Lawful use or development certificates Q & A DCP Section 4.301

Thursday, 22 December 2011, dcservices.co.uk

The amendments to secs.64, 191 and 192 of the 1990 Act, introduced on 27/7/92 (25/9/92 in Scotland), enabling the issue of a lawful use or development certificate (LDC), are an excellent starting point to understanding the scope of development control law, since their operation effectively sets the boundaries between; (a) what is development requiring express planning permission i.e. needs a formal planning permission; (b) what is development but enjoys a general deemed permission given by planning law and thus does not require express planning permission; (c) what is lawful development having been in operation for a specified number of years and thus having obtained rights to continue without the threat of enforcement; (d) what is unlawful development which is that liable to enforcement action by local authorities.

Q & A    4.301/10

An LDC was submitted for a roof dormer of under 50 cubic metres. The property has an existing small single story rear addition and a detached garage within 5m of this extension. On the submitted plans the applicant showed that the extension and the garage were to be demolished to meet the permitted development tolerances under Part 1 Class B of the GPDO. The certificate was refused on the basis that the extension and the garage had not actually been demolished and therefore the proposed dormer in conjunction with the extension and garage exceeds the permitted development tolerances and therefore is not lawful. Is this approach correct?

Without more detail it is difficult to conclusively assess whether the extension and particularly the detached garage do in fact count against the permitted development tolerance for this property. As regular Forum readers will know this may be a matter of some controversy. However, assuming that the dormer is not permitted development, but would be so following the removal of the extension and/or the garage, I feel that it would have been reasonable for a certificate to have been issued. Although conditions cannot be applied to an LDC the description of the development certified to be lawful could have specified that the demolitions proposed by the applicant would be carried out previously or concurrently.

Motor cycle scrambling activity in a field near houses that has existed for at least 12 years has escalated from a very low key use to one that is very disruptive and harmful to neighbouring amenities. Originally it consisted of twice-yearly sessions for schoolchildren but grew until in 2000 it moved to a site further up the mountain.  Following the foot and mouth disease outbreak, in 2001 activity completely ceased but later resumed with meetings held twice-a-month and riders frequently undertaking informal practice. On racing days there can be about 200 riders, causing serious inconvenience to other users of the narrow local roads. A certificate of lawfulness for the use has now been sought. If this is granted, do residents have any redress for the gross disamenity they suffer or for the loss of house value?

A certificate of lawfulness is a legal document rather than a planning permission. In order for such a certificate to be granted, the planning authority would need to be satisfied that, on the balance of probability, the scrambling use had operated on the same piece of land without significant interruption or material change in scale, nature or intensity for 10 years prior to the date of the application, and is thus now immune from enforcement proceedings. The planning merits of the use, including its effect on local living conditions, highway safety and convenience, and property values, are not material considerations. If granted, unless challenged in the High Court, there would be no remedy for aggrieved residents and regardless of the outcome of such action there is no redress for any loss of amenity. However, from what you say, it seems likely that the relocation of the use in 2000, its cessation in 2001 and the greatly increased activity levels over the years could all count against a certificate being issued.

Can my authority refuse to determine an application for a certificate of lawfulness for an existing use if an enforcement notice or breach of condition notice relating to the same development has already taken effect? Otherwise, what is to stop an applicant applying for such a certificate in an attempt to overturn enforcement action or delay prosecution proceedings?

This is not covered in the advice on certificates of lawfulness set out at Annex 8 of circular 10/97. Under subsections 191 (2) and (3) of the 1990 Act, a certificate cannot be granted where a use contravenes any enforcement notice or breach of condition notice in force at the time. As the effect of enforcement action here will be to defeat the application, other than as a possible stalling tactic its purpose is pointless and apparently vexatious. But whether the authority would be justified in refusing to determine the application is arguable, as there is no specific power for this under sec 70A of the Act.

The proper course for the applicant would have been to have challenged an enforcement notice by an appeal under ground (d) of the statutory grounds of appeal or, in the case of a breach of condition notice against which there is no right of appeal, perhaps to have applied under sec 73A to retain the development as carried out.

