Clued up

David Merson considers the issue of certificates of lawful existing use or development and reports on two very different recent experiences with a warning about proposed changes to the planning enforcement regime.

Certificates of lawfulness of existing use or development (CLUED) are a useful statutory mechanism to secure confirmation of the validity of development without having to apply for full retrospective planning permission. This can often provide purchasers of land with the degree of comfort required to complete on a purchase.

Statutory Powers and Guidance

Section 191 of the Town and Country Planning Act 1990 (as amended) (“the Act”) provides for the grant of a CLUED.

The statutory position allows for an application to be submitted to the Local Planning Authority (“LPA”) for the issue of a CLUED in respect of: (i) existing use of buildings or other land; (ii) operations which have been carried out in, on, over or under land; or (iii) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted.

The CLUED has the effect of certifying that the development identified therein is lawful and cannot therefore be the subject of enforcement action. Lawfulness for these purposes is determined on the basis that: (i) no enforcement action may then be taken; (ii) the relevant time limits have been satisfied; and (iii) there is no enforcement notice then in force.

Lawfulness for these purposes is determined on the basis that the proposal would be lawful if instituted or begun at the time of the application without the need for any further planning permission.

Application for a CLUED must be made to the relevant LPA for the area in which the property is located.

In addition to the terms of s.191, the relevant procedure and guidance is set down in the following provisions: (i) Article 35 and Schedule 8 of the Town and Country Planning (Development Management Procedure) (England) Order 2010; (ii) Circular 10/97: Enforcing Planning Control: Legislative Provisions and Procedural Requirements; (iii) Communities and Local Government (“CLG”) Guidance on information requirements and validation March 2010; and (iii) The Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 (as amended).

In essence the application must be in writing on the relevant form and must comprise certain basic information. Obviously the land must be specified and the use, operation or other matter in question described together with the applicant’s reasons for regarding it as being lawful. The application must be accompanied by a plan (with identified scale and north point) identifying the land and such evidence verifying the information within the application as can be provided. The applicant should provide such other information as they consider relevant to the application. The applicant must also set out their interest in the land as well as providing details of any others with an interest in the land and provide an indication of whether those persons have been notified of the application. Lastly a fee is payable.

Determination

The LPA will acknowledge receipt of the application, consider its validity and notify the applicant accordingly. If the LPA require further information to allow them to deal with the application then that may be requested by notice in writing. The LPA has 8 weeks to determine a valid application beginning with the day immediately following its receipt.

It is for the relevant LPA to determine the application and they are provided with guidance in respect of how that is to be done.

CLG Circular 10/97 Enforcing Planning Control: Legislative Provisions and Procedural Requirements and in particular Annex 8 thereto provides a very helpful note of the relevant requirements.

The onus and burden of proof is firmly with the applicant. It is for the applicant to establish that the development that has been carried out either did not require planning permission in the first place or, if it did, that it is now immune from enforcement action. The relevant test is the “balance of probability”.

The LPA clearly holds a great deal of information and records. If however they do not have evidence which contradicts or undermines the applicant's then there is no good reason to refuse the application provided that the applicant’s evidence is sufficiently precise and unambiguous to justify grant. The statutory requirement is that if the LPA is satisfied that the unauthorised development is lawful and cannot therefore be the subject of enforcement action they shall issue a certificate. In any other case the LPA shall refuse the application.

The Certificate shall: (i) specify the land to which it relates; (ii) describe the use, operations or other matter in question; (iii) give the reasons for determining the use, operations or other matters to be lawful; and (iv) specify the date of the application for the certificate.

Clearly a successful CLUED application which results in the grant of a certificate would answer the landowner or potential landowner’s concerns. The lawfulness of any use, operations or other matter for which a certificate is in force shall be conclusively presumed and therefore immune from any enforcement action.

There are no requirements for applications to be notified to other owners or publicised although there is a requirement to provide details of any others with an interest in the land and provide an indication of whether those persons have been notified of the application.

On any certificate application the matters to be determined by the LPA are solely matters of evidence and law. There is no consideration whatsoever of the planning merits of whether or not planning permission should be granted.

