Free sample from ”Certificates of Lawful Use and Development: A Guide to Making and Determining Applications’ by Bob Mc Geady & Meyric Lewis’

CHAPTER ONE
THE BASICS OF A CERTIFICATE OF LAWFULNESS OF EXISTING USE AND DEVELOPMENT

Section 191 of the Town and Country Planning Act 1990 envisages three circumstances where a certificate may be issued. Two relate to unauthorized development and the third relates to development in breach of a condition. Subsection (1) of Section 191 provides as follows;

If any person wishes to ascertain whether-


(a) any existing use of buildings or other land is lawful;

(b) any operations which have been carried out in, on, over or under land are lawful; or

(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,

he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.”

The first question that therefore needs to be asked is “What type of development are we concerned with?” This question is more than academic as we shall see, as there are different time limits that apply depending upon the form of development involved. Just to complicate matters it may be necessary to engage both forms when seeking a certificate.

So what does development entail? The answer is provided by section 55(1) of the Town and Country Planning Act 1990. This provides as follows;

Subject to the following provisions of this section, in this Act, except where the context otherwise requires, “development” means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of buildings or other land”

Before we explore the issues associated with the different forms of development it is necessary to remind ourselves that there are various matters that do not constitute development. These are contained in subsection 2. This includes such things as development undertaken in reliance on permitted development rights. There was an indication in Annex 8 of Circular 10/97 that a certificate could be granted in respect of such development. This is continued in paragraph 011 of the NPPG which states that “a lawful development certificate can be granted on the basis that there is an extant planning permission….” However, the question has to be asked how development can become lawful on the expiry of the relevant time limit for taking enforcement action when to undertake the development in the first place did not require planning permission. If there is any doubt as to whether or not such development is lawful then an appropriate application would be for a Certificate of Lawfulness of Proposed Use or Development (CLOPUD) where a certificate can establish that it would be lawful to retain the development or to continue to use it on the basis that permission was deemed to have been granted for the development to have been constructed or used in the first place.

An example of this is Eatherley, “the basement case” ie Eatherley v. London Borough of Camden [2016] EWHC 3108 (Admin) in which the requirement for planning permission in relation to the creation of a basement beneath a residential dwellinghouse was tested in the courts. In Eatherley, the householder wished to establish that excavation of a basement beneath his home was covered by the general permission granted by article 3(1) and Class A in Part 1 of Schedule 2 to the GPDO 2015 for development involving “the enlargement, improvement or other alteration of a dwellinghouse”. This was against the background of the controversy caused in London in particular by the disruption caused by people enlarging their houses by digging out extra living space at basement level. The Council duly granted the householder a CLOPUD under section 192 but this was challenged by a neighbour, Mr Eatherley. The main argument on the construction of the GPDO succeeded but the certificate was quashed on a detailed point on the facts.

The most recent guidance as contained in the National Planning Policy Guidance is unclear. Paragraph 003 of the relevant part of the Guidance provides the current guidance. It says;

In summary, lawful development is development against which no enforcement may be taken and where no enforcement notice is in force, or for which planning permission is not required.”

Paragraph 003 is non-specific as to whether it is only referring to CLEUDS or whether it includes or is limited to CLOPUDS. The situation seems to the writers to remain the same in that if permission was not required in the first place then the appropriate means for establishing lawfulness is via a CLOPUD rather than a CLEUD.

The simple question therefore seems to be to establish what development is involved and whether or not an enforcement notice is in force. In this respect it is important to remember that for the purposes of section 191 an enforcement notice also includes a Breach of Condition Notice. However, just because there is an enforcement notice does not automatically mean that a claim for immunity will fail as the actual breach for which a certificate is sought may not be a breach of the enforcement at all. This is why it is so important to look at the precise contents of enforcement notices and see how it relates to the use or development that is now alleged to be immune. The two may not exactly correlate and there could be a situation where a further breach has occurred that the council thought was covered by the enforcement notice but in reality it hadn’t been. For example, if an enforcement notice prohibited the sale and display of cars but the use then changed to the storage of cars for sale elsewhere and the council did not get around to taking action or were unsuccessful in a prosecution the claim for immunity could be made out if a further enforcement notice has not been served.

The second element here is the requirement for the enforcement notice to be “in force”. It is necessary to consider situations where a notice had been complied with or has even been withdrawn. Whilst compliance with a notice will ensure that subsequent development of the same kind will be prevented by the issued enforcement notice it is not unknown for LPA’s to withdraw notices when they perceive there has been compliance without thinking about the long-term consequences. When undertaking due diligence on a site solicitors will often ask for historic enforcement notices to be removed. Provided a risk-based approach is taken by local authorities this should not cause undue difficulty. For example, if the land subject to the enforcement notice has been subsumed into a much larger site which has then been re-developed then the removal of the enforcement notice will not cause any difficulties. However, if the site remains as when the notice was issued then removal will have more implications for the future.

