The planning system provides the possibility of obtaining a statutory document confirming that an existing or proposed use, operation or activity of a building or site is lawful in respect of the Town and Country Planning Legislation. This page gives information on the types of certificates available and how to apply for one.
If granted, a Lawful Development Certificate is legally binding confirmation that a 'development' is or would be lawful and thus immune from enforcement action at the time of issuing the certificate. If a Certificate is granted, it will be worded to precisely identify the full extent of any lawful uses, operations or other matters, and will include a plan to show the land or buildings in question. Refusal of an application may raise questions of whether the applicant should submit a retrospective planning application or whether the Authority should consider formal enforcement action to remedy the breach of planning control.
If you require a formal decision as to whether an existing or proposed development is lawful, then you can submit an application for a Certificate of Lawfulness. There are two kinds of the certificate that can be applied for:
- Certificates of Lawful Existing Use or Development.
- Certificates of Lawful Proposed Use or Development.
Anyone can make an application but the burden of proof in an application for a Certificate of Lawful Development lies firmly with the applicant and therefore clear and precise information, supported by sufficient evidence, must be provided to enable the Council to make a complete and accurate assessment against current planning legislation. The Council must be satisfied that on the ‘balance of probability’ the development carried out is lawful. If the evidence provided with the application is considered to be inadequate, then the application is likely to be refused on the basis of lack of evidence. This would not prevent a further application should more clear and precise evidence become available. Applicants are therefore strongly advised to provide as much clear and precise evidence as they can when submitting the application.
The planning merits of the use, operation or activity in the application are not relevant in the consideration of whether the development is lawful or not as the issue of a certificate depends entirely on factual evidence about the history and planning status of the building or other land and the interpretation of any relevant planning law or judicial authority.
Certificates of lawful existing use or development
Section 191 of the Town and Country Planning Act (as amended) allows a person to make a formal application for a Certificate to determine whether an unauthorised development has become lawful through the passage of time, and can be continued without the need for planning permission.
A Certificate of Lawful Existing Use or Development can be obtained where:-
- There has been a continuous use of land or buildings (other than a dwelling) for more than 10 years.
- A condition or limitation on planning permission has not been complied with for more than 10 years.
- The building or other operations have been completed for more than 4 years.
- A building (not land) has been used as a dwelling for more than 4 years.
- The applicant believes that planning permission would not have been required for their development but requires a formal confirmation from the Council.
- If permission was granted, whether the development complies with all the conditions attached.
Certificate of lawful proposed use or development
Section 192 of the Town and Country Planning Act (as amended) allows an applicant to clarify whether a proposed use or development requires planning permission, or whether a proposed development already has planning permission (i.e. is considered to be Permitted Development by virtue of a Development Order), or is lawful by some other reason. Approval will confirm that the use, operations or other matter applied for would be lawful if carried out in the manner stated in the Certificate. A refusal will point to the need for a planning application before the use, operations or other matter, are undertaken.
How to submit a certificate of the lawful development application
There are essentially three ways you can apply for a Certificate of Lawful Development.
You can apply online using the Planning Portal. This enables you to submit your application electronically.
You can also download a copy of the application form and guidance notes below. Please ensure that you select the correct application form.
14. Lawful Development Certificate Application- Existing Use or Development
15. Lawful Development Certificate Application- Proposed Use or Development
Application for a Lawful Development Certificate for a proposed use or development.
Alternatively, a paper copy of the forms can be collected from the Council Offices or sent out to you on request.
There is a fee payable when your application is made. The current fee regime is broadly linked to the fee payable for a planning application. In brief (although there are exceptions) the fees are:
- For an application for Certificates of Lawful Existing Use Or Development the fee is the same as for an equivalent planning application.
- For an application for a Certificate of Lawful Proposed Use or Development, the fee is half of the fee for an equivalent planning application.
What can I do if my application is refused?
If a properly made application is wholly or partly refused, or it is granted in a different form from the application or is deemed to have been refused (because the authority has not determined the application within the time limit of eight weeks of receiving the completed application), you can appeal to the Planning Inspectorate. Further details of the appeal process can be found on the Planning (and Associated) Application Appeals page of the web site.
You can also make an application for planning permission (which if you applied for a Certificate of Lawful Proposed Use or Development is the most logical action unless you wish to contest that planning permission is not required).
Possible revocation of a certificate
If a false statement is made or document used, or any material information is withheld, the planning authority can revoke a Lawful Development Certificate. The revocation of a certificate may make the owner or occupier liable to immediate enforcement action to remedy what will then usually be a breach of planning control.
There is no appeal to the Secretary of State against an authority’s decision to revoke a certificate. But the decision may be contested in the High Court on the ground that the authority acted unreasonably in making the decision. For this purpose, legal action in the Court must usually start within three months of the decision. You are strongly advised to consult a lawyer before taking any legal action in the Court.
Section 194 of the Town and Country Planning Act 1990 (as amended) provides that if any person, for the purpose of procuring a particular decision on an application (whether by the applicant or another) for a Lawful Development Certificate, knowingly or recklessly makes a statement which is false or misleading in a material particular; or, with intent to deceive, uses any document which is false or misleading in a material particular, or withholds any material information, that person is guilty of an offence which is "triable either way". On summary conviction in the magistrates' court, the penalty is a fine not exceeding the statutory maximum (currently £5,000). On conviction on indictment in the crown court, the convicted person is liable to imprisonment for a term not exceeding two years, or to an unlimited fine, or both.
The grant of a certificate applies only to the lawfulness of development carried out, or proposed, in accordance with the Town and Country Planning legislation. It does not remove the need to comply properly with any other legal requirements, such as consents required under the Building Regulations, the Wildlife and Countryside Act 1981, or the Listed Building and Conservation Areas Act 1990.
Last updated: Wednesday, 15 July 2020 4:02 pm