Checklist: evidence for a section 191 certificate on a use
A certificate of lawfulness for an existing use is won on evidence you supply. The categories that count, how to draft a statutory declaration and how to deal with gaps in the record.
A section 191 certificate evidence checklist has one organising principle: the burden of proof sits entirely on you, and the standard is the balance of probability. Apply under section 191 of the Town and Country Planning Act 1990 for a certificate of lawfulness of an existing use, and the local planning authority will not go looking for evidence that helps you. It will test what you send. Where your evidence is precise and unambiguous and the authority holds nothing to contradict it, your own account can be enough, which is the principle usually cited from the Gabbitas decision.
That cuts both ways. Vague evidence loses, and a refused certificate puts the breach back on the enforcement register.
What you have to prove and to what standard
For a use, you are proving that the use began at a given date, that it continued without material interruption for the relevant period, and that its character has not materially changed in a way that restarted the clock. Three elements, each needing dates.
The period itself has moved. Historically a change of use other than to a single dwellinghouse carried a ten-year immunity period under section 171B, while use as a single dwellinghouse and operational development carried four years. Section 115 of the Levelling-up and Regeneration Act 2023 extends the period to ten years for all breaches in England, and as at October 2026 the position is that the extension applies to breaches occurring on or after the date it was brought into force, with earlier breaches keeping the shorter period. Verify that date and the transitional position before you fix your dates, because this single point decides whether an application is worth making.
Continuity is where most applications fail. A gap of several months with the property empty is survivable if you can show the use was not abandoned. A gap during which the building was used for something else is usually fatal, since the clock restarts on the later use.
Documentary evidence by category
Assemble evidence in layers, and expect to need several categories rather than one strong one.
- Occupation records: council tax bills and banding history from the Valuation Office Agency, electoral roll entries, tenancy agreements, rent books, rent statements and deposit protection records.
- Financial records: annual accounts, VAT returns where the use is a business, bank statements showing rent receipts, invoices from contractors, insurance schedules describing the property use.
- Utility records: supply accounts, consumption records showing uninterrupted supply, broadband and telephone accounts, waste collection arrangements.
- Regulatory records: HMO licence records under the Housing Act 2004, food business registration, premises licences, gas safety certificates and electrical installation condition reports naming the number of units.
- Physical and mapping evidence: dated photographs, historic aerial imagery, historic Ordnance Survey editions, dated street-level imagery, floor plans from letting particulars.
- Third-party statements: statutory declarations from occupiers, neighbours, former managing agents and contractors.
Utility consumption is the quiet workhorse of a continuity case. A consumption history showing uninterrupted supply at a level consistent with five occupied bedsits does more than three enthusiastic letters.
One warning for landlords. An HMO licence proves the property was licensed for occupation under housing legislation. It does not prove the planning use was lawful, and the two regimes run independently. Councils routinely issue licences for properties in planning breach.
Statutory declarations and how to draft them
A statutory declaration made under the Statutory Declarations Act 1835 and sworn before a solicitor, commissioner for oaths or notary carries more weight than a signed letter, because the declarant is exposed to perjury-equivalent consequences for a false statement.
Draft them to be useful. Each declaration should state who the declarant is, how they come to know the facts, and then the facts themselves as dates and specifics. "I collected rent from six separate tenancies at the property on the first Friday of each month between March 2012 and August 2019, and I attach my rent book for that period" is evidence. "The property has been flats for as long as I can remember" is not.
Avoid identical wording across declarations. An authority reading five statements in the same phrasing will treat them as one statement signed five times, and an inspector will say so on appeal.
Where a declarant has gone, their contemporaneous documents still count. A letter written in 2014 describing the property as six self-contained units is better evidence than a declaration written in 2026 recalling 2014.
Gaps in the record and how to address them
Name the gaps yourself. A statement that acknowledges a nine-month void in 2017, explains it with a refurbishment contract and shows the use resumed immediately afterwards is far stronger than a submission that hopes nobody notices.