The evidential burden to be discharged by the applicant is on the lower ‘balance of probability’ test rather than the stricter criminal ‘beyond a reasonable doubt’ test. It is up to the person applying for the CLUED to show the proper evidence. This could include: (i) proof that any building was 'substantially complete' more than four years before the date of the application; and (ii) proof that any use (or breach of condition) has been carried on continuously for a period of 10 years (four years in the case of a dwelling).  Evidence is very often submitted in the form of Affidavits or Statutory Declarations with any supporting documentation exhibited and annexed. This often gives the LPA a greater degree of comfort in terms of its ability to ‘rely’ on the evidence than if not.

A refusal of a certificate application is largely evidence based and therefore does not preclude a subsequent application or applications if the necessary evidence is forthcoming and no enforcement action is commenced which leads to a valid enforcement notice being put in place. This of course would not be the case were there to be an extant enforcement notice in existence. In addition a refusal creates statutory rights of appeal under s.195.

On the other hand the submission of a certificate application inevitably alerts the LPA to the issue. Any refusal may very well be followed by enforcement proceedings always assuming the LPA conclude that there is an apparent breach of planning control and that it is expedient in the public interest to take enforcement action in respect thereof. The submission of a certificate application may also have ramifications for the purchase of any insurance policy to cover the issue.

An alternative to the submission of a certificate application would be the submission of an application for retrospective planning permission. This of course has the distinct disadvantage of invoking the need to publicise the application, notifying others with an interest in the land, consulting with neighbours and statutory undertakers and opening up the planning merits of the development to scrutiny.

There are some hidden dangers lurking in the background which have to be borne in mind.

In respect of a CLUED application, it is an offence under s.194 of the Act to make false or misleading statements for the purpose of procuring a particular decision. The penalty for such an offence on summary conviction is a fine not exceeding the statutory maximum and on conviction on indictment to imprisonment for a term not exceeding two years, or a fine, or both.

There are also provisions contained in s.193 (7) which provide for the revocation of a CLUED granted in circumstances where a statement was made or document used which was false in a material particular; or any material information was withheld. Prosecution and conviction is not a pre-requisite to the exercise of the power of revocation. This can have potentially devastating consequences as we will see in a moment.

The first case

The first case involves two north London residents who purchased the leasehold interest in the ground floor flat of a property from the then registered proprietor of the property who became their landlord. This leasehold purchase was funded by way of a 100% mortgage.

The leasehold interest was registered at HM Land Registry and thereafter, in accordance with the terms of an agreement with their landlord, the residents acquired the freehold interest in the property together with the landlord.

The leasehold interest was acquired on the basis of the existence of a CLUED and representations made in respect of the lawfulness of the original conversion from a single dwellinghouse into two self contained flats.

The residents were not the applicant for, nor did they play any part whatsoever in the process of, the application for the CLUED. They innocently relied on the existence of the CLUED, given that the lawfulness of the use for which a certificate is in force shall be conclusively presumed, when they purchased the said leasehold interest.

Three years later, and apparently at the prompting of a local third party residents’ interest group, the LPA made further investigations which led directly to the revocation of the CLUED and the issue of an enforcement notice. The residents’ innocent reliance on the certificate was recognised by the LPA although this was not considered sufficient to warrant not proceeding to revoke the CLUED or to initiate enforcement action.

The enforcement notice is subject to appeal and the residents are seeking to overturn the enforcement notice on various grounds including that their personal predicament amounts to special circumstances such that planning permission ought in any event to be granted for their flat. The decision is currently awaited following the holding of a public inquiry.

To date no prosecutions would appear to have been initiated against those making the original certificate application or against those providing statutory declarations in support thereof.

The LPA decision to revoke the CLUED will no doubt alarm property lawyers and conveyancers because of the implications and in particular the potential for additional work by way of searches and inquires by purchasing solicitors that may arise in transactions reliant on the existence of a CLUED. It will no doubt also be of deep concern to lenders whose security could be undermined after the advance and expenditure of funds. Time periods will need to be analysed critically and the risks assessed and weighed up. It may be possible, depending on timing and the availability of supporting evidence, to secure an alternative CLUED between any potential revocation and the subsequent issue of an enforcement notice. The appeal decision will also no doubt be of interest in terms of the scope for reliance on the personal circumstances of the appellant in such a situation.

