ITS TIME TO GET CLEUD UP ON CERTIFICATE OF LAWFUL EXISTING USE AND THE IMPLICATIONS OF THE OCADO CASE
What is a CLEUD?
A Certificate of Lawful Existing Use or Development (CLEUD) is a certificate that is legally granted by a Local Planning Authority (LPA) under section 191(1), Town and Country Planning Act 1990 (TCPA), certifying that the:
- Existing use of buildings or land, or operations carried out in, on, over or under land, or the failure to comply with any condition or limitation attached to planning permission is lawful.
What is lawfulness in relation to CLEUDs?
In relation to CLEUDs, under section 191(2) and (3) TCPA 1990 lawful development is development:
- Against which no enforcement action can be taken.
- Not in contravention of any planning enforcement notice or breach of condition notice which is in force.
A CLEUD must be accompanied by evidence to show the following time limits contained in section 171B TCPA 1990 have been exceeded:
- Four years for buildings, 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 four years without any enforcement action being taken.
- Ten years for all other development- the ten-year period runs from the date on which the breach of planning control was committed and must involve continuous breach . The ten-year period relied upon can be sometime in the past and does not have to immediately precede the date of application.
Once these time limits have passed, the development becomes lawful in planning terms and can subsequently be certified by a CLEUD from the LPA.
Why might you need a CLEUD?
A CLEUD is a worthwhile document, and whilst it is not planning permission, it can provide legal certainty that specified uses or operations are lawful at a point in time. Obtaining a CLEUD may be necessary for the following reasons:
- To certify that an ongoing breach of planning condition or development carried out without planning permission is now lawful;
- If a local council threatens enforcement action and you believe the time for action has passed (as per above timescales);
- If you are planning on selling or mortgaging your property and planning permission was not granted, and you need to assure a prospective buyer that enforcement action will not be taken; or
- It may be a condition precedent to the draw-down of finance or completion of a lease agreement or a sale.
Article 39 of the Town and Country Planning (DMP) Order 2015 specifies the application’s content for a CLEUD and how it must be submitted. The application will need to precisely describe what is being applied for (not simply the use class) and the relevant statutorily prescribed fees payable.
- The statutory determination period is eight weeks or such extended period as agreed in writing with the applicant.
- The matters to be determined are solely matters of evidence and law. The LPA needs to decide whether, on the facts of the case, the specific matter is or would be lawful. This will depend on the history and planning status of the use or operations.
- The onus is on the applicant to prove on the balance of probability that a CLEUD ought to reasonably be issued. In Ocado the court said that the applicant for a CLEUD could not rely nor expect the LPA to find information on its records in support of the application.
- It is usual for legal opinions and/or statutory declarations to accompany an application for an LDC to provide an overview of case law and legislation, along with factual evidence in respect of the planning status of the land.
- Evidence can be anything which supports the case but can include:
- Plans / photographs (dated)
- Statutory declarations (signed in the presence of a solicitor)
- Utility bills
- Receipts for materials or services
- Leases and tenancy agreements
Anything that shows that the development meets the necessary time scales for a CLEUD application by reasonable probability can be used as proof during the application.
Revocation of a CLEUD
An LPA may revoke a CLEUD if, on the application for the certificate:
- A statement was made, or document used which was false in a material particular.
- Any material information was withheld
In the recent Ocado case a thorough review of the principles of the law on revocation was made. The correct tests are whether, in the LPA’s view, withheld information is of sufficient relevance to be material and that it being withheld could have affected the determination of the application. Moreover, an applicant can be treated as having withheld information even if that information was in the possession of the LPA and on its records. As mentioned above, the onus is on the applicant to provide all the information it wishes to rely upon in support of the application.
The Ocado case concerned the grant of a CLEUD that certified a warehousing use had continued for more than ten years in breach of condition. However, a local opposition group protested and petitioned the council to revoke the CLEUD, on the grounds that material information had been false or withheld. Whilst the CLEUD application stated that the entire estate has been continually used as a warehouse since 1992, two of the units had been vacant in that period. The LPA agreed and revoked the CLEUD on the basis that the information, though not deliberately misleading, was material.
This case is an important reminder that it is essential to check the information being submitted in support of a CLEUD is factually correct. Moreover, that a complete picture of the history of the planning unit since the relevant use or breach of condition is available. For this reason, preparing a CLEUD application would benefit from a legal review.
The procedure for revocation is set out in article 39 of the DMPO. The LPA must give notice of the revocation proposal and allow representations to be made before the LPA makes its decision.
Revocation of a CLEUD may expose the owner or occupier to immediate enforcement action with no compensation being payable. There is no right of appeal against a revocation, but it may be challenged by way of judicial review as it was in Ocado.
Our Planning Team have extensive experience of CLEUDS and Certificates of Lawfulness for Proposed Use or Development, both for Local Planning Authorities and for individuals and companies. Should you require assistance, then please get in touch with our Planning Team.
This note is not intended to substitute legal advice from your instructed lawyer. You should always consult with your lawyer directly regarding any specific queries you may have.