In any event, I see no reason in law why a belated application for such a certificate need delay further proceedings to ensure compliance with the requirements of an existing notice.

The Licensing Act 2003 allows public houses to apply for the conversion of their existing Justices’ Licences to new ‘premises licences’ that permit music, dancing and later closing times. Under what circumstances would licensed premises such as these, which would fall within new Class A4 of the recently amended Use Classes Order, need to apply for permission for change of use to a nightclub, which is now sui generis? In other words, when does a public house become a nightclub? Is there a definition that makes the difference clear?

Neither the Town and Country Planning (Use Classes) (Amendment) (England) Order 2005, which disaggregated the former A3 food and drink class, nor ODPM Circular 03/2005, which gives guidance on the amended Order, defines a public house or nightclub. However, the circular explains that the courts have held that the first thing to consider when determining whether a change of use has occurred is the existing primary use of the land. An assessment of this will always turn on matters of fact and degree. Where the primary purpose of a use is the sale and consumption of alcoholic drink on the premises, the use will fall within Class A4. The circular adds that when considering the correct classification, factors such as whether the majority of customers on the premises are consuming alcoholic liquor exclusively, whether there is a public house licence and whether there is any "obligation or expectation for customers to consume a meal" will all be relevant. While the circular is silent on the factors that point towards a nightclub use, where the primary purpose is dancing, this will be clear. Elsewhere, in the absence of a primary purpose for the sale and consumption of alcoholic drink on the premises, consideration will turn on the presence of dancing facilities and other factors, which might include the payment of an entrance charge. However, in practice the distinctions between a public house and a nightclub could be difficult to establish, as you imply.

My authority is considering a lawful development certificate (LDC) for the demolition of one of a pair of attached garages straddling the boundary between two houses. The garages stand apart from the dwellings and are covered by a pitched roof. The demolition would leave the remaining garage with a mono-pitched roof. The applicant has not explained the reason for the proposal and argues that it is permitted under Part 31 of the General Permitted Development Order 1995. However, it appears that the authority's prior approval would be needed. Can my authority grant an LDC?

As explained in Annex 8 to Circular 10/97, Sec. 193 (5) of the Town and Country Planning Act 1990 provides that an LDC shall not affect any matter constituting a failure to comply with any condition or limitation subject to which permission has been granted, unless that matter is described in the certificate. While the proposal appears to be permitted development and your authority may issue an LDC confirming that its permission is not required for demolition, this would not override the requirement for the householder to comply with conditions set out at paragraph A2 of Part 31. These include the need to apply for "a determination as to whether the prior approval of the authority will be required to the method of demolition and any proposed restoration of the site", rather than prior approval as such.

A lawful development certificate (LDC) for the use of land for keeping horses also confirms the lawfulness of the ancillary use of stables and the use of a caravan for washing and toilet facilities. Can the authority now insist that only the caravan that was on the land at the time the certificate was issued can be used for such purposes and prevent it from being replaced by another caravan? There is nothing in the certificate to identify its type, make, chassis number, colour or size.

An LDC only confirms the lawfulness of the development described in the certificate and cannot, for example, include conditions or take away any user rights. Since a caravan is a use of the land on which it is stationed, any replacement will fall outside the authority's control provided it remains within the same planning unit and is used for similar ancillary purposes.

My client has been carrying out an unauthorised use on his land for just over ten years, although there was a break due to the last foot-and-mouth outbreak. Has the use become immune from enforcement action or has the break in use, which was as a result of circumstances beyond my client's control, stopped the accrual of immunity?

In Thurrock Borough Council v Secretary of State for the Environment, Transport and the Regions and Holding [2002], the Court of Appeal held that it is necessary to establish continuous use for ten years to be immune from enforcement action, disregarding any interruptions that may be deemed de minimis. Whether any break in use is sufficient to stop the clock is a matter of fact and degree. However, in a recent case that concerned a lawful development certificate for motorcycling activities on farmland in south Wales (DCS No: 100042650), an inspector decided that a break in use of around 18 months due to the foot-and-mouth outbreak was significant enough to prevent the attainment of immunity. This was despite the landowner's intention to resume the use and the fact that its temporary cessation was beyond his control.

