Appeals against refusal of an existing lawful use certificate

When a council refuses a certificate of lawfulness of existing use or development, the appeal is a factual contest and the burden of proof sits with you. The test is the balance of probabilities, and your own evidence can be enough on its own. Where the authority produces nothing to contradict a clear and uncontested account, a certificate should follow. That principle, established in the case law on these applications, is the reason so many refusals are overturned.

The appeal deadline for a certificate decision is much shorter than for a planning appeal. Check the period stated on the decision notice and in the Planning Inspectorate's procedural guide, and lodge it straight away.

Establishing an existing lawful use

An application under section 191 of the Town and Country Planning Act 1990 asks the authority to certify that a use, operation or activity is lawful. Lawful means either that it had planning permission, or that the time for enforcement has expired.

The relevant immunity periods are set by section 171B. A change of use other than to a single dwellinghouse, and a breach of condition, each require ten years of continuous breach. Operational development and a change of use to a single dwellinghouse historically required four years, and section 115 of the Levelling-up and Regeneration Act 2023 moved those limits in England to ten years. Establish which regime catches your facts before you commit to a date, because the change applies from its commencement rather than retrospectively.

Describe the use precisely in the application. A certificate is granted in the terms the application seeks, or in terms the decision maker considers appropriate, and a description that is too wide invites refusal while one that is too narrow leaves you with less than you had.

Continuity and the risk of abandonment

Continuity is where most of these appeals are won and lost. The use has to have continued throughout the whole of the relevant period and to subsist at the date of the application.

A gap in the middle usually destroys the claim. A business that closed for eighteen months and reopened has not had ten years of continuous use, however long the total period looks.

Abandonment is a separate idea and a harder one. A use can be abandoned so that it cannot be resumed without a fresh permission, and the courts have looked at four matters together: the physical condition of the building or land, the length of the period of non-use, whether there has been any intervening use, and the evidence of the owner's intention. None is decisive alone.

That last factor is the one you can influence. Marketing particulars, rent demands, insurance on a trading basis, retained fittings and plant, and correspondence showing an intention to resume all point away from abandonment. An empty shell stripped to brick, rated as empty for a decade, with no attempt to let it, points the other way.

Evidence of the use over the relevant period

Contemporaneous documents beat recollection every time. Build a bundle in date order covering every year of the period.

• Accounts, VAT returns and tax records showing trading from the premises.
• Invoices to and from the premises, with the address on them.
• Business rates records and the rating description over time.
• Leases, licences and tenancy agreements with their dates and plans.
• Utility accounts and meter readings, which show whether the premises were in use.
• Employment records, payroll and staff rotas.
• Delivery notes, waste collection contracts and service agreements for plant.
• Dated photographs, and aerial or street-level imagery where the date can be established.
• Statutory declarations from people with direct knowledge, each setting out how they know what they say.

Statutory declarations carry weight when they are specific. A declaration stating that the declarant delivered to the premises every Tuesday between named years, and describing what was happening inside, is evidence. One asserting that the use has continued since the 1990s, with no detail, is close to worthless.

Fill the gaps deliberately. Where no document exists for 2017, say so and explain why, rather than leaving the inspector to notice it.

Intensification and whether it matters

Councils sometimes refuse on the basis that the use has intensified, and the point is often misplaced.

Intensification matters only where it amounted to a material change of use in itself. More of the same activity, without a change in the character of the use, is not a change of use, and the authority has to show the character changed rather than simply that there is more of it.

Where intensification did change the character, the analysis resets. The ten year period runs from the intensified use, not from the original one, and the certificate must describe the use as it now is.

A connected problem is the planning unit. A certificate is sought over defined land, and if the correct unit is larger or smaller than the land in the application, the description of the use may be wrong. Deal with that in the application rather than in evidence.

The appeal and the burden of proof

The appeal under section 195 goes to the Planning Inspectorate. Written representations suit cases resting on documents. A hearing or an inquiry is better where the facts are disputed and witnesses need to be tested, and in certificate appeals that is common, because the authority often disputes what the declarations say rather than the law.

Four points of practice.

1. Put in everything at the outset. These appeals turn on the completeness of the bundle, and late evidence is unwelcome.
2. Produce a chronology, one page, with a document reference against each year.
3. Address the authority's stated reason for refusal directly, in its own terms, rather than restating your case.
4. Make your witnesses available where an inquiry or hearing is held. A declaration from someone who will not attend carries less weight once the authority challenges it.

The authority does not have to prove anything. It only has to raise enough doubt that the inspector cannot be satisfied on the balance of probabilities, so the work is in removing the doubt. Decisions on comparable facts are an indication of how inspectors have approached similar evidence rather than precedent, which is the caution in using appeal decisions in a planning application.

Partial certificates

A decision maker is not limited to granting or refusing what was asked for. A certificate can be issued for part of the land, or for one of several uses applied for, or in a modified description.

That flexibility is useful and needs managing. Where you apply for a certificate covering a whole site and the evidence is strong for the yard and weak for the building, you may receive a certificate for the yard alone. That is a better outcome than a refusal, and it defines the lawful position for the rest, which can make a later application harder.

Two tactical responses. Consider applying for the part you can prove, and dealing with the remainder separately once the evidence improves. And where a modified description is likely, propose the wording yourself, so the certificate issued is one you can live with.

A refusal can also be met with a retrospective planning application in the alternative, supported by a short Planning Statement addressing the development plan, so that there is a route to lawfulness even if the evidence falls short. The same twin-track thinking applies to appealing a prior approval refusal under Class MA.

Protecting a use once confirmed

A certificate is conclusive as to the lawfulness of what it describes, at the date stated, for the purposes of the Act. Treat it as a title document.

Keep the original with the deeds and give a copy to any lender, purchaser or tenant. Record the date, the land, the exact description of the use, and any conditions or qualifications in it.

Then protect the position going forward. A certificate does not prevent a use being lost later. A material change of use after the certificate date needs its own permission, a long period of non-use can still raise abandonment, and a certificate about the use says nothing about whether any building works were lawful.

Where the business changes, check whether the change takes you outside the certified description before making it. That check costs an hour and saves the whole exercise being repeated.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it, and take legal advice before any appeal deadline passes.

Enter the premises postcode on PlanScope to see which documents a retrospective application would need. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.