Section 195 appeals on a refused certificate of lawfulness

A refused certificate of lawfulness is appealable under section 195 of the Town and Country Planning Act 1990, and the appeal turns almost entirely on evidence rather than on planning merit. The Inspector is not deciding whether the use or operation is acceptable. They are deciding whether, on the balance of probabilities, the applicant has shown it to be lawful. That single difference changes how the appeal is prepared, what goes in the bundle, and where the costs risk sits.

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

What the appeal decides and what it does not

Sections 191 and 192 of the 1990 Act allow an application to certify that an existing use or operation is lawful, or that a proposed one would be. Section 195 gives a right of appeal against refusal, against a certificate issued in different terms from those applied for, and against non-determination.

The Inspector asks a narrow question. Does the evidence establish the facts the applicant asserts, and do those facts make the development lawful in planning terms? Harm to neighbours, highway safety, design quality and local plan policy are all irrelevant. So is the fact that the council would never have granted permission for the thing now being certified.

That narrowness cuts both ways. A strong factual case wins against an authority that dislikes the outcome. A weak one loses even where the use is entirely benign.

The burden and standard of proof

The burden rests on the appellant throughout. The standard is the balance of probabilities, not the criminal standard, and the long-standing approach following Gabbitas is that an applicant's own evidence can be sufficient if it is precise and unambiguous and the authority has no evidence to contradict it.

Two practical consequences follow. First, uncorroborated evidence is not automatically rejected, so a sworn account from the owner covering ten continuous years of a use is capable of succeeding on its own. Second, it only works if the account is specific. Dates, occupancy, who lived there, what the building was used for in each year, gaps and changes. A statement that says "it has always been used as two flats" carries very little weight against a council that produces a council tax record showing a single band.

Where the authority produces contrary evidence, the appellant has to deal with it directly rather than restate the original case.

Building the evidence bundle

The bundle is the appeal. Assemble it as though the Inspector has an hour and no local knowledge.

Evidence that routinely carries weight:

1. Statutory declarations or sworn statements from the owner, former owners, tenants and neighbours, each covering a defined period and explaining how the witness knows what they say.
2. Council tax and business rates records showing separate assessments and their dates.
3. Utility accounts and metering records for separate supplies.
4. Electoral roll entries by address.
5. Dated aerial photography and historic mapping showing a structure in position.
6. Tenancy agreements, rent books, invoices, delivery records and dated photographs with verifiable metadata.
7. Land Registry title entries and plans showing the extent of the planning unit.

Build a chronology first and then slot the documents against it. Gaps matter more than volume. A ten year case with a documented eighteen month vacancy needs an explanation of whether the use was abandoned, because abandonment is the argument councils reach for when continuity is thin.

Annotate every document. An Inspector should not have to work out why a 2014 water bill is in the bundle.

Statutory declarations and cross examination

A statutory declaration made under the Statutory Declarations Act 1835 carries more weight than an unsworn letter, and making a false declaration is an offence. That is precisely why it is persuasive.

Draft them properly. One declarant, one period, first-hand knowledge only, no advocacy, no borrowed phrasing between declarations. Five declarations that read as though one person wrote them invite the obvious inference, and Inspectors say so in decisions.

Procedure matters here. Written representations suit a documentary case with no serious factual dispute. Where the council challenges the honesty or reliability of a witness, a hearing or an inquiry lets that be tested, and an inquiry allows cross-examination. If your case rests on one person's recollection and the authority has produced evidence against it, pressing for an inquiry is often the stronger choice even though it costs more.

Procedural guidance from the Planning Inspectorate sets out the deadlines and the appeal period that applies to section 195 appeals. Check the current period before you diarise anything, because it differs from the shorter window allowed for householder appeals.

Partial certificates and amended descriptions

An authority can issue a certificate in terms different from those applied for, and this is appealable too. It happens when the council accepts part of the case: the outbuilding is lawful, the use of it as a separate dwelling is not.

Inspectors also have power to correct the description. A certificate application described too widely invites refusal in full, while a narrower description that matches what the evidence actually proves may be granted. Where the evidence supports a smaller claim, offer the narrower wording in the statement of case rather than defending a description you cannot evidence.

This is where the appeal can be rescued. An appellant who concedes the unsupportable part and concentrates the evidence on the rest usually does better than one who insists on the original description.

Costs risk on a weak evidential case

Costs in planning appeals follow unreasonable behaviour rather than the outcome. On section 195 appeals the specific risk is pursuing a case with no reasonable prospect because the evidence does not exist, or producing evidence so late that the authority has to prepare twice.

The behaviours that attract applications for costs are familiar: an appeal founded on assertion alone, a chronology that contradicts documents already in the council's file, witnesses produced for the first time at the hearing, and refusal to narrow a description that is plainly unsupportable.

Authorities carry risk too. A council that refuses a certificate without identifying what evidence it disputes, or that maintains a refusal after the appellant has answered the point, can face a costs award against it. Ask the council, in writing and early, exactly which elements of the factual case are disputed. The answer either narrows the appeal or builds the costs application.

Preparing before the first application

The best time to assemble this material is years before the certificate is needed. Owners who know a use is approaching the relevant time limit should collect and date the evidence while witnesses are reachable and records still exist.

Enforcement time limits in England moved to ten years for breaches occurring on or after 25 April 2024 under the Levelling-up and Regeneration Act 2023, with earlier breaches keeping the previous periods. That transition makes dating the start of a use more important than it used to be, and makes a contemporaneous record worth keeping.

If you are preparing the first application rather than an appeal, the groundwork is the same, and the note on reading a refusal notice and turning it into a plan covers what to extract from the council's reasoning before you decide whether to appeal or reapply. Where the alternative route is a fresh planning application rather than a certificate, a Planning Statement setting out the planning case is the document that does the work instead, and withdrawing before a refusal is issued is sometimes the cleaner option when the evidence is not yet ready.

And a point worth holding onto: a certificate is the only formal way to confirm that works or a use are lawful. Informal confirmation from an officer, however senior, binds nobody.

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