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Certificate of Lawfulness of Existing Use or Development when planning conditions have been breached

The local authority refused an application for a certificate of lawfulness of existing use or development (CLEUD). Whilst the development started before planning permission expired, the development was in breach of two other conditions of the planning permission. On appeal the planning inspector (the inspector) overturned the decision. The local authority then appealed to the High Court.

The High Court dismissed the local authority’s application, agreeing with the inspector that:

  • The conditions were not prohibitive in nature.

  • The conditions did not go to the “heart of the planning permission”.

  • Therefore they were not ‘true’ conditions precedent.

  • Since the conditions breached were not conditions precedent, the “Whitley principle” did not apply and the development as a whole was not unlawful.

  • As the development as a whole was not unlawful, the local authority was wrong not to grant a CLEUD.

The case provides a useful checklist for:

  • Local authorities when considering whether to grant a CLEUD.

  • Applicants wishing to apply for a CLEUD.

A certificate should not necessarily be refused whenever planning conditions have been breached. The local authority should apply the 3-stage test identified in the case of R (Hart Aggregates) v Hartlepool Borough Council (2005) and consider whether the “Whitley principle” applies.

As the law currently stands, the local authority should only refuse to grant a CLEUD if the “Whitley principle” applies, and there are no applicable exceptions.

PLC Magazine 31.10.08