Making your Lawful Development Certificate appeal (Guide)

Appendix 5

The purpose of the system

Sections 191 and 192 of the Town and Country Planning Act 1990 (the 1990 Act) provide for anyone (not just a person with a legal interest in the land) to apply to the local planning authority (LPA) for a lawful development certificate. A certificate is a statutory document certifying:-

(a) in the case of an application under section 191, the lawfulness for planning purposes, of existing operations on, or use of land, or some activity being carried out in breach of a planning condition; or

(b) in the case of an application under section 192 the lawfulness of proposed operations on, or use of land.

A lawful development certificate has no function in determining whether consent may be required under other legislation such as the Planning (Listed Buildings and Conservation Areas) Act 1990.

What “lawfulness” means for planning purposes

Uses and operations are “lawful” if no enforcement action may be taken against them and they are not in contravention of any enforcement notice which is in force. A failure to comply with any condition or limitation, subject to which planning permission has been granted, is “lawful” if the time for taking enforcement action in respect of the failure has expired and it does not constitute a contravention of any enforcement notice or breach of condition notice which is in force.

What a certificate does

A certificate granted for an existing use, operation or activity will specify (by reference to a plan or drawing) the area of land included in the certificate and describe the precise nature of the use, operation or activity which is certified as lawful. The certificate will not protect you from enforcement action by the planning authority if you subsequently change the specified use ‘materially’ without making a planning application for it. For example, a certificate may specify that a haulage contractor’s site can be used lawfully for the parking of a defined number of heavy goods vehicles, of a specified capacity or size, and specify the areas of the site which have been used for vehicle maintenance purposes. Or it may specify the area used for the storage of pallets and the maximum height to which they are to be stacked. Or it may specify the hours during which any operations have taken place on the site. If you do something materially different from that set out in the certificate, the LPA may be able to take enforcement action against you.

A certificate granted for a proposed use or operation will describe the precise use or operations on a site in the terms considered permissible without the need to make a planning application for it.

The certificate will always give reasons why the use, operations or activity is, or would be, lawful. It will conclusively establish the lawfulness of the use, operations or activity covered by the certificate. A certificate granted for an existing use, operation or activity will not protect future development on the site. For example, an extension to an existing building described in the certificate, or the intensification of an existing use will not be covered. A certificate granted for a future use or operation will protect future development, but only if that future development is as described in the certificate and is undertaken before there is any material change in relevant circumstances. If the limitations specified in a certificate are exceeded, the landowner or occupier may be liable to enforcement action by the planning authority for any resulting breach of planning control.

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