Planning Practice Note:
Certificates of Lawful Use or Development (LDCs)
INTRODUCTION
The purpose of this Practice Note is to give information and advice on the law and practice of Certificates of Lawful Use or Development otherwise known as LDCs.
The law and practice of LDCs is complex. Anyone thinking of making an application is advised to seek help before doing so:
- from the LPA; and
- from their own solicitor or agent.
WHAT IS A CERTIFICATE OF LAWFUL USE OR DEVELOPMENT?
Certificates of Lawful Use or Development are certificates, issued by the LPA, which establish conclusively that a use or development of land is lawful in two circumstances:
- when it is clearly demonstrated that an existing use or development is of such long standing as to be immune from enforcement action (CLEUD);
- when it clearly demonstrated that a proposed development or use does not require planning permission (CLOPUD).
BACKGROUND
The Town and Country Planning Act 1947 introduced the concept of 'established use' in relation to pre-war uses that could be carried on or resumed without the need for planning permission.
The Town and Country Planning Act 1963 amended the legislation when the post-war provisions were no longer required. Under the new Act uses that had been commenced before 1 January 1964 were 'established'.
By the late 1980s, these provisions were considered hopelessly out of date for two reasons:
- it was becoming increasingly difficult to prove uses had been established before 1964, merely because of the passage of time;
- increasing numbers of unlawful uses were caught in the limbo of neither being approved by planning permission nor being actively subjected to enforcement action.
This was widely felt to be unsatisfactory. Accordingly the Planning and Compensation Act 1991 amended the law to introduce a rolling time limit within which LPAs can take planning enforcement action against breaches of planning control. The time limits are:
- 4 years for the construction of buildings and the use of buildings as dwellings;
- 10 years for uses of buildings and land and all other breaches of planning control.
The 1991 Act also amended the previous law on applications to determine whether planning permission is required in particular case.
The government is considering changes to the law to overcome some currently perceived shortcomings in its operation.
CLEUDs
CLEUD stands for Certificate of Lawfulness of Existing Use or Development. Applications for CLEUDs usually arise from one of two circumstances:
- planning enforcement action is taken by the LPA and the owner believes it is immune from action by virtue of the time limit mentioned above;
- the owner discovers, in the course of a sale of the land, that planning permission was never obtained, and needs to show a prospective purchaser that no action can be taken by the LPA.
Making an application
Applications for CLEUDs must be made on a form provided by the LPA and must contain the following information:
- whether the application relates to:
- a use;
- a building operation;
- a condition not complied with;
- the date the use (or breach of condition) started or the date on which the building was substantially complete;
- any use class the applicant considers to be applicable (see BVPN 34);
- BVPN 34 Changes of use
- (in the case of a breach of condition), details of the relevant application;
- the reasons the applicant thinks he is entitled to a CLEUD;
- any other relevant information;
- a plan identifying the land;
- a certificate as to the applicant's interest (ownership, tenancy etc.) in the land and any interest of any other person.
The onus of proof
It is necessary for the applicant to show with proper evidence:
- that any building was 'substantially complete' more than 4 years before the date of the application;
- that any use (or breach of condition) has been carried on continuously for a period of 10 years (4 years in the case of a dwelling).
Mere assertion on these points is not sufficient. If the LPA has evidence, or reasonable grounds to believe, that the assertion of the applicant is not correct, it may refuse a Certificate.
CLOPUDs
CLOPUD stands for Certificate of Lawfulness Of Proposed Use or Development. This provision is seldom used because it is normally clear from the description of a proposal whether or not it needs planning permission.
A CLOPUD application is sometimes useful in cases involving intensification of use or where the precise nature of the existing use is difficult to describe such as:
- secondary uses;
- mixed uses;
- intensification;
- subdivision of the planning unit.
Making an application
Applications for CLOPUDs must be made on a form provided by the LPA and must contain the following information:
- whether the application relates to:
- a use;
- a building operation;
- any use class the applicant considers to be applicable
- the reasons the applicant thinks he is entitled to a CLOPUD;
- any other relevant information;
- a plan identifying the land;
- a certificate as to the applicant's interest (ownership, tenancy etc.) in the land and any interest of any other person.
FEES
LDC applications carry the same fee as they would if planning permission were being applied for.
NOTIFICATION AND PUBLICITY
LDCs are a matter of law and evidence. There is no requirement for publicity for them. However, the Council does normally consult Parish and Town Councils on LDC applications (and posts a site notice) because this process can produce useful information relevant to the determination of the application.
PROCEDURE FOR DECISIONS
Because LDCs are a matter of law and evidence, decision-making is delegated to officers.
LDCs are decided purely on whether they satisfy the legal requirements. The cannot be refused because the development would not receive planning permission.
APPEALS
Refusals of LDCs are subject to appeal in the normal way.
PLANNING PERMISSION
An LDC shows only that planning permission is not required. When an LDC is refused, planning permission may be granted in the normal way, if an acceptable application is made.
CONTACTS
Planning Support Tel: (01584) 813000
© Copyright South Shropshire District Council,
Stone House, Corve Street,
Ludlow, Shropshire, SY8 1DG.
Tel: (01584) 813000
Fax: (01584) 813128
e-mail: planning@southshropshire.gov.uk
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Subscribe to changes to this page here.Author: Planning and Building Control. Last Updated: 14/2/2007.
