It can be the bane of a property lawyer’s life – certifying that the current use of a property accords with planning legislation in the absence of an express authorising permission.
For the risk-averse, such as lenders and investors, a statement that the company “believes” use in the present form has persisted for a period exceeding 10 years (the period required by section 171B(3) of the Town and Country Planning Act 1990 to render an unpermitted user lawful) may be far from sufficient, particularly where such use is pivotal to the property’s valuation. Where the owner has not been in ownership for the duration of that period, qualifications of awareness can trigger uncertainty and unease, and an owner may be reluctant to raise or permit direct enquiries of planning authorities which might highlight a potential planning breach. However, sellers should exercise caution in providing confirmations of long user, and buyers should be circumspect in accepting them, without some further due diligence.
The greater risk, of course, arises where the relevant planning authority has already expressed concerns about the legality of use or development, or even threatened enforcement action in respect of an alleged planning breach.
Enter stage left the tantalising prospect of a certificate of lawful existing use or development (CLEUD).
Give us a CLEUD
In the case of use, a CLEUD is usually applied for as evidence that:
- an existing use is rendered lawful through “long user”;
- no planning permission was required for the existing use;
- the use is permitted under planning regulations; or
- the use is, in fact, compliant with an existing planning permission.
A successful CLEUD application does not grant permission for a particular use. Instead, it confirms that an existing use of land, or some activity being carried on in breach of a planning condition, is lawful for planning purposes under section 191 of the Act.
The CLEUD application process is based in statute. The application is submitted (with fee) through the relevant local authority in compliance with Article 39 of the Town and Country Planning (Development Management Procedure) (England) Order 2015. The application must describe precisely what is being applied for (not simply the use class) and the land to which the application relates, and be supported by sufficient factual information to support the validity of that application.
In considering the application, the planning authority is entitled, but not obliged, to obtain the views of relevant third parties. Any objections based on planning merits are invalid in relation to the determination of a CLEUD application. The case is considered only on a factual, not meritorious, basis.
A planning authority’s refusal to issue a CLEUD, or to issue a decision within the statutory eight-week period, entitles the original applicant to submit an appeal to the Planning Inspectorate.
If, following a successful CLEUD application or appeal, the existing use is deemed lawful, no enforcement action may be taken against that specified use.
However, if that CLEUD has been obtained based on erroneous, or withheld, information, the applicant may face the very real prospect of its revocation pursuant to section 193(7) of the Act, leaving the owner exposed to enforcement action.
CLEUD-less
This situation arose in R (on the application of Ocado Retail Ltd) v Islington London Borough Council [2021] EWHC 1509 (Admin); [2021] PLSCS 104, which involved four industrial units constructed pursuant to a 1984 planning consent, restricting the buildings to light or general industrial use, and expressly prohibiting warehouse use.
In 2019, a CLEUD application was submitted to confirm class B8 (storage and distribution) as the lawful use of those units. The application indicated that such use had commenced in 1992, more than 10 years before the date of the application, in breach of the 1984 consent. The CLEUD was granted (without external consultation) and Ocado entered an agreement to lease the premises.
Ocado subsequently applied for planning consent to make improvements to the warehouses, and local residents raised a challenge against the CLEUD on the grounds that the application had contained statements which were materially false or that material information had been withheld.
The application had been founded on the premise that (a) the four units had constituted a single planning unit throughout the period and that (b) once the premises had been used for B8 purposes for a 10-year period in breach of condition, the right of user thereby obtained had not subsequently been lost. The applicant had presented a factually inaccurate account of use during the relevant period. There was no interconnection between two of the units. Furthermore, there was evidence that two of the units were unused in 2011 and had been marketed as a separate unit, and that claims of continuous use of the whole as warehouses were erroneous. The planning authority had made a decision based on incorrect facts, and might have reached a different conclusion in other circumstances. The CLEUD was revoked.
On judicial review, the High Court upheld the planning authority’s decision to revoke the CLEUD. In doing so, Holgate J provided helpful clarification that:
- withholding of information does not have to be deliberate;
- a breach of condition, or material change of use, must be continuous for the whole of the relevant (and minimum 10-year) period to achieve immunity from enforcement;
- a lawful use can have accrued, even if it is not continuous at the point of application; and
- once immunity has been obtained, the right can only be lost via abandonment or a supervening event.
While CLEUDs are undoubtedly a useful tool to erase concerns of unauthorised users, those applying for or relying on them should still take all necessary steps to ensure that they are based on full and factually correct disclosure.
Stefanie Price is a real estate partner and Jo Shakespeare is a real estate knowledge lawyer at Baker McKenzie
