“Certificates of Lawfulness offer an excellent but not always well-known solution for dealing with certain planning cases where development requiring planning consent has been carried out without permission or where a planning condition has been breached”, says Brian Dinnis of Acorn Rural Property Consultants.
Dinnis explains that under the Town and Country Planning Act 1990 unauthorised development becomes immune from enforcement action after a certain period of time; either 4 years for operational development or change of use to a single dwelling house or ten years for all other breaches. However, when applying for a Certificate of Lawfulness it is important to note that the onus is on the applicant to prove that the development or use is lawful on the basis of the balance of probability. On the other hand, however, the planning merits of a case are irrelevant since the award of a certificate is a matter of legal determination on the basis of the available facts and, unlike a planning application, whether the breach of planning accords with planning policy is not relevant.
“As well as providing peace of mind that development is lawful and therefore not going to face enforcement action, Certificates of Lawfulness are also useful when selling property to provide confidence as to lawfulness of buildings and uses, particularly where their status is questionable. Furthermore, in the case of an agriculturally tied property if the dwelling is occupied in contravention of the occupancy condition continuously for in excess of 10 years, obtaining an Certificate of Lawfulness would enable the property to be sold without the restriction and benefit from a significantly higher value. One important point to watch out for is that the condition would still remain in the background and if complied with by a future occupier would nullify the Certificates of Lawfulness. If that happened, e.g. by a retiring farmer moving in to a bungalow that has been let on the open market to generate extra income, then the time limits for any future breaches would start from scratch. In order to remove a condition, it is necessary to apply to delete it from the planning permission”, adds Dinnis.
For advice on rural planning matters please contact Brian Dinnis at Acorn Rural Property Consultants on 01884 214052 or at briandinnis@acornrpc.co.uk. Brian is a Chartered Surveyor and an associate member of the Royal Town Planning Institute.
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