Meeting documents

WDC Info Sheets - Planning Committee
Thursday, 8th October, 2009

Info Sheets - Planning Committee 2009, 02-2009 (08 Oct 2009) Lawful Development Certificates

 

 

 

     INFORMATION SHEET

Planning Committee

Issue No: 02/2009

Date Issued: 8th October 2009

Lawful Development Certificates

Officer contact:  

Alastair Nicholson (Development Control Manager)

Tel: 01494 421510 (ext; 3510).

 

Ifath Nawaz (Principal Solicitor)

Tel: 01494 421270 (ext; 3270).

Introduction

In its capacity as the Local Planning Authority the Council deals with not only different types of planning applications, but many other types of formal consultation, notification and consent.  This includes Lawful Development Certificates and Members have requested an information sheet to clarify the nature and extent of such applications.

A person who wishes to establish whether a use, operation or activity is lawful in planning terms may apply to the Council for a Lawful Development Certificate (LDC). There are two types of LDC:

1. For an existing use or operation, or an activity in breach of a planning condition, or,

2. For a proposed use or development.

Distinction between the two types of Certificate is sometimes made by using the ugly acronyms CLEUD (Certificate of Lawfulness of Existing Use or Development) and CLOPUD (Certificate of Lawfulness of Proposed Use or Development).

At Wycombe a planning reference ending in the suffix CLE (e.g. 09/05000/CLE) is an application for a Certificate of Lawfulness of Existing Use or Development.  A planning reference ending in the suffix CLP (e.g. 09/05000/CLP) is an application for a Certificate of Lawfulness of Proposed Use.

An application for a lawful development certificate (LDC) is not like an application for planning permission, where the decision will be made on the merits of a proposal, having regard to Council and national planning policies and any comments made about it by the public.

An LDC application is assessed purely on the basis of the evidence submitted in support of it, and on any other evidence that the Council may have (such as its own records), or may obtain during processing of the application.  If, on the balance of probabilities, the Council is satisfied that the activity or the development is lawful, the LDC application must be granted.  However if the applicant submits insufficient  evidence or the Council has contrary evidence, which the applicant fails to clarify or comment on then the Council will issue Notice of Refusal; on the basis that it is not satisfied on the evidence submitted that the activity or operation is lawful.

The decision is therefore a “legal” one rather than based on its planning merits.  At Wycombe this distinction is reflected in the fact that the power to determine such applications is delegated to the Head of Legal Services, and not the Head of Planning & Sustainability as is the case with other “planning” decisions.

There is a right of appeal to the Planning Inspectorate against the refusal of an LDC application. It is also possible to submit a second application, with more (or different) evidence. In every case the decision will rest on the quality of the evidence available to the Council.

Once an LDC has been granted it has much the same effect as a planning permission in that it provides an official record that the activity or development is legitimate in planning terms.

 

What "Lawful" Means

In planning law, uses or operations are lawful if no enforcement action may be taken against them and they are not in contravention of any enforcement notice which is in force on the property.

Also, a failure to comply with any condition on a planning permission is lawful if the time for taking action about the failure has expired and it is not in contravention of any enforcement notice or breach of condition notice which is in force on the property.

 

Applying for an LDC for an Existing Use or development (or an activity in breach of a planning condition)

The onus is on the applicant to provide evidence that:

·

the use of a property as a single dwellinghouse began at least four years before the date of the LDC application, or

·

any other change of use began at least ten years before the date of the LDC application, or

·

the development has been substantially completed for at least four years before the date of the LDC application, or

·

the condition has been breached for at least ten years before the date of the LDC application.

When the Council grants an LDC it will define as precisely as possible the limits of the development that it is declaring to be lawful. These limits will reflect the evidence that was available to the Council when the decision was made.

For example, if it has been established that part of a property has been used for more than ten years for repairing cars, the LDC will define which part of the property it covers. It may also state that it relates to cars only (not commercial vehicles), and may specify a maximum number of cars to be at the property for repair at any one time.

The evidence submitted can be in the form of bills and receipts for work and services, accounts, and most commonly a sworn statement from a witness.  Such applications commonly result from an enforcement investigation.  Where an appeal is lodged it will almost always result in a Public Inquiry as the evidence will be taken under oath.  There are often several witnesses and as a result these appeals can last many days.

 

 

Applying for an LDC for a Proposed Use or development

In this case the onus is on the applicant to show that planning permission is not required because of relevant issues such as existing planning permissions, enforcement notices or certificates that cover the proposed use or development.

Such applications are generally received from householders wishing to check that their proposed extension is “permitted development”.  Basically regulations set out pre-defined rules regarding the size and location of extensions which can be constructed without having to apply to the Council for formal planning permission.

