Planning Circular 10/2009: Planning Enforcement

ANNEX F
CERTIFICATES OF LAWFUL USE OR DEVELOPMENT

Provisions

1. Sections 150-153 of the 1997 Act define the concept of 'lawfulness'. They also set out the provisions for certifying the lawfulness of proposed or existing operations, uses or activities in, on, over or under land, by applying to the planning authority for a Certificate of Lawful Use or Development ( CLUD).

Purpose of Certificates of Lawful Use or Development

2. The procedure provides a mechanism for establishing the planning status of land; i.e., whether an existing or proposed use or development is considered lawful for planning purposes.

3. In addition, the procedure provides a mechanism for obtaining from the planning authority (or the Scottish Ministers on appeal) a statutory document certifying the lawfulness , for planning purposes, of existing operational development or use as a single dwellinghouse.

What Is Lawfulness?

4. Section 150(2) provides that, for the purposes of the Act, uses of land and operations are lawful at any time:

• if no enforcement action may then be taken in respect of them, whether because they did not involve development or require planning permission, or because the time for enforcement action against them has expired, or for any other reason;
• and, furthermore, that they do not contravene any of the requirements of any enforcement notice then in force.

5. Section 150(3) makes similar provision in respect of any failure to comply with a condition or limitation subject to which planning permission was granted.

6. There is no compulsion to apply for a certificate, although a certificate or grant of planning permission may be a pre-requisite for an application for the following licences;

• A caravan site licence under section 3 of the Caravan Sites and Control of Development Act 1960;
• A waste disposal licence under section 5 of the Control of Pollution Act 1974; and,
• A waste management licence under section 36 of the Environmental Protection Act 1990.

Applications for Certificates

7. Section 150(1) of the 1997 Act enables anyone (not just the landowner or a person with an interest in the land) to apply to the planning authority for a decision on whether a specified existing use, operational development, or failure to comply with a planning condition or limitation, which has already taken place, is lawful for planning purposes. Section 151(1) makes similar provision for establishing whether a proposed use or operational development would be lawful for planning purposes.

8. The planning authority is not required to address general questions such as 'what is, or would be, the lawful use of, or operational development on, this parcel of land?' A reasonably precise description of the use, operation or other activity concerned has to be included in the application.

9. The information to be submitted in an application is set out in Part 9 of The Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2008. ( SSI 2008 No. 432)

Fees for Applications

10. Each application lodged with a planning authority must be accompanied by the appropriate fee as set out in the relevant Regulations currently in force.

Determination of Applications

11. Section 152(6) of the 1997 Act requires that applications and decisions are to be recorded in the planning register by the planning authority. Details of the information to be recorded are set out in Schedule 2 of the Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2008.

12. Planning authorities must acknowledge applications as soon as reasonably practicable after the application and appropriate fee have been received. If they later consider the application to be invalid, they must notify the applicant of that fact as soon as practicable.

13. When an application has been made under section 150, then under section 150(4), if the planning authority is provided with information satisfying them of the lawfulness, at the time of the application, of the use, operations or other matter described in the application, or that description as modified by the planning authority or a description substituted by them (see paragraph 31 below), they must issue a certificate to that effect; in any other case they must refuse the application.

14. Similarly, section 151(2) provides that, when an application has been made under section 151, if the planning authority is provided with information satisfying them that the proposed use or operations described in the application would be lawful, if instituted or begun at the time of the application, it must issue a certificate to that effect; in any other case they must refuse the application.

15. Planning authorities are required to give written notice of their decision to the applicant within 2 months of the date of receipt of the application and any fee required.

16. In determining an application under section 150 the planning authority will have to address the question whether, on the facts of the case and the planning law applicable to the site, the specified use, operational development or failure to comply with a condition is lawful.

17. Similarly, for an application under section 151, the planning authority needs to consider whether the proposed use or operations would be lawful if instituted or carried out in accordance with the terms of the detailed description of the proposal: in doing so, they will need to consider not only whether the proposal would involve development requiring planning permission, but also whether it would involve a breach of any existing condition or limitation imposed on a grant of planning permission which has been acted upon and which therefore affects what can be done on the land. Where a proposed change of use is involved, it will be necessary for the present, or last, use of the land to be described; and, where the lawfulness of that use is being relied upon to pave the way to implementing the proposed use, the planning authority will need to be satisfied as to the lawfulness of the existing use.

