Information Guide

This is a certificate that is required when there is a need to demonstrate that an existing use or activity, that was deemed in breach of a planning condition, is now no longer unlawful.

It can also be applied for to illustrate that a use or activity you are proposing will be lawful for the purposes of planning control.

There are two types of certificate that you can apply for to be granted immunity from planning enforcement:

1. Certificate of Lawfulness - Existing Use or Development (CLEUD)
   This is issued by the LPA to retrospectively legalise a previously unauthorised building or use of land or to confirm that the development was carried out in line with an approved permission.
2. Certificate of Lawfulness of Proposed Use or Development (CLOPUD)
   This is issued by LPA which confirms 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.

Other examples of why applying for a CLOPUD might be the right approach for your requirements are:

To find out whether any proposed development which would otherwise be ‘permitted development’ (by virtue of provisions in the General Permitted Development Order 1995) requires the submission of a planning application and what is called an ‘environmental assessment’.

To find out if there are any special restrictions on proposed development because the land is, or is near to, a Site of Special Scientific Interest, a Special Protection Area (under the European Community’s Birds Directive), and a Special Area of Conservation (under the European Community’s Habitats Directive), and your proposal may have a significant effect on the site.

What time-scales apply for a CLUED?

Under the General Development Procedure Order 1995 (As Amended) the LPA is required to issue enforcement proceedings against breaches of planning control within certain timescales depending on the nature of the breach. Breaches must be continuous and current in order to qualify for a CLEUD.

The following timescales apply:

• Four years for the erection of buildings or structures
• Four years for the change of use of a building to a single dwelling
• Ten years for the change of use (building or land) to any use other than a single dwelling

Provided the above timescales have passed you are entitled to legitimise the development with respect to planning by seeking a CLEUD from the LPA.

Examples of where the 10 year rule applies include:

• Occupying an agricultural dwelling for non-agricultural purposes where the property has an agricultural occupancy condition attached to the original planning permission; and
• Occupying a caravan or mobile home

The 10 year period runs from the date the breach of planning control was committed.

When making a CLEUD it is important to make sure that the above timescales have been passed to ensure a successful application. It also avoids the potential for enforcement action by the LPA.

What factors are considered by the LPA when making an application for a CLUED?

Your LPA will determine the application based on the factual evidence you provide. The onus is on the applicant to demonstrate the breach has been in existence for the required time-scales.

Unlike planning applications LPAs are required to determine if, on the balance of probability, your application complies with the relevant time periods.

Evidence can include the following:

• Statutory Declarations (to be signed in the presence of a solicitor)
• Photographs (dated or date referenced)
• Utility bills
• Accounts
• Receipts for materials or services
• Leases and tenancy agreements
• Council tax records
• Electoral Roll records

What time-scales apply for a CLOPUD?

The LPA will typically determine your application with 8 weeks of validation.

The right to Appeal

If your CLUED or CLOPUD has been refused you have the right to appeal to the Planning Inspectorate. There is no time limit for making such an appeal although appealing against non-determination can only be done after 8 weeks from the date the application was registered by the LPA.

Before making an appeal you could consider re-engaging with the LPA to discuss whether any changes to your application would make it more acceptable and likely to gain permission. It is possible that a further planning application may be submitted without charge.

However, if this route is not available to you and you wish to lodge an appeal, this will be handled via one the following four routes:

1. Householder Appeals Service (HAS)
   This is suitable for appeals against refusals on householder applications which seek permission for works to alter or enlarge a single house, including works within the garden. The appeal takes place in the form of a written representation and you must appeal within 12 weeks.
   
2. Written Representation Appeal
   This is often the quickest and most popular method of appealing. The Inspector considers the written evidence from you (the ‘appellant’), the LPA and anyone else who has an interest.
   
3. Informal Hearings
   This type of hearing involves the submission of written evidence by the main parties with a similar timeframe to that used for written representation appeals. However, this process also includes an informal hearing where the parties involved get the opportunity to address the Planning Inspector.
   
