Certificates of Lawfulness

At its simplest Certificates of Lawfulness concern two sections of the Town and Country Planning Act 1990. Such a simplistic approach would, however, do the topic a disservice as there are a number of other sections that are engaged including the definition of development as well as the obvious link with the sections concerning enforcement notices and breach of condition notices. We will explore these links where appropriate.

One might be prompted to ask why these provisions are important at all given their apparent lack of influence other than in limited circumstances. Such an approach underestimates the importance of the provisions especially when considered in the light of the developing case law concerning the lawful commencement of development where certain conditions have not been discharged in advance. Following the financial crash lenders have placed more pressure on those who advise them as to valuation and title issues and are seeking active warranties from surveyors, planning consultants and lawyers that the use to which property is to be put, and upon which valuation assumptions have been made, is lawful so that the security over the property is not illusory. Certificates of Lawfulness both as to existing and proposed use have a very important part to play in this process where there are any doubts as to the planning status of the land. It is likely that more applications will at least be considered if not submitted given this approach.

As the legislation and guidance makes clear there is no need to make a formal application for a certificate once the relevant period for acquiring immunity has expired and it may be that applying the practical steps advocated we advocate in our  book Certificates of Lawful Use and Development A Guide to Making and Determining Applications leads to a conclusion that an application is unnecessary but nevertheless the process and questioning approach should, at the very least be engaged so that those tasked with advising can advise with confidence.

Where an enforcement notice has been issued it is possible to appeal on the basis that the time period for taking enforcement action has expired and an Inspector considering such an appeal can issue a certificate if satisfied that at the date that the appeal is lodged the relevant time period has expired and the development has thus become immune from enforcement action.. An Inspector cannot, if only dealing with an appeal against an enforcement notice, issue a Certificate unless there is a conjoined appeal where an application for a certificate was made and refused and an appeal is then lodged at the same time as the enforcement appeal. The evidence required and the questions to be asked when dealing with the enforcement appeal are the same as those engaged in the process of seeking a certificate.

There are many complex procedural aspects to dealing with a Certificate of Lawfulness application. In the first instance identifying what the actual breach(es) is/are vitally important as that will impact on the time limit that applies. An often overlooked issue is that of the planning unit which was recently considered in the case of R (KP JR Management Co.) v Richmond LBC [2018] EWHC 84 (Admin). That case confirms that it is a matter for the judgment of the decision maker to determine what is the relevant planning unit.

Evidence gathering and presentation will make or break an application. In our book we examine the various potential sources of evidence and how such evidence can be presented. How the decision should weigh the evidence can be fraught with difficulty. The burden of proof is that of a balance of probability but in practice, especially in contentious cases, local authority decision makers can sometimes

stray beyond the standard of proof required and begin to require corroboration and a higher standard of proof despite the requirement of the NPPG and case law which makes it clear what the relevant standard is and that corroboration is not required.

Local residents who will be most affected are placed in a very difficult position. There is no requirement for any consultation to take place. To make matters worse the Court of Appeal in the case of France v Kensington and Chelsea LBC & Crown Estate Commissioners and Mr and Mrs Jonathan Hunt [2017] EWCA Civ 429 has held that there is no legitimate expectation on the part of a local resident or person likely to be affected by the decision that they would be consulted or notified of an application. The NPPG does indicate that local authorities may wish to consult various groups or individuals if “there is good reason to believe they may possess relevant information about the content of a specific application.”

If an application is successful the actual wording of a Certificate is extremely important as the grant of a Certificate is tantamount to a grant of planning permission subject only to any constraints as might be included in the wording. Whilst it might be expected that there was a duty to be as specific as possible the only legal requirement is to specify a use by reference the relevant Use Class. Case law has established that other than that requirement the wording is a matter of discretion for the decision maker.

Where a local authority is minded to refuse an application it should very carefully consider the basis of that refusal. Is it based on a lack of sufficient evidence that has been produced by the applicant or is it relying on other evidence either from its own sources or supplied by third parties. The NPPG makes it clear that  “ in the case of applications for existing use, 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…” But this is subject to the important reservation “ provided the applicant’s evidence alone is sufficiently precise and unambiguous to justify the grant of a certificate on the balance of probability.”

Similar considerations apply to a situation where a prospective purchaser wishes to ascertain whether or not their proposed use of the land would be lawful or whether or not they can continue to construct something that ash been commenced.

Our book takes the various subjects outlined above in a logical sequence and builds from the basic definition of development through to determining applications and dealing with appeals. At the end of each topic is a checklist for matters that should be considered and to act as an aide memoire for those to engage at the appropriate part of the process. The authors hope that by using these guides those who do not deal with the subject regularly, and those who do, will be able approach the task with confidence and thus be able to advise on the issues armed with a more measured approach to evidence and procedure.

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Bob Mc Geady and Meyric Lewis