CLEUD AND CLPUD

BRINGING CERTAINTY TO THE PLANNING STATUS OF YOUR LAND

It’s a fair bet that most people are familiar with planning applications and have a basic grasp of how the planning system works.

A lesser known but no less important planning art relates to securing CLUEDs and CLPUDs. To the uninitiated these stand for Certificate of Lawfulness of Existing Use or Development (“CLEUD”) and Certificate of Lawfulness of Proposed Use or Development (“CLPUD”).

Their effect is to establish that the use or operational development of land is lawful and to formally secure endorsement of this from the local planning authority. Let’s take a closer look at each.

CLEUD

This is where an applicant seeks to confirm that any existing use, or operation, or activity in breach of a planning condition or limitation on a planning permission that has already taken place is lawful on the date specified in the application.

It is defined as being lawful if enforcement action cannot be taken against it. This may be because it had, or did not need planning permission (permitted Development), or it may be the case that the use or operation took place more than five years before the planning authority engaged in enforcement action making it immune from planning control;

CLPUD

This is where an applicant seeks to confirm that what they are proposing to do would be lawful before carrying out the associated works i.e. it would not require express planning permission or a further permission. For example, seeking formal acknowledgement that a building can be developed out post its expiration.

Both submissions must provide the following by law:-

(a) specify the land to which it relates;

(b) describe the use or operations in question;

(c) give the reasons for determining the use or operations to be lawful; and

(d) specify the date of the application for the certificate.

The benefits of securing either certificate is that the determination, if approved, has legal status providing certainty to investors, banks, prospective developers and purchasers of land and buildings in the conveyancing process.

Importantly the onus of proof is on the applicant to demonstrate to the local authority or Department that a Certificate ought to be issued “on the balance of probability”.

Unlike a planning application, the local authority does not advertise, consult nor neighbour notify either submission. If the Certificate is refused, there is a right to appeal to the Planning Appeals Commission (PAC).

The type of evidence will depend on the nature, scale and type of development and certificate sought but could include for example: -

1) aerial photography (showing presence of the development / usage)

2) bills (rates/NIE/phone bills) and other statutory approvals etc;

3) overlay plans (approved vs in situ) showing lawful implementation in the correct location;

4) sworn affidavits or statutory declarations (require a solicitor);

We have found that CLEUDs/CLPUDs are featuring more often – this is likely because the PAC will not entertain an immunity argument without it and financial institutions more often than not insist on the Certificate to draw down funding / assess risk.