Three repair strategies work. Request records you do not hold, since the Valuation Office Agency, the authority's own council tax and housing teams and your water undertaker all hold data about your property that you can ask for. Build an inference chain where direct evidence is missing, using continuous council tax liability alongside continuous insurance to bridge a documentary gap. And date the physical fabric, because an arboricultural or building survey can sometimes establish that a structure or subdivision predates a given year.
What does not work is submitting a thick bundle and leaving the authority to find the argument in it. Every application should carry a short covering statement that sets out the claimed use, the claimed start date, the period relied on, and a numbered index of the evidence against each element.
Assembling the bundle in a usable order
Order the bundle chronologically within each category, and index it. A workable structure runs: covering statement, chronology table, plans showing the use claimed, then tabbed evidence sections in the order of the categories above, then the statutory declarations.
The chronology table is the document the case officer will actually read. One row per year, one column per evidence type, a tick where you hold something and a note where you do not. Officers approve certificates off the back of that table more often than off the back of any single document.
Three practical points on the application itself. The plan must show the exact extent of the land to which the certificate is to apply, because a certificate is conclusive only for what it describes. The description of use must be precise, including the number of units or occupants where that matters for the use class. And the fee for an existing use certificate mirrors the fee for a planning application for the same development, with a proposed use certificate under section 192 charged at half that, so check the current fee schedule on the Planning Portal before sending payment.
Our checklist for discharging a drainage condition uses the same indexing discipline, and the householder appeal statement checklist repays a read before you submit, because the structure that persuades an inspector is the structure you want in front of the case officer first.
What happens after submission
The authority has eight weeks to determine the application. Refusal or a certificate in narrower terms than you sought can be appealed under section 195, and the appeal is determined on the same balance of probability test with the same burden on you.
Two risks deserve naming. A certificate obtained on false information can be revoked under section 193(7), and knowingly or recklessly making a false or misleading statement is a criminal offence under section 194. Also, an application for a certificate tells the authority exactly where the breach is, so where the evidence is thin you are handing over a case rather than closing one. Take advice on that sequencing before applying.
Where the certificate is part of a wider application strategy, the supporting narrative often ends up inside a planning statement for the related permission, and PlanScope can draft that structure to policy and flag the facts it needs from you.
Enter your postcode on PlanScope to see which documents a change of use or conversion is likely to need.
This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.
Frequently asked questions
What standard of proof applies to a section 191 application?
The balance of probability, with the burden on the applicant. The authority does not have to disprove your case, but where your evidence is precise and unambiguous and the authority holds nothing to contradict it, your own account can be sufficient. That principle is usually cited from the Gabbitas decision and is applied by inspectors on appeal.
Is the immunity period four years or ten years?
Historically ten years for most changes of use and four years for use as a single dwellinghouse and for operational development. Section 115 of the Levelling-up and Regeneration Act 2023 extends the period to ten years for all breaches in England, subject to the date it was brought into force and the transitional provisions. Verify which period applies to your dates before applying.
Does an HMO licence prove the planning use is lawful?
No. Licensing under the Housing Act 2004 and planning control are separate regimes, and councils regularly license properties that are in planning breach. A licence is useful corroborative evidence of occupation and of the number of occupants, but it does not establish that the planning use was ever lawful.
How should a statutory declaration be written?
State who the declarant is, how they know the facts, and then the facts as dates and specifics with documents attached. Avoid identical wording across several declarations, because an authority will treat them as one statement signed repeatedly. Swear each one before a solicitor, commissioner for oaths or notary.
What does a section 191 application cost?
The fee for a certificate of an existing use mirrors the fee that would be payable for a planning application for the same development, while a proposed use certificate under section 192 is charged at half that. Fees are indexed, so check the current schedule on the Planning Portal before submitting.
What are the risks of applying and being refused?
A refusal leaves the breach exposed, because the application has told the authority where it is and what it involves. A certificate obtained on false information can be revoked under section 193(7), and a knowingly or recklessly false statement is an offence under section 194. Take advice on timing where the evidence is thin.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.