How can you obtain confirmation of the lawful use or development of land?

Establishing the lawful use or development of land can be a tricky exercise particularly, if the property in question has a complicated planning history, or has been used for multiple purposes in quick succession.  Our team, of planning specialists can assist in helping you to ensure that the property can be lawfully used for the intended purposes, or in establishing that prior uses, or works have become lawful due to the expiry of time.

If on checking the planning history of the property, it is not immediately apparent that the building works, or use, carried out on the property are authorised through the grant of an express planning consent, or applicable permitted development rights, then it may be necessary to establish whether the use or works carried out have become lawful due to the expiry of time.  Where it can be established that the Local Planning Authority has not taken enforcement action against an unauthorised use, or works, in the following time frames, then the unauthorised development, will be considered to be immune from enforcement action:

• within 4 years of substantial completion for a breach of planning control consisting of operational development;
• within 4 years for an unauthorised change of use to a single dwellinghouse;
• within 10 years for any other breach of planning control (essentially other changes of use).

As set out in Section 171B of the Town and Country Planning Act 1990.

It is worth noting that these timeframes do not apply in certain specified circumstances, including where a breach has been deliberately concealed.

You can seek to officially document the lawfulness of any unauthorised development carried out on land through obtaining a Certificate of Lawful Existing Use or Development from the Local Planning Authority.  These certificates are often required by lenders or purchasers of a property, in order to provide certainty that there is no risk of enforcement action being taken against works, or uses, which do not benefit from planning permission.

Anyone can apply to the Local Planning Authority to obtain a decision on whether an existing use, or works, are lawful, and we regularly assist in advising on and preparing such applications.  The burden of proof for establishing that a use, or works have become lawful, rests with the applicant in such cases, and it is therefore imperative that sufficient evidence is submitted to secure the grant of a Certificate.  We recommend that a Statutory Declaration is prepared and submitted in support of an application for a Certificate. A Statutory Declaration is a formal statement made affirming that something is true by person making the declaration.  In addition to a Statutory Declaration, submitting evidence in the form of invoices, utility bills, old photographs, and any other documents detailing the use, or works, carried out on the land over the requisite period will assist in supporting the application.

Once an application is submitted, the Local Planning Authority are required to reach a decision within 8 weeks of the application being validated.  Unlike an application for planning permission, the assessment of the application is based on the evidence submitted with it, and any evidence held by the Local Planning Authority, or third parties.  The application cannot be assessed against planning policy requirements. If the Local Planning Authority is satisfied that the appropriate legal tests have been met, it will grant a Certificate.

In summary, lawful development is development against which no enforcement action may be taken by a Local Planning Authority because:

• no enforcement notice is in force, or,
• planning permission is not required; or
• the use or works have become immune from enforcement action.

Our Planning Lawyers are experienced in advising on the application process and documentary evidence required for obtaining Certificates of Lawful Use or Development, recent examples on which we have advised include:

• Obtaining a Certificate to confirm that the occupation of a property in breach of an agricultural occupancy condition had become lawful due to the property having not been occupied in accordance with the requirements of the condition for a period in excess of 10 years.  The grant of this Certificate enabled the property to be sold on the open market without requiring the purchaser to comply with the occupancy restriction.
• Obtaining a Certificate to confirm that part of a paddock to the rear of the property, which had changed use from agricultural grazing to domestic garden over 10 years ago, had become lawful for use as domestic garden.  This is a common situation with many homeowners looking to extend their gardens to incorporate areas of former paddock or agricultural land.  Technically speaking, the change of the paddock or agricultural land to domestic garden or residential amenity space amounts to a change of use for which planning permission is required. 
• Obtaining a Certificate to confirm that a large property could be lawfully used as four separate flats.  The property had been converted into four flats over a decade ago without obtaining express planning consent.  There was no evidence of any concealment and the Local Planning Authority upon submission of sufficient evidence granted the Certificate to confirm that use and occupation of the property as four flats was lawful.   

GET IN TOUCH

If you require advice from our Commercial Property team, please contact your local office, or complete our online enquiry form.