When 10 Years Use May Be Insufficient To Grant A CLEUD

The recent cases of R (on the application of Alison Sellars) v Basingstoke and Deane Borough Council [2013] EWCH 3673 (Admin) and R (Freedman) v Wiltshire Council [2014] EWHC 211 provide useful clarification of the correct approach to take when making or determining an application for a certificate of lawful existing use (CLEUD). Landowners often make such applications to obtain confirmation that their use of the land has been going on for so long that the planning authority can no longer take any enforcement action in respect of it - even though that use is not authorised by planning permission.

The statutory provisions relating to CLEUD applications

These are to be found in section 191 of the Town & Country Planning Act 1990, which provides:

1. If any person wishes to ascertain whether—

   1. any existing use of buildings or other land is lawful;

   2. any operations which have been carried out in, on, over or under land are lawful; or

   3. any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,

   he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.

2. For the purposes of this Act uses and operations are lawful at any time if—

   1. no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and

   2. they do not constitute a contravention of any of the requirements of any enforcement notice then in force.

   THE BASINGSTOKE CASE

   This case involved an application for a certificate of lawful existing use for a small area of farmland that had been used by a model aircraft club for flying model aircraft. The Club applied to the Council for a CLEUD on the basis that it had been using the land for over 10 years and as such was entitled to a certificate confirming the use had become lawful.

   The Council, having reviewed the evidence submitted with the application, and having made further enquiries was satisfied that the use of the small area of land the subject of the application had been so used and granted the certificate.

   A neighbouring landowner who was upset by the noise from the model aircraft challenged the decision by judicial review. The claim was made on a number of grounds but the ground which was successful was

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