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Wed 21 March 2018
If you are planning on selling, renting or mortgaging your property and you have breached planning laws in the existing use and development of your buildings or land, it may be sensible to consider formalising arrangements via a CLEUD application.
What Is a CLEUD?
A Certificate of Lawful Existing Use or Development (CLEUD) is a legal document (not a planning permission) issued by the Local Planning Authority that is generally used to regularise unauthorised development and prevent enforcement action being taken by that Authority against any breach of planning policy or conditions.
The certificate establishes that an existing use, operation or activity named in it is lawful and as such cannot be enforced upon.
In many situations, such as selling or mortgaging a property, a CLEUD can be vital to provide assurance to a prospective owner or security for a lender, that no enforcement action can be taken by the Local Planning Authority.
There are minimum time periods for eligibility depending on the type of development. The breach of planning must be continuous and current. An application for a CLEUD must be accompanied by evidence to show the following time limits have been exceeded:
Samuel & Son has been involved in a number of different CLEUD applications, such as:
Conversion of all or part of a farm building to a single dwelling – 4 years
Conversion of a farm building to a holiday let – 4 years
Living in breach of an Agricultural Occupancy Condition (AOC) – 10 years
Change of use of agricultural building or land to commercial/business use- 10 years
It should also be noted that the siting of a mobile home is always considered a change of use rather than a use as a single dwelling and is subject to the 10 year rule.
Unlike a full planning application, the issue of a Certificate depends entirely on factual evidence about the history and planning status of the land or building and the interpretation of any relevant planning law or judicial authority. The planning merits of the use and activity in the application are not relevant.
The onus of proof is squarely on the applicant to show to the Council, on the balance of probability, that the development complies with the minimum time periods stated above and that a certificate ought reasonably to be issued.
Evidence can be anything which helps support the case, but can include:-
In April 2012 the Government introduced new provisions to deal with deliberate concealment. If the Local Planning Authority consider a development has been deliberately concealed they can apply to the Court for an order giving them authority to have the breach of planning control ‘immediately’ rectified (i.e. in the case of the creation of a new dwelling, demolition will commence).
Until deliberate concealment is established through case law, it is difficult to ascertain exactly what will be considered ‘deliberately concealed’ although the Government has indicated it is only intended to remedy the most extreme cases and target the worst offenders, such as the case of the luxury home disguised in a hay barn.
Revocation of a Certificate
If a false statement is made or document used, or any material information is withheld, a Local Planning Authority can revoke a 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.
Building Regulations and Other Considerations
The grant of a certificate applies only to the lawfulness of development in accordance with planning legislation. It does not remove the need to comply with any other legal requirements such as The Building Regulations 2010, the Wildlife and Countryside Act 1981 or the Planning (Listed Buildings and Conservation Areas) Act 1990 or other licensing or permitting schemes.
Right to Appeal
An appeal can be made to the Secretary of State against the refusal of a Lawful Development Certificate in certain circumstances. A Secretary of State’s decision can be challenged in the High Court by the appellant or the local planning authority.
CLEUD territory is very complex and applications need to be considered very carefully.
Samuel & Son Chartered Surveyors offer a Planning Consultancy service covering East Sussex, West Sussex and southern Kent. We provide expert planning advice and assistance benefiting from a vast amount of experience in this field and have an excellent track record of success. Please call us to see if we can help you.