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 has been updated on 5th April for the changes to be introduced from 25th April 2024

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.

 

 

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. Contact us for help.

 

Evidence for a Lawful Development Certificate

Quite a bit of evidence is required for a certificate of lawfulness. This might include Sworn Affidavit (former and current owners, neighbours etc.), Photos (ideally dated in some way), Satellite Images, ASTs or other rental agreements, Council Tax Records, Utility Bills, Invoices for items supplied, Certificates (gas, electric etc.), Service or repair bills, Electoral Register, Accounts, Building Control Final Inspection Certificate, Valuation tax letter (VOA), Environmental health records, Vehicle registration documents, Builders or other trade invoices, Leases, previous planning decisions. The more evidence the better. Not all these items are required however. Some might not be applicable. There may also be other evidence.

You will need to supply a location plan to the correct scale, proposed and existing floor plans and proposed and existing elevations as required. We can assist with these if required.

 

Certificate for extant planning

You might need to prove that you made your planning extant within the three years on a full planning application decision. A certificate of lawfulness can be applied for to support the planning. Planning Geek can assist with that.

 

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 (see this page) 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. The more evidence you have the better.

• 4 years where works were substantially complete by 25th April 2024 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.
• 10 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.
• 10 years for a material change of use of a building, or part of a building, to use as a single dwelling-house, unless the change occured before 25th April 2024 for which it will be 4 years.
• 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.

Note that for the date of 25th April 2024, the period of 4 years will still need to have occurred before you can apply for a certificate of lawfulness. 

Planning Geek is very experienced in such applications – we urge you to apply as soon as possible.

 

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 if works were substantially complete by 25th April 2024
• Construction of a single dwelling (C3) – 4 years if works were substantially complete by 25th April 2024
• Extension of an existing building – 4 years if works were substantially complete by 25th April 2024
• Conversion of a building to a single holiday let – 4 years if works were substantially complete by 25th April 2024
• Conversion of a commercial building to a single dwelling (C3) – 4 years if works were substantially complete by 25th April 2024
• Construction of a new building of the same use within the site – 4 years if works were substantially complete by 25th April 2024
• New fences, gates, walls etc. – 4 years if works were substantially complete by 25th April 2024
• Use of a building as an HMO (C4 or Sui Generis) – 10 years
• Commercial use of a barn – 10 years
• Change of use (except to a dwelling) – 10 years
• Breach of conditions – 10 years

If works are substationally complete after 25th April 2024 a ten year period will apply to all. 

 

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 we 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….

Note that a Certificate of Lawfulness (COL) might be called a CLOPUD, CLUED, CLEUD, Lawful Development Certificate (LDC) amongst other titles and abbreviations.  They are all the same thing.

 

 

Certificate of Lawfulness page updated: 5th April 2024

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