At ethical partnership we have secured approval for a lawful development certificate earlier this month for a client in Selby. This application sought to regularise the intensification of uses on site. But what exactly is a lawful development certificate?
A Lawful Development Certificate is a legal document stating the lawfulness of past, present or future development. If granted by the local planning authority, the certificate means that enforcement action cannot be carried out against the development referred to in the certificate.
The certificate is not a planning permission. The planning merits of the use, operation or activity in the application are not relevant. The issuing of a certificate does not reply upon the interpretation of any relevant planning law or regulation.
The issuing of a certificate by a local planning authority depends only on factual evidence about the history and status of the building or other land. There is no prescribed form for the submission of an application for a Certificate of Lawful Development. The obligation is upon the applicant to merely provide sufficient evidence to support the application.
Section 10 of the Planning and Compensation Act 1991 established a procedure that enables anyone who wishes to do so, may apply to the local planning authority to determine whether a proposed use or operation, or an existing operational development or an existing use of land, or any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted, is lawful, and if so, be granted a certificate to that effect.
The Planning and Compensation Act 1991 introduced rolling time limits within which local planning authorities can take planning enforcement action against breaches of planning control. The time limits are:
- four years for building, engineering, mining or other operations in, on, over or under land, without planning permission. This development becomes immune from enforcement action four years after the operations are substantially completed
- four years for the change of use of a building, or part of a building, to use as a single dwelling house. Enforcement action can no longer be taken once the unauthorised use has continued for four years without any enforcement action being taken
- 10 years for all other development. The 10-year period runs from the date the breach of planning control was committed.
Once these time periods have passed, the development becomes lawful and subject to an application may receive a certificate as set out above.
Government guidance states that the onus of proof is based firmly on the applicant and a certificate of lawfulness may be refused on the basis that insufficient evidence has been included along with the application. Critically, the relevant test of the evidence is the ‘balance of probability’.
If the Council do not have any evidence to contradict the applicant, or make the applicant’s version of events less probable, there should be no reason to refuse the application. The applicant’s evidence should, however, be sufficiently precise and unambiguous which we believe is the case here to justify a grant of a certificate of lawfulness.
At ethical partnership we have a wide breadth of knowledge regarding planning matters. For this recent site in Selby, we were able to collate the appropriate evidence to prove that the use of the site was in excess of ten years. This was vital in securing the Certificate of Lawfulness for the client.
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