My client lives on a farm and was recently granted a certificate of lawfulness for a "mobile home being ancillary to the holding". Attached to the certificate is a plan of the farm outlined in red. She now wants to sell part of the holding but is concerned that this would invalidate the certificate and that she could lose her home. If that is the case, could the certificate be modified or is there any other way round the problem?

If, as I suspect, the certificate was granted on the basis that the mobile home had been occupied residentially for at least ten years, rather than being used occasionally for rest and refreshment in connection with the running of the holding, the ancillary link will be irrelevant. In such circumstances there would be no need to identify the full extent of the farm on the attached plan. The sale of part of the holding would not invalidate the certificate or be an impediment to the continued lawful occupation of the mobile home by either your client or another person.

I am about to apply for a certificate of lawful use (LDC)  for touring caravans, motor caravans and tents on a five acre site for up to 30 units per acre.  There is no problem with supplying evidence from the last ten years, and I do not have to show daily use.  But do I need to prove that the scale of use has been the same throughout the specified period? The local planning authority inform me that it is only prepared to issue a certificate for the average number of units that have been present, but this does not seem to me to be fair. PJ.

From what you say it appears that the council may well have already conceded that the camping site has the necessary continuity of use for lawfulness to have been established using the ten year rule. However the council rightly will be concerned that any LDC which it is obliged to issue does not allow a use commenced in breach of planning control to significantly develop any further. In this respect may be possible for it to set the figure in the certificate at highest level of camping use which prevailed  ten years before the application for a certificate, as demonstrated in an appeal decision from Wales in 2002 (DCS Number 048-295-935). Another case from Shropshire in 1995 (DCS Number 050-459-080) supports this general approach.

However, whatever time frame is used, the description of what is found to be lawful only establishes a benchmark.  Any increase in the level of activity on the land is then be assessed against this so as to establish whether a future material change of use has occurred through intensification or otherwise. Therefore it may well be possible to allow in additional camping units, over any LDC specification, without triggering any further breach of planning control.

Cases such as this raise a complexity of issues based on individual circumstances and it is difficult to comment on what level of evidence as to past usage leads to a fair specification in an LDC. It may well be that this is best achieved by citation of particular months in the year, as well as holiday unit numbers, in order to reach a reasonable outcome for both sides. GH.

We have submitted lawful development applications for extensions over many years in the form of, for example, ‘demolition of existing conservatory and erection of new extension’, accompanied by relevant calculations for removal of the volume of the conservatory (built some years ago) and the volume of the new extension. Suddenly one authority will not consider this type of application until the original conservatory has actually already been demolished. Is this correct and is this widespread? – LG.

One authority I am familiar with asks for a letter saying confirming the "old" extension would be demolished first before determining the application, if this was not made clear in the original submission, and then add an informative to the decision reiterating this in these circumstances. The only justification I can think of for this council’s approach is it is considering that the demolition of part of a house requires planning permission as suggested in my Forum response of 6 June. If this interpretation is correct, then strictly the authority would be obliged to refuse any application couched in the form "demolition of x and erection of y". Advising "go and demolish x first" when this would be in breach of planning control, however, would not be a very sensible approach to avoid this. I am not aware of other authorities adopting this practice and wonder if any readers can throw more light on this issue. JH.

Response

Regarding the demolition of a conservatory and erection of new extension query (8 August’s Forum), the demolition of a conservatory and the erection of an extension are two discrete operations that can be carried out quite independently of each other. An authority could not grant a lawful development certificate as described if to erect the extension without demolishing the conservatory would not be permitted development – for example, if the tolerances would be exceeded if the structures were to co-exist. This is because the certificate must state what would have been lawful on the date of the application and on the date of the application, the conservatory would not have been demolished.  Of course, there is no need to be too zealous about it. My view above assumes that the conservatory and the extension are at opposite ends of the building. If the conservatory and the extension were on the same footprint, there is no harm in favourably determining the application. LR.