A new regime

What is equally alarming is that the Coalition Government is proposing changes to the planning enforcement regime through the Localism Bill which will have the effect of strengthening the power of LPAs to tackle abuses of the planning system. Part 5 Chapter 5 of the Localism Bill as originally published contains four wide ranging clauses.

While Clause 103 provides LPAs with power to decline to determine an application for retrospective planning permission in circumstances where there is an existing enforcement notice in place; of principal interest, in the context of these discussions, is Clause 104 which introduces the concept of a ‘planning enforcement order’ which can be sought by the LPA in the Magistrates’ Court in cases involving concealment and can be sought within six months of the apparent breach coming to the LPA’s attention. This will allow LPAs to pursue planning enforcement action within a year (and 22 days) of the grant of the planning enforcement order, making it easier for a LPA to enforce against a new owner in respect of a breach committed in the past by the previous owner.

The reforms arise principally out of two recent cases – R (on the application of Welwyn Hatfield Council) v Secretary of State for Communities and Local Government [2010] EWCA CIV 26 and Fidler v Secretary of State for Communities and Local Government [2010] EWHC 143 (Admin) – and while aimed at the dishonest, the provisions are drawn so widely that they will inevitably catch the innocent and anything which has not been expressly pointed out to the LPA.

Law Society President, Linda Lee has recently warned that ”… the new regime could create uncertainty for the buyers of both residential and commercial property when they cannot establish whether previous owners have concealed a breach of planning control” and that “… the reforms could have a serious effect on both the residential and commercial property markets, where innocent purchasers could become liable for the actions of a previous owner.”

In practical terms, purchasers could demand that each and every breach of planning control is remedied before completion; that the price is abated for the risk; or that insurance be purchased to cover the cost of future compliance. This is inevitably going to delay transactions and increase the due diligence carried out by buyers.

The second case

The second case, in contrast, could not have been more straight forward and involved a Norfolk resident who bought the freehold of a property on which two residential cottages had stood and in respect of which planning permission for redevelopment with a bungalow had previously been given in 1953.

The current owner had applied to the LPA on a number of occasions for his own planning permission to develop the property which had been refused and the subsequent appeals had been dismissed by Inspectors appointed by the Secretary of State.

The current owner submitted a CLUED application, supported by affidavit evidence from the owner at the time of the 1953 planning permission and other local residents, which demonstrated that the 1953 planning permission had been implemented by digging out the trenches for the footings of the foundations. The bungalow had unfortunately, for a number of reasons, never been completed.

Having satisfied the requirements of the process the current owner was granted a CLUED by the LPA thereby confirming that the development permitted by the 1953 planning permission remained capable of completion.

What made this an interesting case was the passage of time, the difficulty of getting hold of all of the relevant paperwork and the fading memories of potential witnesses.

Conclusions

Apparently unauthorised development and the absence of a planning permission in respect thereof is not the end of the world.

Applications for retrospective planning permission are, if the Localism Bill is enacted in its original form, going to become a thing of the past.

There will still be steps that can be taken to resolve the position and CLUED applications may become much more important. There are however technical complexities that need to be observed and addressed when dealing with CLUED applications. Evidence is critical and needs to be researched, collated and presented in a cogent and convincing manner. Time limits are important and can often be crucial. Failure to address issues in a timely fashion creates the potential for time consuming and costly proceedings and a failure to deal and comply with statutory notices creates potential criminal sanctions. It is therefore critical that property lawyers recognise the potential difficulties and take specialist planning law advice at the very earliest opportunity.

On the other hand, the existence of a CLUED from which the lawfulness of the use for which a certificate is in force shall be conclusively presumed should not necessarily be taken at face value give the existence of the power of revocation in s.193 (7).

Even after all that, if the Coalition Government has its way, the LPA may come along and initiate enforcement action for a breach of planning control about which the current owner (and their lender) may not even be aware.

In the words of a long dead Roman town planner – caveat emptor!

David Merson is Head of Planning and Environment at Steeles Law and can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it. or telephone 020 7421 1742.