Lawful Development and Previously Developed Land

[TonyAtTheCroft]

My LA (Calderdale) has turned down my application to rebuild our dwelling in the Green Belt. I applied under paragraph 154(g) of the new NPPF (December 2024) which creates an exception in the green belt if the land is "Previously Developed Land" (PDL).

They are saying that the land is not PDL under the current definition because the existing development was legalised by a Certificate of Lawful Development (CLD) granted to us in 2023.

The definition of PDL in the new NPPF starts:  "Land which has been lawfully developed and is or was occupied by a permanent structure and any fixed surface infrastructure associated with it..."

The words "...has been lawfully developed..." were added in for the latest NPPF so were not there prior to December 2024.

So they are using this amendment to claim that a Certificate of Lawful Development does not mean that the land has been Lawfully Developed!!  Sounds crazy to me.

My view is that there is no difference between development made lawful through planning permission, and development made lawful via CLD. I believe that these extra words have only been added to the definition of PDL in order to exclude developments that are not lawful in any respect, that is, no PP or CLD.

I think they are just clutching at straws in order to refuse my development.

What do you guys think?

[IanR]

  On 21/02/2025 at 10:11, TonyAtTheCroft said:

My view is that there is no difference between development made lawful through planning permission, and development made lawful via CLD.

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There is a subtle difference. The development was not "made lawful" by the CLEUD, it just became immune from enforcement action.

 

If at any time you cease the breach in planning, ie. you knock the house down, then the CLEUD expires.

Rather than clutching at straws, they are correctly applying planning law.

Have you tried for retrospective planning, since gaining the CLEUD. It would be pragmatic for the LPA to now approve a retrospective planning app. Although that doesn't mean they will.

 

Edited February 21 by IanR

[BigBub]

I would take it to appeal if I was you. Certificates of Lawful Development for existing development are made under Section 191 of the Town and Country Planning Act 1990 which defines lawful development as development against which no enforcement action may be taken and where no enforcement notice is in force, or, for which planning permission is not required      . (refer to https://www.gov.uk/guidance/lawful-development-certificates#definition-of-lawfulness-and-its-limits)

 

It might depend on how you made your CLD application though with the wording you used and the land you outlined in red compared with your application.

[G and J]

Our neighbours (god bless them!) applied for both planning permission and a certificate of lawful development for a granny annexe. Exactly the same building/location4construction method.

 

They were refused planning permission, but the LPA "had" to grant a CLD under the caravan act.

 

They are clearly believing they will get planning eventually (just paid over 150k for it) but LPA/parish council planning frameworks would suggest otherwise.

[TonyAtTheCroft]

  On 21/02/2025 at 11:41, BigBub said:

I would take it to appeal if I was you. Certificates of Lawful Development for existing development are made under Section 191 of the Town and Country Planning Act 1990 which defines lawful development as development against which no enforcement action may be taken and where no enforcement notice is in force, or, for which planning permission is not required      . (refer to https://www.gov.uk/guidance/lawful-development-certificates#definition-of-lawfulness-and-its-limits)

 

It might depend on how you made your CLD application though with the wording you used and the land you outlined in red compared with your application.

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Thanks BigBub, I think you are right, that would support my view from what I've read. The proposal that was turned down was entirely within the red line boundary agreed in the CLD, and I emphasised that fact in several places. I will definitely take this to appeal.

[TonyAtTheCroft]

  On 21/02/2025 at 11:36, IanR said:

 

There is a subtle difference. The development was not "made lawful" by the CLEUD, it just became immune from enforcement action.

 

If at any time you cease the breach in planning, ie. you knock the house down, then the CLEUD expires.

Rather than clutching at straws, they are correctly applying planning law.

Have you tried for retrospective planning, since gaining the CLEUD. It would be pragmatic for the LPA to now approve a retrospective planning app. Although that doesn't mean they will.

 

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Thanks IanR, but in the Planning Practice Guidance it states;

"The statutory framework covering “lawfulness” for lawful development certificates is set out in section 191(2) of the Act. In summary, lawful development is development against which no enforcement action may be taken and where no enforcement notice is in force, or, for which planning permission is not required."

Which seems to be saying the development becomes lawful once enforcement action can't be taken?

[Temp]

  On 22/02/2025 at 17:26, TonyAtTheCroft said:

Thanks IanR, but in the Planning Practice Guidance it states;

"The statutory framework covering “lawfulness” for lawful development certificates is set out in section 191(2) of the Act. In summary, lawful development is development against which no enforcement action may be taken and where no enforcement notice is in force, or, for which planning permission is not required."

Which seems to be saying the development becomes lawful once enforcement action can't be taken?

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I think this level of detail Warrants getting a planning consultant involved. I would find someone local and give him all of the above with a request for an opinion and a quote to handle an appeal.

[DevilDamo]

  On 22/02/2025 at 21:51, Temp said:

and give him

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or her.

[IanR]

  On 22/02/2025 at 17:26, TonyAtTheCroft said:

Thanks IanR, but in the Planning Practice Guidance it states;

"The statutory framework covering “lawfulness” for lawful development certificates is set out in section 191(2) of the Act. In summary, lawful development is development against which no enforcement action may be taken and where no enforcement notice is in force, or, for which planning permission is not required."

Which seems to be saying the development becomes lawful once enforcement action can't be taken?

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I did say the difference is subtle. I have assumed you obtained the CLEUD due to a continuing breach of planning law (for either 4 or 10 years, depending on circumstance). The CLEUD makes that breach "lawful" and immune from enforcement, while the breach continues. The minute the breach discontinues, the 4 or 10 year continuation is broken and the clock is re-set. Whatever the circumstances were, the required breach period is now 10 years due to a change in April 2024, so it would take another 10 years of breach before becoming immune from enforcement again.

 

I've taken your statement "rebuild our dwelling", to mean you requested permission to knock-down/remove the existing (immune from enforcement) dwelling and build new. The removal of the existing building would constitute a ceasing of the breach, the existing CLEUD would therefore expire.

 

I have assumed that what is now a dwelling was not previously an "approved" building with a different use, that you have converted to a dwellinghouse. There may be other options around a Change of Use. If in doubt, hire a planning consultant and allow them to go through the planning history on the site.