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Local authorities may substitute a description of use in CLEUDs, High Court judge rules

A local planning authority may issue a certificate of lawfulness of existing use or development (CLEUD) with a description of existing use different to that in the application form, a High Court judge has ruled .

The judge said that the power under the Town and Country Planning Act 1990 for a local planning authority to grant a CLEUD recognises that the use as described by the applicant may not adequately describe the existing use which is lawful.

The local planning authority may therefore modify the description to correctly reflect the existing lawful use if it is satisfied that the substituted use has been carried on continuously for a period of ten years or more.

The judge said that Wiltshire Council had been entitled to substitute 'vehicular parking' use in a CLEUD where the application form had described the existing use as 'ancillary vehicular parking'.

However, he quashed the CLEUD because the Council had failed to consider whether, on the balance of probability, the land in the application had been used for vehicular parking for a continuous period of ten years or more.

The judge said that the Council's planning officer had granted the CLEUD on the basis that there had been some parking over a continuous ten year period and that this was sufficient to establish a lawful use for vehicular parking. This was an incorrect approach, he said.

It would not be permissible to aggregate a period when the land was used for one use, such as ancillary parking, with another period of use, such as parking generally, the judge said.

"A situation could arise whereby the land would be certified for use for vehicular parking and could be used by any person, such as a resident of the area, a visitor to a business or indeed any member of the public, even though the land had not been used for that purpose for a continuous period of ten years," he added.

The Council will now need to consider whether to reject the CLEUD application or whether to modify the description or substitute a different description if it is satisfied that the land has been used for that use for a continuous period of ten years or more. 

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