Certificate of Lawfulness of existing use or development

Trainee planning solicitor, Issy Bainbridge, takes a look at when a Certificate of Lawfulness of existing use can be utilised.

Certificates of Lawfulness of existing use or development

Where a person has been using a parcel of land, or developed on a parcel of land, which breaches a condition or limitation of planning permission, or has been done without permission, a person may be able to apply for a certificate of lawfulness where the relevant time period has passed (4 years or 10 years depending on the subject matter). Such a certificate, if granted, will secure that use or development (which is in breach of planning permission) from being subject to enforcement action by the local planning authority/council.

In order for a breach to become lawful and be immune from enforcement, the onus is on the applicant to show:

• when the use and/or development for which a certificate is sought begun; and
• that such use and/or development has continued (without permission) thereafter, without material interruption, for the relevant time period (“the Burden of Proof”)

A certificate will not be granted if (among other things) the use or development has been concealed to which the council would not have been able to enforce against it.

Recent case study: Refusal to grant a certificate of lawfulness

There has been a recent appeal of a council’s refusal to grant a certificate of lawfulness for a concrete works company (“the Company”) whereby in 1990 the council had granted planning permission for the redevelopment of a factory for the manufacturing of building blocks subject to the following condition:

“Work shall only be carried out on, and deliveries made to and from, the site between the hours of 7am and 6pm on Mondays to Fridays and between 8am and 1pm on Saturdays. No work shall be carried out… on Sundays or Bank Holidays” (“the 1990 Condition”)

However, a certificate of lawfulness for existing use or development was sought for use of the site from 5am -12am on Mondays to Saturdays inclusive, which breaches the 1990 Condition to which the planning permission was granted. As a result of inconsistent statements provided in support of the application (referencing different chronologies to each other and the application itself) and energy consumption recordings demonstrating that there had been some interruptions, the Inspector in this case was not convinced that the evidence provided sufficient proof of (i) when the use first started or (ii) that the use had been between 5am to 12am Monday to Saturday for any continuous 10 year period without material interruption (therefore not satisfying the Burden of Proof, as outlined above). Instead, the Inspector considered that as there had been several interruptions, there had therefore been several separate breaches of the 1990 Condition, not just one continuous breach.

The Inspector also made reference to case of Ocado Retail Ltd -v- London Borough of Islington and others [2021], in stating that where there has been a continuous breach for any 10 year period without significant interruption, that breach would become lawful thereafter and a certificate of lawfulness should be granted even if a subsequent significant interruption occurs after a continuous 10 year period (or 4 years, as may be the case in some circumstances).

However, it was also noted in the case of Ocado v London Borough of Islington and others [2021] that it is only ‘that’ particular breach which has occurred continuously without significant interruption for the relevant time period that becomes lawful, any condition/limitation provided under a planning permission however is not removed in its entirety.

As such, in the case study regarding the Company, the 1990 Condition also refers to not operating on Sundays or Bank Holidays, if works were carried out on those days, the company would be in breach of the 1990 Condition still to which enforcement action could be taken (unless the Company breaches the 1990 Condition continuously without interruption for 10 years).

For more information on this subject area, you can watched Mike Harman’s webcast (registration required).

If you would like to discuss an application for a certificate of lawfulness, please contact our Planning Team for assistance or advice.