4. Public Enquiry
   This is the most formal of the appeal procedures which is usually reserved for larger, more complex cases. It can differ in length from a single day to several weeks depending on the development and appeal. The involved parties are given the opportunity to cross-examine each other. The procedures are quite similar to a court of law usually with legal representatives presenting cases and calling and questioning expert witnesses.
   
5. How long does it take?
   All appeals must be made within six months of the LPA’s decision, or at the end of the decision period. Where there is an enforcement notice on the site for the same or a similar development, the appeal period may be reduced to 28 days.

There is no statutory timeframe for determining planning appeals, and the time it takes can vary widely depending on the type of appeal and the complexity of the proposal. Typically, 80% of householder appeals are decided within eight weeks. Written representations are the next quickest, and informal hearings and public inquiries tend to take the longest.

Where it concerns an Enforcement Appeal the Planning Inspectorate (PI) will check your appeal to make sure it is valid. They will confirm the start date, what happens next and how long your appeal may take. They will then consider your appeal. Once your appeal has been accepted the timescale can vary from three months to over a year, depending on the complexity of the case and the type of the appeal.

However, there are some important milestones along the way:

• Within two weeks of the start date, the LPA will send the appellant and the PI a completed questionnaire and inform interested people (i.e. third party objectors) about the appeal.
• Within six weeks of the start date, the appellant and the LPA must each send their statements to the PI. In turn, the PI will forward copies of what the other party has sent, along with any comments from interested people (if these have been received in time).
• Within nine weeks of the start date, the appellant and the LPA must send the PI any comments they have on each other's statements and the comments from interested people.

These stages may differ if your appeal is being dealt with at an Informal Hearing or Public Inquiry.

You are able to withdraw your appeal at any point where you have reached an agreement with the LPA.

Award of costs

Usually, everyone involved in an appeal meets their own expenses. However, one party or side can claim for unnecessary costs caused by the other side’s unreasonable behaviour.

If it concerns an Enforcement Appeal then the appeal itself does not cost anything unless you also apply for planning permission. This typically costs twice the usual amount for planning application, split between the LPA and the DCLG (Department for Community and Local Governments).

Designated and non-designated heritage assets

Designated heritage assets include scheduled monuments, listed buildings, world heritage sites, shipwrecks, historic parks and gardens, national parks and conservation areas.

Non-designated heritage assets are other buildings and sites that also have some archaeological, architectural, artistic or historic interest, either locally or nationally.

SHELAA

The Strategic Housing and Economic Land Availability Assessment is an essential piece of evidence required to support the Local Plan process. It is a technical document which confirms the availability of land and assesses the potential suitability of development sites for allocation in the local plan. The inclusion of the site in the SHELAA does not imply that planning permission would automatically be granted.

Find out more about our Heritage Planning here.

DAS Statements should include the following headings:

Use

What buildings and spaces will be used for.

Size

The number of proposed units for residential use and the amount of floorspace and distribution of other uses. Where the development involves an extension to an existing building, the additional floorspace, volume and overall dimensions should be set out.

Layout

The way in which the buildings, routes and open spaces are provided, placed and orientated to each other. The statement should demonstrate that safety and security issues have been fully taken into account. The relationship of the buildings to adjacent streets and open spaces is of particular importance.

Scale

The height, width and length of a building in relation to its surroundings. This needs to be justified in terms of local character, council policy and guidance as well as urban design principles.

Landscaping

How open spaces will be treated to enhance and protect the local character. The statement should consider how the landscaping can enhance the buildings and surrounding area, while also remaining sustainable and improving biodiversity.

Appearance

How the building and spaces will look – for example, building materials and architectural details.

Access

The statement needs to cover two potential aspects of access, which should be considered together rather than in isolation.

• Vehicular and transport links - why the access points and routes have been chosen, and how the site responds to road layout and public transport provision.
• Inclusive access - how everyone can get to and move through the location on equal terms regardless of age, disability, ethnicity or social grouping.