. You might need a lawful development certificate if you are using a property for a prolonged period of time without planning permission or need to establish that the current use of the building is indeed lawful or if the proposed use of the building is lawful.

There are two types of Certificate that can be applied for –

  • Certificates of Lawful Existing Use or Development (CLUED or CLEUD)
  • Certificates of Lawful Proposed Use or Development (CLOPUD)

The planning merits raised by these applications are not for consideration. It is simply a matter of evidence, fact and legal consideration.

Note that this article is still valid in early 2024. At some point the four year rule will cease and everything will be a ten year rule.

If you need a certificate of lawfulness, we urge you to make contact ASAP so that we may assist you. The clock is often ticking on these.

Certificate of lawfulness or lawful development certificate

 

 

What is a Certificate of Lawfulness?

A Certificate of Lawfulness is a legal document issued by the local planning authority (LPA) that is generally used to regularise unauthorised development and prevent enforcement action being taken against any breach of planning policy or conditions. Importantly this is not retrospective planning permission.

The certificate establishes that an existing use, operation or activity named in it is lawful and as such cannot be enforced upon. This might be valuable in the event of selling the property or taking a mortgage on it etc. A common use might be to obtain a lawful development certificate after erecting an extension built under permitted development to prove that it is legal. Another common case is where a planning condition was never dealt with and so after 10 years action could no longer be taken by the local authority.

It can also be used to establish if a current use of the building is legal. For example to establish if the current use of the building is legal as offices.

The final purpose is whether the proposed use or expansion of the building in the future will be legal and not require any further planning permission. So for example in a conservation area you might apply for a LDC before erecting an extension to ensure that the proposed scheme still falls under permitted development. Refusal does not mean that it is not possible, it just means that planning permission is required (assuming that the decision is correct). You can also appeal against refusal to issue a Certificate of Lawfulness.

 

Enforcement Notice

Can you apply for a LDC if an enforcement notice has been issued? Section 191(2) of the Town and Country Planning Act 1990 states that a use or operation is not lawful where there is an enforcement notice and as such an lawful development certificate cannot be issued. However if the enforcement notice is being appealed or has been sent to the Secretary of State for redetermination then the enforcement notice is not in force and so a lawful development certificate could be applied for.

 

Timescales – 4 or 10 years?

There are minimum time periods for eligibility depending on the type of development. Generally the period is 10 years for commercial and changes of use except in the case of a single dwelling house and then it is a four year rule. The breach of planning must be continuous and current. You must prove the the time limits have been exceeded. This might be rental agreements, council tax, invoices from the works, dated photographs, leases, electoral roll, utility bills, accounts and more…..   The more evidence you have the better.

  • 4 years for building, engineering, mining or other operations in, on, over or under land, without planning permission. This development becomes immune from enforcement action four years after the operations are substantially completed. This includes the erection of a new building.
  • 4 years for a material change of use of a building, or part of a building, to use as a single dwelling-house
  • 10 years for all other development, such as a change of use or breach of a planning condition. This includes HMO C4
  • 10 years for change of use of land to another designation. For example agricultural land to garden land.

 

 

Four year rule for a Lawful Development Certificate?

This is often confused and therefore it might be best to give a few examples:

  • Use of an outbuilding as a separate single dwelling – 4 years
  • Construction of a single dwelling (C3) – 4 years
  • Extension of an existing building – 4 years
  • Conversion of a building to a single holiday let – 4 years
  • Conversion of a commercial building to a single dwelling (C3) – 4 years
  • Construction of a new building of the same use within the site – 4 years
  • New fences, gates, walls etc. – 4 years
  • Use of a building as an HMO (C4) – 10 years
  • Commercial use of a barn – 10 years
  • Change of use (except to a dwelling) – 10 years
  • Breach of conditions – 10 years

Note that this article is still valid in early 2024. At some point the four year rule will cease and everything will be a ten year rule.

 

Deliberate Concealment

Any current use of the building must be visible and in the open. There was a well publicised case of a farmer, Mr. Fidler (no I didn’t make the name up!) who built a large house behind an even larger stack of hay and then failed when he tried to use a lawful development certificate. It is important that you keep your property in open view at all times in order to qualify for a LDC.

 

 

Listed Buildings / Conservation Areas

Note that a lawful development certificate cannot be used in situations where breaches of listed building or conservation area controls may be alleged. Therefore the 4 / 10 year rule will not apply.

 

Further guidance or reference

Planning Geek can assist you with an application for a certificate of lawfulness – please complete this form for a fee proposal. We will hold your hand for the best possible outcome.

The burden of proof is on the applicant and the Courts have held that the relevant test of the evidence on such matters is “the balance of probability“. If a local planning authority has no evidence itself, nor any from others, to contradict or otherwise make the applicant’s version of events less than probable, there is no good reason to refuse the application.

For further information you are welcome to consult the Government guidance on lawful development certificates or contact Planning Geek and we will assist. It is important to get the application correct.

We would recommend some or all of the following bits of evidence: statutory declarations, sworn affidavits, utility bills, service/repair bills, invoices, council tax payments, dated photos, electoral register, accounts and more….

 

 

Certificate of Lawfulness page updated: 26th February 2024

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