18. The planning authority may, by notice in writing, require an applicant to provide further relevant information in order to enable them to deal with the application. However, it should be borne in mind when requesting information, that information as to the origin or identity of applicants (except to the extent that they may or may not be able personally to confirm the accuracy of any claim being made about the history of a parcel of land), the planning merits of the use, operation or activity, is not necessarily relevant to the consideration of the purely legal issues which are involved in determining an application.

The Onus Of Proof In An Application

19. The onus of proof in an application rests on the applicant. Planning authorities should always co-operate with any reasonable request from an applicant who is seeking information they may hold on the planning status of land, by making records readily available.

20. As the matters to be determined are solely matters of evidential fact and law, with the onus of proof on the applicant, there is no requirement for an application under section 150 or 151 to be publicised under the provisions of sections 34 or 35 of the 1997 Act. It is however in the applicants interest to consider whether persons other than the applicant; for example, neighbours, or other persons with an interest in the land, may have evidence which is relevant to that application. If that evidence supports the application, it is up to the applicant to produce it, if they are able to do so. If it might tend to disprove the case, the applicant risks prosecution, and/or revocation of any certificate granted, if they withhold it. If the planning authority considers that a person with an interest in the land, or a neighbour, may have relevant information, it is open to them to canvass that information, if they wish, before determining the application.

21. In appeals to the Scottish Ministers which raise legal issues where the onus of proof is on the appellant, the Courts have held that the relevant test of the evidence on such matters is 'the balance of probability'. As this test will accordingly be applied by the Scottish Ministers in any appeal against their decisions, planning authorities should not refuse a certificate because the applicant has failed to discharge the stricter, criminal burden of proof 'beyond reasonable doubt'. Moreover, the applicant's own evidence does not need to be corroborated by independent evidence in order to be accepted. If the planning authority has no evidence to contradict or otherwise make the applicant's version of events less than probable, this is not in itself a valid reason to refuse the application.

22. The fact that a certificate may be refused because the onus of proof is not discharged by the applicant does not preclude the submission of a further application if other evidence subsequently comes to light. A refusal to issue a certificate is not necessarily proof that something is not lawful: it may merely mean that insufficient evidence has been presented to satisfy the planning authority that the use, operation or activity is lawful. For this reason, no useful purpose will be served by applying for a certificate where the applicant's interest is solely to disprove the lawfulness of an existing operation, use or activity, because the applicant objects to it. Unless the planning authority had sufficient evidence that the operation, use or activity was lawful, such an application would be refused as 'not proven on present evidence', and the planning authority would retain the application fee.

The Content Of Certificates Under Section 150

23. Section 150(5) provides for certain matters a certificate must contain. The certificate is particularly valuable because its effect is similar to a grant of planning permission. It is therefore vital that the certificate indicates precisely the area of land to which it relates (normally by means of an attached, scaled site plan); precise details of what use, operations or failure to comply with a condition are found to be lawful, why, and when. For example, if a certificate is for a use of land - unless the use falls within one of the 'use classes' specified in the Schedule to the Town and Country Planning (Use Classes) (Scotland) Order current at the time, or the certificate is granted on the basis that a specific grant of planning permission confers lawfulness on the use - it will be important for it to state the limits of the use at a particular date. These details will not be equivalent to a planning condition or limitation. They will be a yardstick, specifying what was lawful at a particular date, against which any subsequent change may be measured. If the use subsequently intensifies or changes in some way to the point where a "material" change of use takes place, the planning authority may then take enforcement action against that subsequent breach of planning control (which a less precise certificate might well preclude).

24. However, by virtue of section 26(2)(f) of the 1997 Act, it is not development to change from one use to another in a 'use class', or to intensify such a use provided it remains within the same class. It is therefore important to specify the 'use class' in any certificate granted in such a case, and to "describe" the operation, use or activity.