In October 2008 the government introduced more extensive permitted development rights for householders.  The intention being to reduce the number of householder applications submitted to Councils to allow them to focus resources on more complex applications.

The new regulations have proved rather ambiguous and difficult to interpret and so as a result this has led to an increase in LDC applications.  Previously Councils were able to provide sufficient reassurance by means of a letter giving an informal opinion.  Now however due to the ambiguity of the regulations those embarking on a construction project are seeking the reassurance of a Certificate (often required by financial institutions before they will lend, and by solicitors when a property is being sold).

 

Fees

The fee for an application to establish the lawfulness of an existing use, etc, is the same as would be charged for an application for planning permission for the same use, operation or activity.

The fee for an application to establish the lawfulness of a proposed use or development is 50% of what would be charged for an application for planning permission for the same use or development.

How many are being received?

The number of Lawful Development Certificate applications received is relatively low, at less than 100 a year.   A breakdown of the numbers of these applications received by ward and parish is attached as Appendix A.  This table shows that these applications are geographically spread across the District:  Flackwell Heath and Little Marlow receiving slightly more than most, although these were all for proposed development.

Number of Lawful Development Applications received

 

1999

2000

2001

 

2006

2007

2008

Proposed Use

0

6

7

 

29

27

47

Existing Use

22

21

16

 

18

29

37

Total:

22

27

23

 

47

56

84

The table above indicates that although still relatively low the number of such applications is rapidly increasing.  In 1999-2001 the figures were relatively static at between 20 and 30 per year.  From 2006 however they have been increasing and are set to reach an all time peak during this financial year.

Key Issues for Members:

·

Lawful Development Certificates are not like an application for planning permission, where the decision will be made on the merits of a proposal, having regard to Council and national planning policies and any comments made about it by the public.

·

When an application is made for an existing development or use the case officer may write to neighbours asking if they have any information which agrees or disagrees with what is being claimed (rather than asking their opinion of the development or use).

·

If Members have any queries about an LDC they should contact the case officer who can explain the circumstances of the application.

Appendix A

 

LAWFUL DEVELOPMENT CERTIFICATES RECEIVED BY WARD

 

WARDS

 

2006

 

2007

 

2008

 

2009

(Jan-Aug)

 

 

CLP

CLE

 

CLP

CLE

 

CLP

CLE

 

CLP

CLE

Abbey

 

3

0

 

4

0

 

5

2

 

3

1

Bledlow & Bradenham

 

0

2

 

0

3

 

0

1

 

1

0

Booker & Cressex

 

0

0

 

1

0

 

0

0

 

2

0

Bourne End cum Hedsor

 

1

0

 

1

0

 

4

0

 

3

0

Bowerdean

 

2

0

 

1

0

 

0

1

 

1

1

Chiltern Rise

 

0

0

 

1

0

 

1

1

 

1

1

Disraeli

 

0

0

 

0

0

 

0

0

 

1

0

Downley & Plomer Hill

 

1

1

 

1

0

 

2

1

 

2

0

Flackwell Heath and Little Marlow

 

0

0

 

0

3

 

3

1

 

8

0

Greater Hughenden

 

0

2

 

2

2

 

1

5

 

4

0

Greater Marlow

 

1

2

 

1

2

 

2

4

 

2

1

Hambleden Valley

 

0

0

 

1

4

 

1

1

 

1

3

Hazlemere North

 

1

0

 

1

1

 

2

0

 

2

0

Hazlemere South

 

1

0

 

0

1

 

1

0

 

0

0

Icknield

 

0

2

 

1

1

 

2

11

 

2

2

Lacey Green, Speen and the Hampdens

 

1

0

 

0

1

 

0

0

 

2

0

Marlow North & West

 

6

1

 

1

3

 

3

0

 

6

0

Marlow South East

 

3

2

 

2

1

 

4

0

 

1

0

Micklefield

 

1

0

 

0

0

 

2

0

 

1

1

Oakridge & Castlefield

 

2

0

 

3

0

 

4

1

 

2

2

Ryemead

 

4

0

 

0

1

 

1

1

 

1

0

Sands

 

1

0

 

2

0

 

1

0

 

1

1

Stokenchurch & Radnage

 

0

3

 

1

2

 

3

4

 

3

2

Terriers & Amersham Hill

 

0

0

 

0

0

 

1

0

 

4

0

The Risboroughs

 

0

1

 

0

0

 

2

1

 

3

0

The Wooburns

 

0

0

 

1

1

 

1

2

 

1

0

Totteridge

 

1

0

 

0

3

 

0

0

 

2

0

Tylers Green & Loudwater

 

0

2

 

2

0

 

1

0

 

2

3

TOTAL

 

29

18

 

27

29

 

47

37

 

62

18

GRAND TOTAL

 

47

 

56

 

84

 

80