When do I need to apply for a Lawful Development Certificate?

Application for a Lawful Development Certificate for an Existing use, Proposed use, or Operation or Activity in Breach of a Planning Condition

Town and Country Planning Act 1990: Section 191 as amended by section 10 of the Planning and Compensation Act 1991. Town and Country Planning (General Development Procedure) Order 1995

An application for a Lawful Development Certificate form should be used to establish whether:

• an existing use of land, or some operational development, or some activity in breach of a planning condition, is lawful 
• a proposed use of buildings or other land, or some operations proposed to be carried out in, on, over, or under land, would be lawful 

Examples when an application for a Lawful Development Certificate should be made include:

• when planning enforcement action is taken by the local planning authority and the owner believes it is immune from action because the time limit for taking enforcement action has passed (see below) 
• when an owner discovers, in the course of a sale of the land, that planning permission has never been granted, and needs to show a prospective purchaser that no enforcement action can be taken by the local planning authority An application for a Lawful Development Certificate is also sometimes used 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 
• sub-division of the planning unit

Time limits

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:

• 4 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 limits have passed, the development becomes lawful, in terms of planning.

Information which must be provided with the application

Applications for Lawful Development Certificates should include the following information:

• whether the application relates to:

* a use 
* a building operation 
* a condition not complied with

• the date that 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 
• in the case of a breach of condition, details of the relevant application 
• the reasons the applicant thinks he is entitled to a Lawful Development Certificate 
• 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.

What information do I need to provide the council for established use?

For flats that have been in use for over 4 years:

1. Tenancy agreements (for a period of no less than 4 years)
2. Council tax bills for each flat
3. Utility bills addressed to each flat
4. Affidavit*
5. Statutory declaration*
6. Receipt/Invoice from builders
7. Photographs with dates
8. Certificate of completion of works from Building Control
9. Electoral roll for each flat

* Please note – a statutory declaration is not usually sufficient on its own and the Council are likely to expect other evidence as well, so that the balance of probability is in favour of the established use.

For commercial properties that have been in use over 10 years:

1. Tenancy agreement (for a period of no less than 10 years)
2. Photographs with dates
3. Receipt/Invoice from builders
4. Affidavit
5. Statutory declaration
6. Business Rates (for a period of 10 years)
7. Certificate of completion of works from Building Control
8. Records from Companies House
9. Tax Returns with address of the business
10. Utility Bills

The above list is only a summary of the most common evidence materials that may be accepted by the council, and is not exhaustive. For specific advice regarding your established use application, please contact a planning consultants at 4D Planning.

What the applicant needs to prove:

It is up to the person applying for a Lawful Development Certificate for an existing use to show the proper evidence. This could include:

• proof that any building was ‘substantially complete’ more than four years before the date of the application 
• proof that any use (or breach of condition) has been carried on continuously for a period of 10 years (four years in the case of a dwelling)

If the LPA has evidence, or reasonable grounds to believe, that the applicant’s claim is not correct, it may refuse a certificate.

Lawful development certificates are not relevant to situations where breaches of listed building or conservation area controls may be alleged.