- CLUED applications: what they are and why they may be useful to property owners
CLUED applications: what they are and why they may be useful to property owners
CLUED applications: what they are and why they may be useful to property owners16th July 2021 - Published by Kuits Planning team
A recent High Court decision relating to a certificate of lawful development is of great importance to those seeking to establish lawful use by the ‘effluxion of time’ – ie expiration of a lease term due to the passage of time. It interprets section 171B of the Town and Country Planning Act 1990 (the 1990 Act) in what appears to be a much more pragmatic manner.
The case of R (Ocado Retail Ltd) v London Borough of Islington (2021), concerned two important issues Certificate of Lawfulness for Existing Use or Development (CLUED):
- the importance of the accuracy of the information submitted as part of the application for a CLUED due to the need for public confidence in the information the planning authority relies upon to grant a certificate; and
- whether or not the ten years continuous use must be existing at the time the application is submitted.
The second of those issues represents a significant move away from previous case law and may be of interest to property owners looking to regularise the planning position of their property when previously they could not.
What is a CLUED?
A CLUED is a legal statement that states a development that was previously unlawful, due to being in breach of a condition or without planning permission, is now lawful. If granted by the Local Planning Authority (the LPA), the certificate prevents the LPA from taking enforcement action in respect of the development referred to in the certificate. If that development referred to in the certificate changes, the protection is lost.
A CLUED is different to planning permission as the LPA cannot consider the planning merits of the application, only the factual evidence submitted by the applicant in respect of the history and planning status of the land or property. The obligation is on the applicant to provide the LPA with sufficient and robust evidence to support the grant of the certificate in order to prove that the time for taking enforcement action has expired. In respect of a breach of condition, evidence must be provided to show a breach over a period of ten years, with other time periods for other types of unlawful development. The breach must be continuous and uninterrupted use. If, during the relevant period of time, the unlawful use ceases and the LPA cannot take enforcement action, the clock stops and resets to zero if that unlawful use recommences.
Ocado Delivers Change
Up until the Ocado case, in addition to the unlawful use existing for a continuous period of ten years, the breach of planning had to subsist at the time the application was submitted to the LPA, so in effect there were two hurdles to clear. In Ocado, the judge considered the terminology of the 1990 Act to decide the importance of any deviation from or cessation of the unlawful use after the ten years has run.
The judge held that the use does not have to continue after immunity is gained, nor be subsisting at the time of the application to the LPA. It was decided that once protection is gained by the effluxion of time, the test to be applied is not whether the use has simply ceased, as previously required, but whether the use has been abandoned, subsequently materially changed use, or a new planning unit has been created.
The result of the Ocado decision is that when an application is made pursuant to section 191 of the 1990 Act for a CLUED, the ten-year period relied upon can be sometime in the past. That approach aligns with the language in section 171B of the 1990 Act in that ‘no enforcement action may be taken after the end of’ the relevant time limit.
Practically speaking, this means:
- a breach of condition, or material change of use must be continuous for relevant period for immunity from enforcement to be gained;
- once lawful use right accrues its continued existence does not depend upon that right continuing to be exercised;
- once immunity is gained, the right can only be lost through abandonment or a supervening event.
Get in touch with a Planning Law specialist today
This case may open up the possibility of an application for a CLUED being successful to more property owners looking to regularise the planning position of their property who have accrued a ten year period of use, but that use has ‘paused’ at the point of the application to the LPA.
If you would like more advice on how a Planning Law Specialist can assist you, please contact Associate Victoria Leam on 0161 503 2998 or email firstname.lastname@example.org