Looking at the interaction of enforcement notices and CLEUDS the case of R v Challinor [2007] EWCA Crim 2102 deals with the situation. In the Challinor case the landowner was prosecuted for breaching an enforcement notice. He tried to rely on the fact that a certificate had been granted for part of the site affected by the Enforcement notice. The Court of Appeal held he could not challenge validity of notice other than by appeal in normal way under section 174 of the Planning Act 1990. Therefore, if you are confronted by such a situation you will need to ensure that you check the position as regards the notice and the certificate.

Section 191 is also concerned with breaches of condition. Whilst it will be fairly clear as to whether or not there is a breach of condition one issue that might arise is whether or not the condition itself is valid. The case of Basingstoke and Deane v Secretary of State [2009] EWHC 1012 (Admin) dealt with the question as to whether or not the imposition of a condition could be revisited. In that case an application was made for two agricultural workers cottages. The condition restricting the use of the cottages to agricultural workers was imposed at the request of the applicant in order to avoid paying a development charge. The properties had a chequered use with breaches of the condition from time to time. A certificate was applied for and granted on appeal by an Inspector on the basis that there could not have been a breach of the condition as it had been invalid from the outset.

The council challenged the decision on the basis that the condition was one that could have been properly imposed and could thus attract enforcement action. The court held that the condition was capable of being a proper condition. However, the reasons why a condition were imposed were of considerable importance1 and in this case as the condition was not imposed for proper planning purpose it was invalid.

In such circumstances, an applicant may be able to succeed in an application for a CLEUD on the basis that the development was carried out unlawfully having been implemented in breach of a condition precedent and so the development carried out is not subject to the conditions originally imposed on the planning permission for it (which was not complied with). This may be significant in particular where planning permission is granted for a dwelling subject to a restriction on occupancy. If the development was not lawfully implemented, then the occupancy restriction will not “bite”. It needs to be borne in mind, however, that the use of such a dwelling will not automatically be lawful. We discuss this aspect further with reference to the Welwyn Hatfield case below.

This case is likely to lead to more scrutiny of conditions when either enforcement action is contemplated or a landowner is considering an application where there may or may not have been a breach of condition. The fact that planning permissions in the modern era have to specify reasons for the imposition of conditions will make life a bit easier but there may still be a need to go through the planning file and even seek information from previous landowners and applicants.

Pre-Commencement Conditions and Commencement

A major area for debate where conditions are concerned is the situation where planning permission was granted subject to conditions to the effect the “no development shall commence” unless and until certain pre-conditions have been satisfied, requiring prior approval of some aspect of the development before it can start. It often happens that development is commenced before a particular condition in that (or similar) form has been discharged and so the question arises whether the commencement of development was unlawful as being carried out in breach of condition so that the development itself does not benefit from planning permission.

The courts have long taken the view that works carried out in breach of a condition in the form “no development shall be carried out until…” will not be sufficient to amount to lawful (our emphasis) implementation of a planning permission, see Clwyd CC v. Secretary of State [1982] JPL 696 per Forbes J at 699 (upheld in the Court of Appeal on other grounds at [1983] JPL 50) and Etheridge v. Secretary of State [1984] JPL 340 per Woolf J at 343. Etheridge was expressly endorsed by the Court of Appeal in Oakimber v Elmbridge Borough Council [1992] JPL 48.

The classic statement of the principle in the above cases comes from another Court of Appeal case, FG Whitley v. Secretary of State [1992] 3 PLR 72. The statement in that case is in fact so classic that it has come to lend its name to the principle (although as we shall see the case itself represents an exception to that principle).

In Whitley, the facts were as follows. Permission had been granted in 1973 for the extraction of minerals subject to a number of conditions. Conditions 2, 3 and 4 in effect provided that no working should take place except in accordance with a scheme to be agreed with the local planning authority or, failing agreement, as should be determined by the Secretary of State. Condition 11 stated: “The development hereby permitted shall be begun on or before 30.11.78”

The developers applied 16 months before the deadline for approval of a scheme but the planning authority took no decision until 26 October 1978 when they refused approval. The developers appealed. The Secretary of State did not give his decision before 30 November 1978, which was the deadline under the permission. In fact, he did not finally issue his decision until 1982. But when he did, he approved a scheme which did not materially differ from the one which had been submitted in 1977.

