A LEADING LAW FIRM WITH A APPROACH

Transcription

1 A LEADING LAW FIRM WITH A APPROACH Certificates of Lawfulness Frank Orr Head of Planning (Newcastle) Certificates of Lawfulness - Introduction Certificates of lawfulness replaced established use certificates Certificates of lawfulness are statutory documents certifying: The lawfulness, for planning purposes, of existing operations on, or use of, land, or some activity being carried out in breach of planning control (CLEUD s. 191 TCPA 1990) The lawfulness of proposed operations on, or use of, land (CLOPUD s. 192 TCPA 1990) Lawfulness for planning purposes Lawfulness for planning purposes If no enforcement action may be taken and they are not in contravention of any enforcement notice which is in force (s. 191(2)) If time for taking enforcement action has expired in respect of non-compliance with any condition or limitation subject to which planning permission has been granted (s. 191(3)) R v Epping Forest District Council ex p Philcox (2000) 1

2 Categories of Lawful Development Development or other activity is lawful if it falls within the following categories: Not development (s. 55(1) and (1A)) Excluded from definition of development (e.g. agriculture) Benefits from express or general or deemed planning permission It took place before 1 July 1948 The time for taking enforcement action has expired Applications under s191 and 192 Applications may therefore be submitted to determine: Whether a specified existing use, operation or failure to comply with a planning condition or limitation, which has already been carried out on land, is lawful for planning purposes (s. 191) Whether any proposed use or operations would be lawful for planning purposes (s. 192) Applications - specific uses/operations etc Applications to determine whether uses / operations etc specified in the application are lawful Not to determine broader question as to totality of what may be lawful per se Questions of fact and law, not planning merits 2

3 Circulars 10/97 and 02/08 Circular 10/97: Enforcing planning control: legislative provisions and procedural requirements Burden of proof firmly on applicant Relevant test is balance of probability If LPA has no evidence of its own and the applicant s evidence is precise and unambiguous should not refuse certificate Circular 02/08: Standard application form and validation CLEUD s. 191(1) May apply to ascertain lawfulness of: a) Any existing use of buildings or other land; a) Any operations which have been carried out in, on, over or under land; or a) Any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted Must specify the land and describe the use, operations or other matter CLEUD s. 191(2) and (3) Lawfulness of any use/operations or other breach of planning permission if: no enforcement action may be taken (whether because they did not involve development or require planning permission, or because the time for enforcement action has expired, or for any other reason); and there is no contravention of any of the requirements of any enforcement notice or breach of condition notice in force Immunity 4 years (from the date of substantial completion) for operational development, or unauthorised change of use to dwelling house 10 years (from the date of breach) for any other breach of condition/change of use 3

4 CLEUD s. 191(4) Evidence-based determination; if the LPA is provided with information satisfying it of the lawfulness at the time of the application of the use, operations or other matter in question, then a CLEUD must be issued to that effect. In any other case, the application must be refused onus of proof on the applicant Gabbitas v Sec of State for the Environment [1985] JPL 630 & para 8.12 of Circular 10/97 balance of probabilities evidence submitted to the LPA must be precise and unambiguous (though not necessarily expert) CLEUD s. 191(5) and (6) Certificate must specify the land, use/operations/other matter (and use class if relevant), reasons for the determination of lawfulness, and date of the application Once issued = conclusive presumption of the lawfulness of the use/operations/other matter specified (but see further below) But does not create or remove any rights; merely a declaration of existing rights CLOPUD s. 192(1) and (2) May apply to ascertain lawfulness of: a) Any proposed use of buildings or other land; or b) Any operations proposed to be carried out in, on, over or under land Lawfulness = if the use or operations described in the application would be lawful if instituted or begun at that time Evidence-based if LPA satisfied of the lawfulness of the proposed use/operations, it must issue a certificate; if not, the application must be refused 4

