Section 191 of the Town and Country Planning Act 1990 provides that where a use or operation has become immune from enforcement action, it constitutes a lawful use or operation as long as it does not contravene the requirements of any enforcement notice in force. (There is a similar provision in respect of breaches of conditions subject to which planning permission has been granted.)
The section also sets out a procedure whereby anyone can require the local planning authority (LPA) to certify whether any existing operational development on land, or existing use of land or other matter constituting a failure to comply with a condition on a planning permission is lawful. Such a certificate is sometimes referred to as a “lawful development certificate” (LDC). It is not entirely unusual, however, for the grant of an LDC to be challenged.
In R (on the application of North Wiltshire District Council) v Cotswold District Council [2009] PLSCS 194 the claimant LPA sought judicial review of an LDC granted by the defendant LPA in respect of an airfield that straddled the boundary between them. The applicants in the case had submitted that the airfield had been continuously used for general aviation purposes for at least 10 years preceding the date of the application. The claimants’ two main grounds of challenge were that: (i) the term “general aviation purposes” was not sufficiently meaningful; and (ii) the area covered by the LDC was not precisely identified. The challenge failed.
The court held that the term “general aviation purposes” was recognised and understood both in general and by those involved in the aviation industry. Furthermore, the LDC was not invalidated by virtue of the fact that it referred to a map of the entirety of the land on which the airfield was situated.
Further grounds of challenge were that the planning merits had been taken into account, and that there had been a failure to provide adequate reasons for the grant of the LDC. The court also dismissed these.
Reasons why this procedure can generally be of significant value to developers and landowners, particularly those seeking a simple means of adding balance sheet value include: (i) it is not necessary to own an interest in the land in question; (ii) an LPA is not entitled to consider the planning merits – it is restricted to making a determination of fact and law; (iii) the burden of proof lies on the applicant, but the relevant test is “balance of probabilities”, that is, evidence is to be taken at face value unless contradictory evidence is available; (iv) conditions cannot be imposed on the grant of an LDC; (v) an appeal against actual or deemed refusal lies to the secretary of state, and from his determination to the High Court; and (Vi) once granted, an LDC is conclusive proof of lawfulness.
Guidance is contained in Annex 8 to DOE Circular 10/97.
John Martin is a freelance writer
