Yohanna Weber looks at key legal features of lawful development certificates and pitfalls to avoid in the application process.
Since their introduction in 1991, lawful development certificates, which encompass both CLEUDs (certificates of lawfulness of existing use or development) and CLOPUDs (certificates of lawfulness of proposed use or development) have proven to be invaluable in situations where there has been uncertainty surrounding the legitimacy of an existing or proposed development or use.
What is the purpose of an LDC?
It is important in the first instance not to make the mistake of thinking that an LDC confers lawfulness on any given planning use or development. It does not. Rather, an LDC is issued only where such lawfulness is found already to exist as a matter of fact, where certain criteria are met (Hillingdon Borough Council v Secretary of State for Communities and Local Government [2008] EWHC 198 (Admin)). The LDC simply provides a conclusive presumption of the lawfulness of the use or development described in it.
How does an LDC work?
An LDC gives formal confirmation by the local planning authority that a use or development is, or would be, lawful in the absence of express planning permission, by virtue of certain criteria being met. These criteria are that the use or development in question:
- is not “development” that requires permission at all; or
- benefits from permitted development rights (a form of deemed permission); or
- falls within development that is authorised by a lawfully implemented planning permission; or
- pre-dates 1 July 1948; or
- in respect of CLEUDs, has accrued immunity from planning enforcement action due to the expiry of the relevant timeframe for that action to be taken by the local planning authority (four years for changes of use to a dwelling and 10 years in all other cases).
Making the application
Whereas a CLOPUD application turns on technical matters, a CLEUD application will depend on matters of fact and law.
Most CLEUD applications boil down to demonstrating that the relevant period for the local planning authority to take enforcement action has expired, and that the use has been carried out continuously during that time. When preparing an application for a CLEUD on this basis, it is worth bearing in mind the following three top tips:
1. It is a matter of law, not planning
Planning merits are irrelevant. The test is a legal one: whether “sufficiently precise and unambiguous” evidence has been presented by the applicant to demonstrate that it is more likely than not that the use was carried on continuously for the relevant period prior to the application (that is, the balance of probability test). As such, the application is likely to be considered by the council’s legal department.
Sworn evidence such as statutory declarations is therefore always preferable to correspondence. Supporting information such as aerial photos, utility bills and other records will carry greater weight when they are woven into sworn evidence in a narrative given by a witness. The Planning Inspectorate’s Guidance on LDC Appeals (November 2020) is a useful guide to the legal considerations.
2. Pay attention to the detail
The technical requirements of an application can often trip up applicants; for example, not providing evidence that covers the full time period or physical area covered by the application, or the full scope of the use claimed. Care should be taken to be accurate in all respects or the local planning authority may refuse the application in part and grant the LDC over a modified area of land. The local authority also has power to revoke an LDC that was granted on the basis of materially false or omitted information.
3. Statutory declarations
These will be the most important part of the evidence. Remember that the declarants are the witnesses who would be giving evidence – telling the story of the use – on any appeal, and if their written evidence is convincing, so too would their oral evidence be. The more genuine and cogent the evidence from witnesses, the more compelling it will be. There is no requirement for independent expert evidence but ensure that you provide statutory declarations from multiple parties that corroborate each other and leave no unexplained gaps in the story. An absence of documentary evidence need not be fatal where there are clear and reasonable grounds to explain it.
Practical considerations and use class E
In practice, LDCs are most frequently sought to ward off enforcement action threatened by the local planning authority, or where required by a contracting party in a disposal or refinance.
In this context, CLEUDs have traditionally tended to be of more practical use than their counterparts. The grant of a CLEUD turns on whether the use claimed has been carried out in fact for the relevant time prior to making the application. This means in effect that a materially different use can be deemed lawful, simply by virtue of the passage of time.
Conversely, with a CLOPUD the considerations for determining lawfulness of a proposed use relate to whether further permission is not technically required under planning legislation. Historically, this has meant that CLOPUDs are more restricted because the extent of development that can be regularised cannot stray too far from the existing use without triggering the need for permission. As such, a CLOPUD would not be suitable for a prospective purchaser with more than de minimis development plans: their investment would be better safeguarded with the certainty of an express planning permission.
But how might the new “super” use class E – introduced by the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 – change all this?
An LDC must describe the use it relates to and, in the case of any use falling within one of the classes listed in the Town and Country Planning (Use Classes) Order 1987 (as amended), identify it by reference to that class. It follows, then, that an LDC which identifies a use by reference to the new use class E, by virtue of section 55(2)(f) of the Town and Country Planning Act 1990 unlocks permitted development rights to change use within that use class without triggering the need for planning permission. In practical terms, the upshot of this is that an LDC with a class-E description could have the effect of completely opening up the type of use to which the property can be put. This is potentially great news for applicants – not so much for the local authorities.
The recent High Court decision in Breckland District Council v Secretary of State for Housing, Communities and Local Government [2020] EWHC 292 (Admin), in which the court held that a CLEUD obtained in 2006 for “the use of land as a caravan and camping site” was wide enough to allow use for caravans and camping both temporarily and permanently, provides a timely reminder for local authorities, in the face of use class E, to exercise great care in drafting the terms of an LDC, lest they are “thereafter precluded from preventing a use for which a planning permission would not have been granted, simply because the certificate had been used in terms wider than were necessary” (Broxbourne Borough Council v Secretary of State for the Environment and others [1979] 1 EGLR 149).
Risk vs reward?
Applications for LDCs are, alas, not easy shortcuts to de facto planning permission. The absence of a third-party consultation process and a smaller application fee are advantages, but the application requires careful preparation and crafting, as the consequences of putting in an under-prepared or disingenuous application can be costly. At worst, a refusal might prompt enforcement action from the local planning authority, and at best it might require the submission of a full planning application, rendering the time and cost of the LDC application entirely wasted.
Following the advent of use class E, the upside is the promise of a potential goldmine in the guise of land that has a far wider potential than that for which it has been historically used or far greater than that initially envisaged by the applicant or the local authority. Such an outcome can only lead to an increase in value for the land in question.
Arguably, LDCs acquire a whole new level of importance in the context of a new use class that encompasses everything from nurseries, shops, and restaurants, to offices, gyms, and even light industry. It remains to be seen whether applicants willing to risk applying for one will see a reticence on the part of the authorities to issue use class E LDCs, or the tougher vetting of applications.
Yohanna Weber is a partner at Davitt Jones Bould