Prior developments

Lawful development certificates (LDC) provide a useful tool for establishing whether a particular development (either existing or proposed) is lawful. However, an LDC should only be applied for if it’s considered necessary and this is particularly so in respect of existing developments. If a Local Planning Authority (LPA) is not aware of an “unauthorised development” having taken place, then bringing its existence to the LPA’s attention by making an application for a LDC would be unwise unless there is good reason to pursue this course of action.

It might be that a prospective purchaser is concerned about certain works being carried out at a property because it is unclear whether those works were ‘substantially completed’ more than four years previously for the purposes of Section 171 B of the Town and Country Planning Act 1990.  In such a case, if the purchaser is not prepared to take a view, then it could make the purchase conditional upon the LPA granting a LDC to certify that that particular development is lawful for the purposes of planning.  Of course, it could settle for a confirmatory letter to that effect from the planning officer but that would not bind the LPA if it subsequently decided that the development was not immune from planning enforcement action.

Alternatively, if an owner is intending to sell their property and is confident that any development on it would now be lawful for planning purposes; they may decide to obtain an LDC to make the property “more attractive” to a prospective purchaser. However, before making such an application they would need to be absolutely certain that the development is immune from planning enforcement action, which inter-alia, would include checking that there are no planning conditions or obligations which might prevent such a development.

In the case of operational development, such as an extension to a property, if there is a certificate of lawfulness in place certifying that those works are lawful for planning purposes, should a buyer ever look beyond this? What if an LDC was granted on the basis that the LPA considered the work immune from planning enforcement action, only later for the LPA to find that it overlooked an historic planning condition or obligation preventing such work?

One should not forget that LDCs are not planning permissions and only certify what is considered to be lawful at the time at which they are issued.  In certain circumstances, LDCs will be of limited value.  Take for example a planning condition in respect of a nightclub, which requires it to close at 2am. Let’s assume that nightclub has in fact been operating until 4am every night of the week for the last 10 years. On this basis, the breach of the hours of operation condition would be immune from planning enforcement action and the owner could apply for an LDC to certify that operating until 4am in breach of that particular condition is lawful for planning purposes. Obviously, being able to operate for an additional two hours every night of the week could increase the value of the property. However, the issue of an LDC would not remove the condition but merely certifiy that that particular breach of that condition was lawful at the point at which the LDC was issued.

If following the issue of the LDC, there was a period of time when the nightclub was in fact closed at 3am, it would then only be possible to show a continuing breach of the original condition over the preceding 10-year period based on the earlier closing time of 3am.  This would mean that any subsequent recommencement of operations beyond 3am in breach of the condition would, subject to expediency and be at risk of enforcement action. A safer way for a buyer to proceed in such a scenario would be to make the purchase conditional upon the relevant condition being varied to permit opening until 4am, particularly if this has been factored into the purchase price.

Agricultural occupancy conditions often cause headaches. If a LDC has been granted because a property has been occupied by non-agricultural workers in breach of an agricultural occupancy condition, what happens if there are then periods where that property is unoccupied? Does this mean that the breach is no longer continuing and any subsequent occupation by non agricultural workers would be a ‘fresh’ breach of that condition capable of being enforced against in the usual way?

Justice Collins in Basingstoke & Deane Borough Council v Secretary of State of Communities and Local Government (2009) decided that the Planning Inspector was wrong in deciding whether the breach was continuing to look at whether the period of non occupation was de minimis. Instead it was necessary to look at the period as a whole in relation to the building and decide whether there has been what could be regarded as a breach of the condition over the whole of that period and whether there was anyone in physical occupation during any parts of that period.

In this case the Judge decided that the gap in occupation during which refurbishment took place in order to make the dwelling more attractive for continuing the breach was a period during which the breach continued on the basis that the actions being carried out, i.e. marketing the property and works to make the property more attractive, were all in furtherance of the breach of condition. Justice Collins considered that if work was carried out after there had been a breach by occupation by non agricultural workers and it was apparently clear on the facts that the activities thereafter, were being carried out in order to further that breach, then the breach would properly be regarded as continuing.

What about LDCs issued in respect of an “unauthorised use” on the basis that the use has been continuing for in excess of 10 years at the date of the LDC?  If there was a material break in the continuation of this use after the LDC had been issued; then any resumption of the use to which the LDC related would be at risk of planning enforcement action.

While being a flexible tool and serving a potentially useful purpose in appropriate circumstances; it is important to understand how LDCs work, when they should be sought and how their existence should be applied in practice. Specific specialist advice should always be sought to consider the relative strength and protection afforded by such an LDC in any particular case.