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Oliver Bussell

Partner - Sevenoaks and Ashford

15th December 2020

What is a CLEUD? – the process and pitfalls of establishing lawfulness of use (and what to do afterwards)

A CLEUD is a certificate issued by the local planning authority (council). It must be issued where a planning condition has been breached for ten years, where a change of use has become established across ten years, or for built development or the change of use to a dwelling, more than 4 years ago.

Now this doesn’t actually make the development or use, lawful. But it prevents enforcement because it establishes that the use or development is unenforceable. It gives comfort and certainty to those who have breached development control after a sufficiently long period of time. Finally, a CLEUD probably helps incentivise councils to keep their eyes open and ensure they are not letting important breaches occur without taking action.

All the same, CLEUDs are curious beasts. Although in a way they look like planning applications – you fill in a form and pay a fee to the council to determine them – they are starkly different from any other planning application for one important reason. They do not involve the exercise of any planning judgement or discretion by the council – as normal planning applications do. The grant or rejection of a CLEUD application rests on whether the evidence supporting them is compelling or not.

This is why it is so important to prepare well and be thorough in making a CLEUD application.

Preparing a CLUED application

Preparation for an effective CLEUD application depends very much on the nature of the development or use you are trying to establish. But evidence is key. That is why a CLEUD is usually “anchored” by a statutory declaration by the owner of the land. That statutory declaration should rehearse only the first-hand knowledge of that person as to the development and uses; where and when carried out and should refer wherever possible to as much supporting evidence as is needed to make the case. Invoices, receipts, estate agents’ brochures, family photographs – even press cuttings from a photo shoot of one of my clients’ developments – have led to the granting of a CLEUD.

Of course, the owner of the land is not always the best placed person to make the statutory declaration – it can be someone else like a tenant or even a neighbour. But you have to be careful that the evidence they can speak to will be as detailed and compelling as is needed – and that they can supplement their evidence if it is pressed by the council.

Also key is continuity, and there’s a really dangerous pitfall here.

What many applicants overlook is that a use whose continuity cannot be established will fail. Nor does it make any difference that the use was first established very much longer ago than the statutory minimum, if you cannot show 10 years continuous user to the present day. Very often – and inevitably in tenanted property for example – there will be gaps. Those gaps are not necessarily fatal, provided that sufficient thought has been given to addressing them either as part of the application or in the event that the council raises a question. The most dangerous position a landowner can get into is submitting a poorly-thought out CLEUD which the Council then identify as not establishing a continuous use throughout the period.

In that case the matter may very well be taken up by their enforcement team.

So preparing a really thorough application is important. But what do you do after it’s been granted?

Well, possibly nothing. You, your buyer, your funder – may all be happy. But you should remember the strict legal position which can get lost sight of in the post-CLEUD euphoria.

Legal position of CLUED

A CLEUD is often treated as though it is a sort of condition-free planning permission, laying to rest the question of breach and unlawfulness in perpetuity. That is wrong. Under the legislation the use/ development was immune from enforcement on the date that the certificate was issued. There may be a danger if the development cannot be shown to have been continuous since the CLEUD was issued, that enforcement could arise. The obvious situation where this can become an issue where a CLEUD has been obtained in breach of a planning condition: the planning condition could technically be reactivated where the breach stopped occurring, even for a short period!

I think it is really important to keep a sense of proportion on the question of making further planning applications after obtaining a CLEUD. A technical lapse in continuity of user is highly unlikely to come to the notice of the Council in most cases; it is, even then, unlikely to meet their own internal test of “expediency” as to whether they would want to enforce.

But where the problem does present a risk there is an answer which is going on to “perfect” the planning situation by making a further planning application, and that may need further technical support from valuers, planners or other consultants.

Conclusion

A CLEUD can give effective protection against enforcement for a very wide range of planning breaches. The sensitivity of those breaches will drive how important it is to obtain that certificate, and, how much and what quality of evidence will be needed to support it.

Effective preparation, identifying those who can speak comprehensively to the use/development, with robust legal advice, is key.

Contact our planning lawyers in Sussex and Kent

Oliver Bussell is Partner and Planning Lawyer at Rix & Kay. For more information or if you have a planning law question please email oliverbussell@rixandkay.couk

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