Certificates of lawfulness
Mike Dade explores how you can avoid applying for full planning consent, while ensuring your scheme is above-board
Mike Dade explains the ins-and-outs of this approval, including how it can help you avoid the rigmarole of a full planning application for qualifying projects
Certificates of lawfulness – also known as lawful development certificates (LDCS) – are a way for you to get a council to formally determine if an existing building, construction works or the use of a property or land is lawful. Or, whether a particular future development would be lawful, were you to carry it out. They can be an incredibly helpful tool in dealing with the planning system. So, let’s take a look at what they are, why they’re useful and how to go about applying for them.
The basics
Applying for an LDC is a bit like going in for planning permission; you fill in a form, pay a fee and get a formal determination from the council on whether what you’re applying for is lawful. Unlike a planning application, the council’s decision must be based on planning law itself and not just policy. Also, decisions cannot be made subject to conditions. Where an LDC is refused, there’s a right of appeal, similar to the process for a planning application.
Even if you’re pretty certain that the works you’re considering either don’t need planning or will be covered under permitted development (PD), an LDC can determine whether the council agrees with you. This is particularly helpful where those works would involve significant investment, such as an extension, large garage or creating an annexe. They can also be used to establish that existing works or uses are lawful, generally because they have existed for the appropriate period of time.
Common applications
The most typical use of LDCS for self builders is likely to be determining whether a project falls within PD rights and is therefore lawful. An informal opinion from a planning officer is no substitute for the certainty that an LDC brings, and even formal pre-application advice cannot be altogether relied upon. Obtaining an LDC from the council takes away that element of doubt.
There are also projects like converting your garage into an annexe, or putting a mobile home in your garden, where planning permission isn’t required at all; obtaining an LDC gives you formal confirmation that the council agrees, peace of mind and better chances at selling up later.
If you’ve altered your house without applying for proper consent, extended your garden or broken a condition on a planning permission, over time these things can become beyond the council’s power to take enforcement action and therefore are deemed lawful. If you’re selling a
property, or raising finance on it, an LDC is a great way to formally express that any changes you’ve made are lawful.
New projects
If you’re intending to extend or alter your house and the works appear to be permitted development, apply for an LDC before you start, so that you can be confident that the council agrees. PD rules are hedged about with numerous qualifications and exceptions and their interpretation isn’t always straightforward. Bear in mind, also, that PD rights can be revoked by conditions attached to a planning permission or by blanket removal by a council – which can cover a whole area – via an Article 4 Direction, most commonly found in conservation areas. Note that refusal of an LDC doesn’t necessarily mean the council wouldn’t grant planning permission, it just means that you’d have to make a formal application to find out.
Other candidates would be any potentially expensive projects, such as converting an outbuilding into an annexe, or putting a portable office pod in your garden. The legal arguments concerning such structures and uses are quite complex, and not necessarily well understood by some
council planning officers. So, it’s advisable to seek out professional advice from a specialist planning consultant to give your application the best chance of success.
New projects: how to apply
The first step is to obtain clear drawings showing what’s there now and what you intend to build. A statement explaining why you think the works would fall under permitted development is a good idea as well.
You can apply online via the Planning Portal (www. planningportal.co.uk) in the same way as you would for a formal planning application. The council’s fee for future works is half the normal application cost. So, for any works pertaining to an existing house, it’ll be £103 (in England), which is a relatively small price for the peace of mind a certificate of lawfulness brings.
Existing works & uses
When you need to establish the lawfulness of something that’s been built either without planning permission, or in breach of a consent, then timing is critical. Physical works become lawful after four years, while for any changes of use or infringements on conditions, the time period is a decade. These are known respectively as the four and 10-year rules. The exception is where the use of a building changes to a separate dwelling; the four-year rule applies.
Check very carefully which rule pertain and the dates when works were completed or uses started, as you want to avoid applying too early and thereby notifying the council that there’s unlawful development at your property.
Existing works: how to apply
When you make an application, it’s up to you to provide sufficient evidence to show that ‘on the balance of probability’ the necessary time period has passed. This might include things like invoices from when the works took place, utility bills, dated photographs and sworn statements. If you’re trying to prove that, say, an outbuilding has become a separate dwelling, then separate services bills will provide useful evidence.
Any statements must be specific and make clear exactly what was known about the development, when and how that knowledge was gained and over what period of time. Owners’ statements are usually necessary, but additionally one from a third party – a regular visitor to the property, for example – adds weight to the case.
It’s advisable to err on the side of caution with these types of application, because the council might be looking for excuses to refuse, especially if they wouldn’t normally have granted permission for the development had you made a planning application. Neighbours and parish councils can occasionally come up with counter-evidence, so be prepared to defend your position if they do.
Fees for LDC applications for existing works or uses are the same as for a full planning application.
Final thoughts
Applications for certificates of lawfulness are not determined on the basis of interpreting planning policies, local politics or subjective decisions about appearance, character or whether your project might upset your neighbours. Accordingly, decisions should be more straightforward and predictable, but they can take you into complex areas of planning law, and the correct definition of it. So, for anything remotely complex, take expert advice from the appropriate specialists before stepping into this potential legal minefield.