Further Response

I have received other responses on this issue, but LR’s is the best explained. Whilst LR’s position is well argued, I would disagree. Both the demolition of an extension and the erection of a new one are operational development. Thus if a lawful development certificate (LDC) application is made to demolish something and then build another extension, it must be considered on this basis, i.e. for a sequence of two elements of operational development. On the date of the application the householder could start the demolition work and in due course move on to the construction of the new extension. The application is not just for the erection of the new extension. As previously explained in this column (see 6 June), technically it would seem such an application should be refused unless planning permission exists to demolish the original extension. I would also comment that, unless certificate applications can be made in the "demolish x and build y" form, the LDC procedures would become very inflexible. An appeal decision from London (DCS Number 056-826-720) is an example of a decision where a LDC was granted where an outbuilding had to be demolished before an extension could be built as permitted development. JH.

My authority refused a certificate of lawfulness for existing use or development (CLEUD) application for use of an outbuilding at a dwelling as an independent holiday let on the basis of a lack of evidence. We then served an enforcement notice requiring cessation of the use, allowing a lengthy period before the notice came into effect so that the applicants could resubmit the CLEUD claim with the further evidence required. No further application was submitted and no appeal was lodged against the enforcement notice. After the notice came into effect, an appeal against the initial CLEUD refusal was lodged. The appeal paperwork was accompanied by the additional information that we had previously requested, showing that the applicants had used the unit for more than four years. Can an inspector now grant the certificate on appeal, considering that a valid enforcement notice has now taken effect? SW.

Under section 191(2) of the Town and Country Planning Act 1990 as amended, a CLEUD cannot be granted when there is a valid enforcement notice in place, so the appeal would not seem to have any prospect of success. Having said that, your authority has two courses of action open to it. It could insist that the enforcement notice is complied with and take out a prosecution if necessary. Alternatively, it could take the view that the notice became effective through a technicality on the basis that the use was immune under the four-year rule, and use its discretion under section 173A of the act to withdraw it. JH.

A council receives an application for a certificate of lawfulness prior to 1st October 2008 and determines the development within the curtilage of a dwelling is lawful as it is permitted under the former General Permitted Development Order, but the development is not implemented until after 1st October when it no longer fulfils the appropriate criteria. Can the council take enforcement action, bearing in mind a valid lawfulness certificate exists? RE.

A certificate of lawfulness application should be determined on the basis of whether the works are permitted on the date the application is submitted. If there is a subsequent change in circumstances, even whilst the application is being processed, that should not affect the decision. In the circumstances of your example, there is an anomaly in that a certificate will exist for the development, but it will not be permitted development as there has been a "change of circumstances" under the provisions of section 192(4) of the Town and Country Planning Act 1990, as amended. This is an unfortunate consequence of legislation changing and there is scope for problems as your scenario demonstrates. In such circumstances the council might choose not to take enforcement action, of course. JH.

Does anyone have recent experience of a certificate of lawfulness of existing use or development appeal determined by informal hearing? In spite of our opting for an informal hearing for a non determination case, the Inspectorate is insisting on a public inquiry citing a new internal policy. CG.

It should be noted that this query relates to an application lodged before 5 April when the new provisions for appeals came into play. I was involved in a similar case a while ago where an inquiry was held for a small domestic extension, in my view rather unnecessarily. The reason for the Inspectorate insisting on an inquiry is evidence on oath might be required. JH.

We have a proposal to locate a chemist’s shop in a doctor’s group surgery. Would this constitute a material change of use requiring planning permission and what rights would the shop have to display advertisements? GC

It is becoming common for chemists to be located within doctors group surgeries and this does raise interesting planning questions. Almost invariably this would constitute a material change of use as the shop would be an independent business not connected with the surgery with a separate tenancy and as it would serve not just serve patients visiting the surgery.

