Anyone who has seen a crime drama will be familiar with witnesses in the dock giving their oath - hand on the Bible or other appropriate text - that the evidence they give "shall be the truth, the whole truth, and nothing but the truth!". Well, the same goes for certificate of lawfulness (CLUD) applications.
Revocation
Councils have the right to revoke CLUDs under s.193(7) TCPA 1990 (s.152(7) in the Scottish Act) in circumstances where (a) a statement or document was false in a material manner or (b) any material information was withheld.
The English High Court has upheld a decision of the London Borough of Islington Council's to revoke a CLUD granted in 2019.
The details of what was (or wasn't) said can be found in the full case (found here), but in essence the Council had granted a certificate of lawfulness of existing use for 4 units for distribution and storage (Class B8) in breach of condition on the basis of continued use for "since 1992 to 2019". Through a planning application consultation for improvement works to the 4 units, it was brought to the Council's attention that some of the information supporting the CLUD application was not correct and/or had been withheld, including:
- that the 4 units were interlinked, forming one planning unit, although 2 units were not connected;
- that all 4 units had been "fully operational" since 1992 (relying on old photographs from 2006), although 2 of the units had been marketed separately since 2006 and had been unused for a period around 2011;
- the statutory declaration professed "first hand" evidence of the use of the units since 1992, but the individual had not attended the site between 2014 and 2017; and
- the application failed to mention that all the units were unused for a period between 2015-2017.
Legal issues
In considering the challenge to the revocation, the court addressed/confirmed some important planning law issues:
- The false information or withholding need not be deliberate in order for the Council to be able to exercise their powers of revocation of certificates (i.e. an objective test).
- When considering the materiality of the false statement/withheld information, the relevant test is if "[the falsity or withholding] could, and not necessarily would, have resulted in the application for a [CLUD] being refused, or being granted in different terms" (para 95) if a line of inquiry had been followed on the correct/withheld information.
- When calculating the period of continuous breach of planning (to determine immunity from enforcement – either 4 or 10 years, as applicable), the clock only runs when the local planning authority can take enforcement action. "[A] breach of planning control must continue throughout the immunity period. If, for example, a breach of condition ceases the clock stops. If the condition is breached again a fresh breach of planning control occurs and the clock starts all over again" (para 132).
- Where a breach of planning (e.g. change of use without permission) has become immune from enforcement due to effluxion of time (4 or 10 years, as applicable), the consequent lawful planning "right" (e.g. the lawfulness of the use) is not subsequently lost if that right is not exercised for a period – e.g. the lawful use does not have to be being exercised at the date of the CLUD application. For any such right to be "lost", it requires either (i) abandonment, (ii) replacement (by a different use) or (iii) the formation of a new planning unit.
Implications
The takeaway from this case is that applicants must ensure that their CLUD applications are accurate and present all the relevant facts to the planning authority, particularly as the consequences can be serious (potential offences). The judge kindly provided some tips:
"To enable an authority to assess the weight to be placed upon a statutory declaration or witness statement, it is good practice for the author to make plain which matters are within his own personal knowledge and, unless it is obvious, how that knowledge was obtained. For each matter outside his own knowledge, he should identify the specific source relied upon. These are essentially the principles applied to witness statements in civil litigation (CPR PD32 para.18.2) and it is difficult to see why the approach should be any less rigorous in the context of s.171B where a declaration may be dealing with continuity over a long period of time.” (para 68)
The value of obtaining a CLUD is its confirmation that a use, operation or action is lawful and therefore cannot be enforced against. In this case, Ocado required the CLUD to confirm they were able to use the site for a distribution and storage use despite there being a condition on a planning permission from 1984 preventing such use and, therefore, the planning documentation on the site suggested that their intended use would breach the 1984 condition. The CLUD provided them with confidence that their intended use was lawful (albeit the CLUD was subsequently found to be based on incorrect/incomplete information).
But should prospective purchasers and tenants seeking to rely on a CLUD be expected to dig behind CLUDs to check for themselves that they have been correctly granted? Perhaps this is too much to be expected, particularly as it is unlikely that further investigation would often identify flaws in a CLUD application (especially if the alleged continuous breach was some time ago).
Therefore the most practical protection for buyers/tenants seeking to rely on the existence of a CLUD is for a suitably worded warranty to be included along the lines that the CLUD was granted on correct, accurate and complete information; but this would likely be limited to the seller/landlord's knowledge and this may not be helpful if the CLUD pre-dated the existing owner and therefore their knowledge is limited.
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