Certificates of lawful use – a reminder for councils

Polly Reynolds looks at the key lessons from a recent High Court case examining the role of councils when determining applications for grant of a certificate of lawful use.

If an individual carries out building operations or a material change of use without planning permission, the local authority may serve an enforcement notice.

Even so, Section 171B of the Town and Country Planning Act 1990 (TCPA) provides time limits within which enforcement action must be taken. After this period, a breach of planning control will become immune to enforcement action. In the case of a change of use, the time limit for enforcement is ten years.

When a time limit for enforcement action has expired, an individual may apply to the local planning authority for the grant of a Certificate of Lawfulness of the Existing Use or Development (CLEUD). In the recent case of R v Wiltshire Council [2014] EWHC 211 (Admin), this process was under scrutiny.

The case involved a site consisting of a number of former agricultural buildings which had been used as offices without planning permission. Along with the offices there was an area (to the south) used as parking 'ancillary' to the office use, also without planning permission. The owner applied for a CLEUD in relation to both uses, though was only successful in relation to the parking area.

The claimant challenged the granting of a CLEUD in relation to the ancillary parking area.

The owner's application to the council had described the parking land as, "land to the south of the Old Workshop building as an ancillary vehicular parking area". The council had already found that there had not been over ten years' continuous use of the offices.

On this basis, the council realised there could not be the required period of use of the 'ancillary' parking area either, as the use period would inevitably mirror that of the offices. Nevertheless, the council chose to use its powers under Section 191(4) of the TCPA to substitute the applicant's description of the use of the parking area from 'ancillary' to general 'vehicular parking'.

Using the alternative description of 'vehicular parking', the council found that there had been over ten years of parking in some form, as prior to the office use the land to the south had been used as an informal parking area. The council saw no need to distinguish between the ancillary parking, by those associated with the offices, and the earlier parking use which was not restricted.

The council's approach was held to be incorrect. In substituting a different description of the parking use, the council was required to show over ten years of use for general vehicular parking. The earlier period of general parking could not be aggregated with the restricted period of ancillary parking. On this ground the claim for judicial review succeeded and the CLEUD for the parking area was quashed.

Best practice

This case is an important reminder of the role of councils when determining applications for grant of a CLEUD.

Applicants should make every effort to ensure the accuracy of information contained in their applications, though the powers under s191(4) are broad and give the council scope to alter an application to fully reflect the lawful use at the time the application was submitted.

In addition, applicants would be well advised to regularly monitor the progress of the application once submitted. This includes liaising with the council on whether it has any concerns regarding the evidence provided or whether any additional evidence or clarification regarding the application is required in order for the council to be satisfied (on the balance of probabilities) that the use has been proven over the requisite period. Applicants might also wish to request sight of any draft certificate to be issued. Errors cannot be corrected following a formal issue without a further application being submitted.

For councils, the lessons of this case are very clear. Consideration should always be given to any changes in the way land is used, however trivial, over the ten year period so that powers under s191(4) can be used appropriately. Councils need to be satisfied that there has been continuous use, rather than moulding the definition of the lawful use to fit the facts.

Polly Reynolds is a senior associate at Veale Wasbrough Vizards. She can be contacted on 0117 314 5276 or This email address is being protected from spambots. You need JavaScript enabled to view it..