Regarding your query about rights to display advertisements, if the shop has a conventional shop window, illuminated advertisements within class 4B and other advertisements on business premises within class 5 of schedule 3 of the Control of Advertisement Regulations 2007 may be displayed with deemed consent. Whether the shop has a shop window or not, other categories likely to be relevant are class 2B signs identifying the business and class 6 advertisements on forecourts. A sign advertising medical supplies are available in all these classes except class 6 can be illuminated. JH.

A greenbelt site was granted a lawful development certificate for a landscape gardening business including storage and horticulture. In hindsight the description was not tight enough and probably should have been given as incidental storage. At the time a small amount of stone was stored which was used in contracts. Several months later a huge amount of stone appeared and it is regularly loaded onto Lorries which have to back into the road. The owner advertises as a stone merchant and cuts stone on site. He says 90% of the stone is used in the landscape business. Can an enforcement notice require him to remove the stone given that he has a lawful storage use? Case law indicates a change of use has to be more than intensification of a similar or the same use. Do you have a view on this which could help me draft an enforcement notice? CP.

This question demonstrates how it is important to be precise when granting lawful development certificates. In this instance, however, there is evidence that the use has changed from what was certificated to include a stone merchant’s business. An enforcement notice should require the use as a stone merchants to cease and the removal of any stone kept on site in relation to that activity. A requirement to cease the cutting of stone could also be justified if cutting was just carried out in connection with the stone merchant’s business. JH.

Can you clarify the planning authority's duties concerning publicity and consultation for applications for certificates of lawfulness of existing use and development?  Could you also clarify whether there are any statutory provisions that allow an authority to prevent the public inspecting supporting evidence before a decision? CE

There is no requirement to publicise or consult, not even to consult parish or community councils. I would, however, suggest that where there is an issue of the four or ten year rules, rather than a "legal" issue, such as whether an extension was permitted development when built, consultation would be appropriate. As far as I can verify, the only legislation covering the release of supporting evidence would be the Local Government (Access to Information) Act 1985 and the Freedom of Information Act 2000. Whilst I realise supporting evidence could be sensitive, it would be similarly desirable for it to be in the public domain as neighbours, etc would be able to produce counter evidence if it included false information. JH.

Land has been used as a domestic garden for almost 100 years, but the planning authority disputes this. We have therefore applied for a lawful development certificate with the description of the use as "residential garden and curtilage of dwelling" on the application. In refusing the application, the authority has amended the description to "use of land as residential land" claiming that curtilage is not relevant to the application. This ignores evidence as to what constitutes curtilage. We have requested an explanation of their stance but in the meantime I would be interested in your views bearing in mind that the General Permitted Development Order 1995 recognizes the concept of curtilage and that "residential land" does not necessarily mean the same thing. IE.

s191(4) of the Town and Country Planning Act 1990 (as amended) allows authorities to amend the description of a proposal for a certificate made under that section, so such a change is within their powers. I do consider your description to be clearer – for instance "residential land" could be land attached to flats which would not have permitted development rights. Ultimately, however, a s192 certificate application would have to be made to verify entitlement to permitted development rights, so any s191 certificate would not be conclusive in such respects. Unless you can persuade the council to grant an application e.g. by providing more evidence, and also amend the description; your only alternative would be to lodge an appeal and argue as part of your case that a different description should be used. JH. 

Response

The authority was correct to make this change. Certificates under s191 of the Town and Country Planning Act 1990 (as amended) are concerned with existing land uses and it is well established that "curtilage" is not a land use; hence the very many enforcement notices alleging "residential curtilage" that get corrected on appeal to "residential garden", "garden land" or similar. JH confuses or conflates planning units and curtilage. The residential planning unit does not attract permitted development rights and there are situations where the curtilage is smaller than the planning unit. To establish residential permitted development rights would require a s192 application but, as Circular 10/97 advises, it could not be made in broad terms, as JH seems to suggest,  but would have to relate to a specific proposal. AK.

Thank you for your clarification. On the last issue I was not intending to suggest making a s192 certificate in broad terms, but rather say a s191 certificate could not establish rights for to erect new buildings. JH.