25. For example, a description might set out the number and type or size of caravans on a caravan site which are found to be lawful at the application date; the number and size of lorries based at a haulage yard; the range of activities carried on at a particular builder's yard (another 'sui generis' use); the number and category of vehicles displayed for sale on a site; and other details such as the hours of work, the seasonal nature of any use (specifying the months it operates), the machinery or equipment used, the height above ground-level to which goods or materials have been stored, or other method of operation of a use.

26. Where a certificate is granted for one use on a 'planning unit' which is in mixed or composite use, that situation may also need to be reflected in the certificate. Failure to do so may result in a loss of control over any subsequent intensification of the certificated use on to the whole of the land comprising the unit, to the exclusion of the other uses formerly taking place on some of the land.

The Effect Of Certificates Under Section 150

27. Section 150(6) provides that the lawfulness of any matter for which a certificate is in force shall be conclusively presumed. Once a certificate is issued it is important that nobody should be able to question whether what appears on its face is valid. The statement in a certificate of what is lawful relates only to the state of affairs at the date of the application. If, after a certificate has been issued, development is carried out on the land in breach of planning control, the planning authority may take whatever enforcement action they consider appropriate.

28. If a certificate is issued under section 150 in respect of any use for which a licence is also required, it follows that no planning enforcement action can be taken against the use. However, planning permission (or, in the case of a waste management licence, an Certificate of Lawful Use or Development) is necessary in each case before application can be made for the relevant licence. Section 150(7) accordingly provides that the grant of a certificate in these cases should be equivalent to a grant of planning permission. Although the practical consequence is that the planning merits of the matter may never have been considered, and there has been no opportunity to impose planning conditions on the development, it will still be open to the licensing authority to impose conditions on the licence which are relevant to the purpose for which the licensing control exists; and, except in the case of a caravan site, the licensing authority may still reject the licence application in certain circumstances.

The Content of Certificates under Section 151

29. Section 151(3) is the counterpart, for proposed uses or operations, of Section 150(5). It provides that a certificate granted under section 151 shall specify the land to which it relates; describe the use or operations in question (where appropriate, identifying a use by reference to the relevant 'use class'); give the reason why carrying out the proposal would be lawful; and specify the date of the application. Although this certificate would not be the equivalent, in law, of a grant of planning permission for proposed development, unless any relevant factor has changed since the application date specified in the certificate, it would be lawful to proceed with the proposal. It is therefore vital to ensure that the terms of the certificate are precise and there is no room for doubt about what is lawful at a particular date.

The Effect of Certificates Under Section 151

30. Section 151(4) provides that the lawfulness of any use or operations for which a certificate is in force under this section shall be conclusively presumed unless there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness. A certificate issued under section 151 is of use to a developer in establishing a legally binding consent (as opposed to relying on informal opinions from planning officers) that the proposed use is lawful.

The Content Of Certificates: General Supplementary Provisions

31. Section 152(4) provides for a Certificate of Lawful Use or Development to be issued in respect of all or part of the land specified in the application and, where the application specifies more than one matter, in respect of all of them or one or more of them; and to be in such form as may be prescribed by a development order. This is intended, along with the planning authority's power under section 150(4) to issue a certificate of a different description from that applied for, to give planning authorities a reasonable degree of flexibility in cases where it would be helpful to the applicants to receive a certificate in terms which may differ slightly from the terms of their application, as an alternative to refusing a certificate altogether. For example, a lesser area of land may be included.

32. Section 152(5) provides that a certificate granted under Sections 150 or 151 shall not affect any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted, unless that matter is described in the certificate. This means that, in any case where a certificate is granted on the basis that there is existing planning permission for the development, the fact that the certificate certifies that development to be lawful, does not mean that it can lawfully take place without complying with any conditions or limitations imposed on that grant of permission, unless specifically described in the certificate. Unspecified existing or future breaches will not be covered by the certificate. For example, if the planning permission was subject to a number of conditions, a certificate granted in respect of a breach of one of them could not be regarded as legitimising breaches of any of the others. Moreover, it is possible to breach some individual conditions in different ways; it is the matter constituting the failure to comply with the condition, rather than the condition itself, which the certificate should, where appropriate, describe. If a condition prohibiting open storage on a site has been breached for more than 10 years by storing materials in the open on a particular part of the site, the certificate should describe the extent of the breach which has become lawful. Such a certificate would not then cover a future breach of the condition involving open storage on a different part of the site from that described in the certificate.

