In Focus: Certificate of Lawful Existing Use or Development

A Certificate of Lawfulness of Existing Use is a mechanism that regularises a breach of planning control and has the effect of making the breach exempt from enforcement action by the planning authority. It is known by many names including a CLEUD, a certificate of lawful use or even a lawful development certificate.

It is granted by a planning authority retrospectively to an unauthorised operational development or to a material change of use of land or a building for which no planning permission was originally sought or granted.

It is important to note that a certificate of lawful use is a legal document; it is not planning permission.

Certificates of lawful use come under the Town & Country Planning 1990 Act and can be difficult to obtain. This is because the change of use or operational development must have existed continuously for a specific period of time before a CLEUD can be applied for and, hopefully, granted. However, proving this can be difficult. After all, had the breach been known to the relevant planning authority prior to the CLEUD being applied for, it is likely to have been the subject of enforcement action or a request for retrospective planning application before the relevant time period elapsed.

That said, under certain conditions certificates of lawful use are granted, meaning a breach that might have led to enforcement action is no longer a threat to the landowner.

Some activities, such as agriculture, maybe lawful from a planning perspective simply because they are not within planning control. This might be because they occurred prior to the introduction of comprehensive planning control, because they do not constitute development, because they already have planning permission specifically, or because the development maybe the subject or permitted development rights set out in the Town & Country (General Permitted Development)(England) Order 2015 (as amended), or in Wales the Town & Country (General Permitted Development) Order 1995 (as amended).

Other activities become lawful due to the passage of time. When a development or change of use occurs without the relevant planning consent, it is likely to breach planning controls. If the breach is continuous over a number of years, however, and this can be proved, then obtaining a certificate of lawful existing use is a way of regularising that activity or development.

The Town and Country Planning Act 1990 provides different time limits for different types of breaches of planning control. These include:

In the case of building, engineering, mining or other operational developments, enforcement action must be commenced within four years of substantial completion of the development. This is often called the certificate of lawful use four-year rule. After the time period has elapsed, and as long as no enforcement action has been taken, the developer may apply for a CLEUD to regularise the breach.

Operational development has a wide definition and can even include operational development associated with creating a cross-country riding course or a motorcross course on your land. If the planning status of the land is agricultural, this type of operational development requires planning permission. Failure to obtain this is a breach of planning control and could result in enforcement action unless a CLEUD is sought after a four-year time period which will commence from the date of the substantial completion of the development.

Where the change of use of a building to a single house has taken place, enforcement action must be taken within four years from the date of the breach of planning control. This time limit also applies where a single house is subdivided into flats.

Many farmers and other landowners don’t realise this applies to what might be considered minor or inconsequential changes of use, such as undertaking building works to convert a disused farm building into a stable block for leisure horses. This constitutes operational development, so planning consent should be sought. If not, a certificate of lawful existing use may be applied for after four years from the date of the breach of planning control.

For any other planning control breach, enforcement action must be taken within 10 years of the date of the breach – the so-called certificate of lawful use 10-year rule. This applies to a material change of use and a breach of condition imposed on a planning permission.

There are many examples of this, but those that effect farmers and landowners include non-compliance with an agricultural occupancy condition. If the occupants of a house do not and never have worked in agriculture, after 10 years of continuously living in a house with an agricultural occupancy condition, they can apply for a CLEUD to regularise the breach of condition.

Static caravans and motorhomes are also an interesting example. If placed on agricultural land, the land beneath the static caravan or motorhome is considered a material change of use and if the planning authority find out it is there, they may well ask the owner to remove it. However, if it is left in the same place for 10 years, a CLEUD may be obtained for the change of use of the land underneath the caravan or motorhome only, but probably not the field as a whole.

Applications for a certificate of lawful existing use are made to a planning authority and seek to ascertain the lawfulness of:

• Any existing use of buildings or land.
• Any operations which have been carried out in, on, over or under the land.
• Any failure to comply with any condition or limitation on which planning permission had been granted.

Applications are judged on ‘the balance of probability’ and to be successful, the applicant must be able to show that the operational development or change of use has existed continuously for the full four or ten-year period. Without this, the application may be denied.

Therefore, it is essential to know when the operational development was completed or when the change of use or breach of condition commenced.

A CLEUD will be granted by a planning authority only if the existing development or change of use of the land is considered to be lawful. A CLEUD may be granted in respect of an existing development or change of use, which would initially have been unlawful.

If you’re a CLA member and you have any further questions about a CLEUD, get in touch with your regional office for further advice.