The developers, anxious not to lose their permission, had meanwhile, prior to approval of the scheme, carried out mining operations (ie pre-approval operations) between 28 November and 8 December 1978. Although it could have done so, the authority served no enforcement notice in respect of those operations – understandable since there was an appeal pending in which the Secretary of State would decide whether or not the scheme was acceptable and since the mining operations had ceased after a few days simply to keep the old mining permission alive if possible.

After the Secretary of State had approved the scheme in 1982 the developers resumed mineral operations (ie post-approval operations) in accordance with the scheme. Then in December 1983, the planning authority served an enforcement notice in respect of the post-approval operations. The developers appealed to the Secretary of State who dismissed their appeal. There was then a further appeal to the High Court and a further appeal to the Court of Appeal. The Court of Appeal held that the developer’s appeal to the Secretary of State should have been allowed and that the enforcement notice should be quashed.

Woolf LJ said this at 80B-E:

“it is only necessary to ask the single question: are the operations (in other situations the question would refer to the development) permitted by the planning permission read together with its conditions. If the operations contravene the conditions they cannot be properly described as commencing the development authorised by the permission. If they do not comply with the permission they constitute a breach of planning control and for planning purposes will be unauthorised and thus unlawful. This is the principle which has now been clearly established by the authorities. It is a principle which I would have thought made good sense since I can not conceive that when section 41(1) of the 1971 Act made the planning permission subject to a condition requiring the development to be begun by a specified date, it could have been referring to development other than that which is authorised by the permission… The mining operations to which the planning permission relates are those authorised by the planning permission, not those which are unauthorised, because they contravene conditions contained in the planning permission.”

Applying that principle, the Court of Appeal held that “operations” were permitted by the planning permission read together with the conditions” even though the Secretary of State’s approval had come after the commencement of the development. This is why Whitley is in fact an exception to the principle to which it lends its name.

As discussed further below, there is an important difference between “conditions precedent” properly so-called and those which merely require something to be done, such as perhaps the submission of a landscaping scheme, before development commences.

The former are the strict Whitley form of condition such as: “no development shall take place before a scheme of working has been submitted to and approved by the local planning authority”. An example of the latter might be a condition in the form: “details for the boundary treatment of the site shall be submitted to and approved by the local planning authority before the development commences”. As we shall see, however, even conditions in the former, strict Whitley form may be construed as not rendering unlawful development commenced in breach of their requirements.

The notable, if not historic, decision heralding the adoption by the courts of a “broad approach” to the application of the Whitley principle is the decision of Sullivan J as he then was is R (Hart Aggregates Ltd) v. Hartlepool BC [2005] JPL 1602.

In Hart Aggregates, the condition in question (condition 10) was said by the planning authority to require that a scheme of restoration had to be agreed with the authority before minerals extraction permitted under the relevant permission commenced and that extraction undertaken without securing that advance approval was not effective to achieve lawful implementation of the permission.

Condition 10 stated: “the worked out areas shall be progressively backfilled and the areas restored to levels shown on the submitted plan or to a level to be agreed with the local planning authority… before extraction is commenced”. Extraction commenced in 1971 without the restoration scheme being agreed in advance, but a plan showing restoration levels had been submitted before extraction began.

A subsequent permission was granted in 1989 for an extension to the original extraction area, subject to a condition requiring progressive restoration of both the original and extended area of mineral working. A further subsequent permission was granted under section 73 of the 1990 Act in 1996 for a variation of one of the conditions to which the 1989 permission was subject, and again required progressive restoration of the whole mineral working. Extraction of minerals was carried on continuously form 1971 to the present day.

Also in 1996, the planning authority notified Harts that their quarry was included in the “first list” of mineral sites in the area, pursuant to paras. 3 and 8 of Schedule 13 to the Environment Act 1995. The company subsequently applied for a determination of new conditions under para. 9 of Schedule 13 to the 1995 Act in respect of the 1971 permission. But the authority declined to determine the application on the basis that the 1971 permission had lapsed and so they had no power to consider the application.

Sullivan J nevertheless upheld the company’s application for judicial review. He did so both on the narrow basis that condition 10 could properly be construed as not being breached if backfilled areas were restored to levels shown on the plan which had been submitted in 1971 (ie on its face it required that “the worked out areas shall be progressively backfilled and the areas restored to levels shown on the submitted plan or to a level to be agreed with the local planning authority… before extraction is commenced”) and on the basis (albeit obiter – ie not forming part of his decisive reasoning) that condition 10 could not properly be construed as a Whitley-form “condition precedent” such that non-compliance with its terms would render implementation of the 1971 permission unlawful.

The judge pointed out that the wording of the condition could…