Revocation of Certificates

33. Sections 152(7) and (8) provide that a planning authority may revoke a certificate granted under sections 150 or 151 if, on the application, a statement was made, or document used, which was false in a material particular; or any material information was withheld.

34. These powers may be used where it becomes clear that a certificate has been erroneously based on a false statement, or that relevant information was withheld from the planning authority when they considered the application. As it will clearly be a serious matter for the applicant to have a certificate revoked, The Town and Country Planning (Development & Management Procedure) (Scotland) Regulations 2008 (Part 9) provides a statutory procedure which planning authorities should follow in giving notice of revocation and carrying out the revocation. No compensation is payable in the event of revocation. The decision whether to revoke a certificate is entirely for the planning authority, even when the certificate has been granted by the Scottish Ministers. If it proposes to revoke a certificate, it must give notice of its proposal, thus providing an opportunity for the recipients of advance notice to make representations before the planning authority make its decision.

35. Although there is no right of appeal to the Scottish Ministers against the planning authority's decision to revoke a certificate the validity of the decision may be challenged by application to the Court of Session for judicial review. Moreover, there is nothing to prevent a further certificate application being made, following revocation of an earlier certificate. If a planning authority behave 'unreasonably' in revoking a certificate and refusing to grant a fresh certificate upon re-application, they may well be at risk of a successful application for expenses against them in the event of a subsequent certificate appeal to the Scottish Ministers, under section 154 (see paragraph 41 below).

Offences

36. Section 153 creates an offence, which can be prosecuted summarily or on indictment, if any person, for the purpose of procuring a particular decision on an application (whether by himself or another) for a certificate under sections 150 or 151, 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. On summary conviction in the Sheriff Court, the penalty is a fine not exceeding the current statutory maximum. On conviction on indictment, the convicted person is liable to imprisonment for a term not exceeding 2 years, or to a fine, or both.

37. In terms of section 136 of the Criminal Procedure (Scotland) Act 1995, the prosecution of such an offence by summary procedure must be brought within 6 months of the commission of the offence.

Right Of Appeal To Scottish Ministers

38. Section 154 makes provision for the right to appeal to the Scottish Ministers, following an unsuccessful application under section 150 or 151. Only the applicant may appeal.

39. An appeal may be made against the planning authority's refusal or partial refusal to issue a certificate or where a planning authority has failed to determine an application within the statutory period. Planning authorities should therefore endeavour to determine applications timeously.

40. Information on submitting an appeal is available from Directorate for Planning and Environmental Appeals.

The Expenses Involved In Making An Appeal

41. The parties to a certificate appeal are normally expected to meet their own expenses. Expenses do not automatically 'follow the event' of the appeal and are only awarded, on an application, against a party who has behaved 'unreasonably' in the appeal process. SODD Circular 6/1990 gives guidance on the policy and procedures for awarding expenses to parties in an appeal. As with enforcement notice appeals, an award of expenses may be made in a certificate appeal whether the appeal has proceeded by written representations or by public local inquiry.

Appeal To The Court of Session

42. The Scottish Ministers' decision on a certificate appeal may be challenged under section 239 of the 1997 Act.

Scottish Ministers' Power Under Section 133(1)(d) To Issue A Certificate Under Section 150

43. Section 133 of the 1997 Act gives the Scottish Ministers certain discretionary powers on the determination of an enforcement notice appeal. Section 133(1)(d), enables them to determine whether, on the date the appeal was made, any existing use of the land was lawful, any operations which had been carried out were lawful, or any matter constituting a failure to comply with a condition or limitation subject to which planning permission was granted was lawful; and, if so, to issue a certificate under section 150.