The Importance of Being Thorough!

We have a number of recent successes which involve matters of planning law rather than planning judgement, which have reminded us of the importance of why we always make detailed and comprehensive submissions for our clients.

We frequently submit applications for clients for Certificates of Lawfulness which seek formal confirmation that an existing or proposed use or building operation are lawful - that is that the use or building does not require a grant of planning permission or has been carried out/ substantially completed for the required period to be immune from any enforcement action against it. The certainty provided by a Certificate of Lawfulness can add value to property or land.

Certificate of Lawfulness approvals are akin to planning permissions - but they are not assessed on their planning merits. Rather they are assessed on whether, on the balance of probabilities, the evidence confirms that what is applied for is lawful either through the passage of time or because it did not require planning permission in the first place. The Council dealing with a Certificate of Lawfulness application will normally refer the application to their legal team.

By way of examples, we have previously submitted Certificate of Lawfulness applications confirming the lawfulness of large student housing properties (‘large HMOs’ which require planning permission). We have also submitted Certificate of Lawfulness applications to confirm that proposed extensions can be built without planning permission, to provide a realistic fallback for other preferred extensions requiring planning permission. We have also submitted Certificates of Lawfulness to confirm that a lawful start has been made on a planning permission before that permission expires, to effectively keep the permission ‘alive’.

Most recently, we applied for confirmation that a dwelling house had been converted without planning permission to 12 self-contained rental flats more than 4 years ago (the current required time period to provide immunity from enforcement action) and that the use as 12 flats was lawful. The building had originally been a large private house, was converted into bedsits many years ago, and had latterly been converted into flats without planning permission. Enforcement investigations were carried out by the Council some years ago and an historic application for a Certificate of Lawfulness submitted by the client had been unsuccessful.

The client came to us stating that they wished to sell the property with a Certificate of Lawfulness in place for the flats to maximise its sales value. In supporting a new application, in addition to assisting the client in the compilation of robust evidence and the preparation of sworn statements confirming the continuous use of the building as flats for the required period, we liaised with a Planning Barrister on their behalf.

Thereafter, we submitted the Certificate of Lawfulness application, including the tailored Barrister’s legal opinion in support. The application was thorough and consistent, with a full breadth of evidence and detailing bolstered by the legal opinion. The Certificate of Lawfulness was subsequently granted by the Council without any query or issues being raised. Our client was delighted!