5 CLOPUD s. 192(3) Certificate must specify the land use/operations (and use class if relevant) reasons for the determination of lawfulness and date of the application (s192(3)) CLOPUD s. 192(4) Lawfulness of the proposed use/operations is conclusively presumed where certificate is in place unless there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to the determination of lawfulness (s192(4)) Wording of certificate Wording should be precise and accurate Main v SSE (1988) dealing, storage and processing of scrap metal Degree of precision depends on circumstances Hillingdon LBC v SSCLG (2008) General aviation purposes adequate description R (N Wiltshire DC) v Cotswold DC (2009) 5

6 Abandonment of certified use M & M (Land) Ltd v SS Communities and Local Govt (2007) CLEUD for scrap yard use Following fire scrap yard use abandoned Therefore on considering planning application for scrap yard, Inspector entitled to conclude fallback position did not include scrap yard use Process and Procedure Article 35 TCP (Development Management Procedure) Order 2010 Form Plan Evidence Statement re ownership Application fee LPA may request further information (Art 35 (9)) Publicity No publicity requirements Sumption v Greenwich LBC (2007) Absence of notification or publicity for grant of LDC Judicial Review of decision of LPA promptly in all the circumstances and in any event within 3 months But first time the neighbour knew about it was when works commenced (6 months after certificate issued) Challenge made as promptly as possible in circumstances 6

7 Appeal Right of appeal presently no time limit If refused, on appeal, test is whether refusal was well-founded Offences Offence to knowingly or recklessly make a false or misleading statement Liability not restricted to applicant Member of public Council officer Revocation Power to revoke if statement made or document used which is false in material particular or material information withheld Must give notice if intend to revoke (Art 35 (15)) R v Surrey County Council ex p Bridge Court Holdings Ltd (2000) 7

8 Recent cases - Stevenage Stevenage BC v SSCLG & Aberdeen Property Investors (UK) Ltd [2010] EWHC 1289 (Admin) Restrictions on retail units at retail park Planning permission granted for external works to retail unit on retail park Plans accompanying application also showed internal subdivision Following Barnett plans formed part of approved development Therefore internal sub-division included within permission for proposed retail development Question of fact and law not planning merits re retail policy Recent cases Prudential Insurance R (on the app. Of The Prudential Assurance Co Ltd) v Sunderland City Council & Peel Investments (UK) Ltd [2010] EWHC 1771 (Admin) Existing retail park use restricted by s52 agreement to non-food retail But s52 agreement did not bind subsequent permissions Council granted permission for conversion of a retail unit into two units By granting permission for sub-division released the two subdivided units from the restriction in the s52 agreement Similar reasoning as in Stevenage, although decided independently of it. Recent cases - Ellis Ellis v SSCLG & Another [2009] EWHC 634 (Admin) Breach of an agricultural occupancy condition over 39 year period, From periods of vacancy Application in 2007 for a CLEUD refused Upheld by High Court following Nicholson as there was no continuous 10 year period as at the date of the application Lawfulness of a breach of condition does not crystallise after the 10 year period has passed, it must be : Continuous Subsisting as the date of the CLEUD application 8

9 Recent cases - Basingstoke Basingstoke & Deane BC v SSCLG [2009] EWHC 1012 (Admin) Agricultural occupancy condition imposed improperly to avoid development charge on construction Question not whether there had been continuous occupation contrary to the condition But whether continuous breach of the condition could enforcement action have been taken at all material times In any event Inspector s reasoning that during refurbishment had to be occupation by builders was incorrect breach continued during gap for refurbishment Every case fact-sensitive Recent Cases - Flattery Flattery v SSCLG [2010] EWHC 2868 (Admin) Legitimate expectation cannot assist in obtaining a CLEUD Alleged that LPA informally acknowledged that use of land as scrap yard could be lawful Such informal acknowledgment did not prevent refusal of CLEUD Only formal decision by LPA would be determinative per Reprotech There was no interference with the applicant s human rights; the Inspector had fairly balanced conflicting private and public interests Conclusions CLEUD and CLOPUD Formalities of process important Careful thought required when Drafting terms of application Wording certificate Absence of publicity requirements double-edged sword Stevenage etc questions of legal interpretation Ellis continuous breach subsisting as at date of application 9