Lawful Certificates of Development – A Useful Planning Tool

29th November 2018

What is a Lawful Certificate of Development

It is possible to apply to the Local Planning Authority (LPA) for a confirming the lawful use of buildings or land which does not have planning permission or the use of that land in breach of condition imposed on the planning permission (LCD).

The certificate will be issued if it is no longer possible for the LPA to take enforcement action against that unlawful use because the time for enforcement action has passed. The relevant time limits are four years for the creation of a separate dwelling and operational development and ten years for other uses.

It is for the Application to prove on the balance of probabilities that the use described in the application has been in continuous use for the relevant period and that use continues to the date that the application is made. Usually, the application includes at least one sworn Statutory Declaration setting out the facts in some detail. The application should be granted unless the LPA has any contrary evidence to outweigh the evidence submitted.

When and why to use a Lawful Certificate

A LCD is an extremely useful planning tool. It is often essential if trying to sell a property with a long time use on it but without formal planning permission. A prudent purchaser will not be willing to invest until there is formal documentation for the lawful planning use.

It is also a great way to add value to a site as any certificate issued cannot be conditioned by the LPA. The certificate issued is a benchmark for the future use of the site and often allows an intensification of the use of the site without the need for a planning permission. It is of no consequence if the lawful use applied for is contrary to current planning policy and would not normally be granted planning permission.

Often the LPA is unwilling to commit itself to agree what is the existing lawful use on a site without making such an application. This can stall negotiations with the LPA that can be unlocked by a LCD application. Planning histories are often complex and this application clarifies the planning status of a site for both the LPA and prospective purchasers.

A LCD application can also be used to confirm that a planning permission has been implemented.

The applications can be used for domestic and commercial sites both listed and unlisted buildings and those in Conservation Area.

When to put in a LCD application can be critical and a timely application can crystallise the unlawful use of a site making an unacceptable use lawful. This can then be used as a fall-back position and a valuable permission to ‘trade’ for another use more acceptable to the LPA.

Once the unlawful use ceases then the ability to apply for LCD is lost.

Crystallising lawfulness of existing unlawful uses

Once a LCD has been granted the lawful use of the site is then confirmed and provides a starting point against which any future planning applications or intensification of uses on the site will be judged by the LPA. It is not unusual for a LCD to be used to make a further planning application acceptable in planning policy terms. The LCD is an unconditional formal confirmation of the lawful use of the site. IF this is a use that is not attractive to the LPA it is a very handy fall-back position to use in negotiations with the LPA.

Confirming implementation of a planning permission

A LCD can be applied for when it is proposed to implement a planning permission but not immediately proceed to complete the development. Often if the planning consent is about to expire this is highly advisable and can avoid disputes with the LPA in due course. It also confirms to a prospective purchaser that the planning permission has been lawfully implemented.

Establishing curtilages and uses of land

Even in cases where a LCD has been applied for this may have been done in a manner which does not maximise the value of the land. Often there are curtilages and access ways which have not been included in the original LCD application and a furhter application with a more detailed analysis of the planning history can add a significant area of land to the lawful use and hence increase the value of the site.

Further often the lack of thorough analysis of the planning history and uses on the site can mean that the LCD has been granted which is more restrictive than could be achieved.

Examples of LCDs successfully achieved by Bell Cornwell

Bell Cornwell will assist you in finding the right solicitor for your project. A few of the many LCD successes achieved for our clients include:

  • East Devon District Council – Confirmation of lawful mixed use of land and buildings for residential use caravan storage and B8 storage on countryside land previously in agricultural use
  • Waverley Borough Council – Expansion of mixed commercial use curtilage and access way on land previously subject to a limited LCD on a smaller site in the Green Belt and ANOB
  • Harrow LBC – Confirmation of lawfulness of operational development and building of a  mezzanine floor  in a commercial building in breach of conditions
  • Royal Borough of Kensington and Chelsea – Confirmation of lawful implementation of an amalgamation of two separate dwellings into one in a listed building by proving the carrying out of a material start to the approved works
  • Westminster City Council – Confirmation of lawful use of a property as a single dwelling following the  amalgamation of three separate  properties into one dwelling by the carrying out of alterations to the building
  • Hart District Council – Confirmation of lawfulness of office and B8 storage use on agricultural land and buildings together with access and curtilage in the countryside
  • Horsham District Council Confirmation of lawful use of two separate dwellings caravan storage B2 workshops and mixed-use storage and retail on old nursery site in the countryside.

All the above examples are contrary to planning policy so would not be granted planning permission. Bell Cornwell has had many more successes than those listed in this article, including the lifting of occupancy conditions both on residential and commercial properties in many different Council areas.

If you need assistance with an LCD or for more information please contact us on 01256 766673.



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