Introduction
Our lawyers at Planning Clarity Legal are experts on planning law and regularly advise developer and landowner clients on lawfulness certificate applications to establish the lawfulness of existing or proposed development
In this blog post, we discuss the different types of these applications which you can submit to a Local Planning Authority (LPA) and the relevant factors in their determination
Types of lawfulness certificate applications
There are the following two types of certificates you can apply to a LPA for:
- Certificate of lawful existing use or development – This is a certificate confirming that an existing use of land, or some operational development, or some activity being carried out in breach of a planning condition, is lawful for planning purposes under Section 191 of the Town and Country Planning Act 1990 (the Act)
- Certificate of lawful proposed use or development – This is a certificate confirming that 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 for planning purposes under Section 192 of the Act
How are these applications determined by the LPA?
Lawfulness certificate applications are different to standard planning applications as these type of applications are determined by the LPA solely on the basis of evidence and law and the planning merits and any policy matters are irrelevant to the determination of the application. The LPA is required to determine whether on the facts of the case the specific matter is or would be lawful
The onus is on the applicant to prove on the balance of probabilities that a certificate ought reasonably to be issued and to provide sufficient evidence to support this. The LPA then considers whether there is sufficient evidence to issue a certificate. If there is not, it will be refused. A refusal of an application is not necessarily conclusive that the use or development is not lawful, it may simply mean that insufficient evidence has been presented to satisfy the LPA that the use or development is lawful
What happens if the LPA refuses the application?
If the LPA refuses to grant a lawfulness certificate application then this refusal can be appealed by the applicant submitting an appeal under Section 195(1) of the Act to the Planning Inspectorate (acting on behalf of the Secretary of State)
The Planning Inspectorate in its ‘Certificate of lawful use or development appeals: procedural guide’ states that it is expected that such an appeal should be made within 6 months of the date of issue of the LPA’s refusal notice. The Planning Inspector appointed for the appeal will consider based on the evidence and legal grounds put forward by the parties whether to grant the certificate
The Planning Inspector / Secretary of State’s decision on the appeal can then be subsequently challenged in the High Court by either the appellant or the LPA, but only on the grounds that the Planning Inspector / Secretary of State has got the law wrong or made a procedural error
How can we help at Planning Clarity Legal?
Our lawyers at Planning Clarity Legal are experts at acting for developers and landowners on lawfulness certificate applications. These applications concern matters of law which our specialist planning lawyers are perfectly placed to advise on. Depending on a client’s requirements and where they are in the process, we can either fully prepare an application, review and provide our comments on the evidence to be submitted in support of an application, or advise on the prospects of an appeal where an application has been refused
Note: all comments and views expressed in this blog are merely opinions and provided for information purposes only and do not constitute legal advice which can be relied upon. Should you require legal advice on a matter then please contact us
