Many people assume that every development project requires planning permission. In reality, some forms of development can be carried out without planning permission, while some existing uses and developments may already be lawful even though planning permission was never obtained.
In these situations, a Certificate of Lawfulness can provide formal confirmation of a property’s planning status.
Certificates of Lawfulness are a valuable but often misunderstood part of Scotland’s planning system. They can provide certainty for property owners, purchasers, lenders and developers by establishing whether a use or development is lawful under planning legislation.
Certificates of Lawfulness are sometimes referred to by a variety of names, including Section 150 Certificates, Lawful Use Certificates, Certificates of Existing Use and Certificates of Existing Lawful Use or Development (CLEUDs). While the terminology varies, they all relate to the same statutory process within Scotland’s planning system.
Key Takeaway
A Certificate of Lawfulness (sometimes known as a Section 150 Certificate, Lawful Use Certificate or Certificate of Existing Use) does not grant planning permission. Instead, it provides a formal determination from the Planning Authority confirming whether a proposed use or development would be lawful, or whether an existing use or development is already lawful.
What is a Certificate of Lawfulness?
A Certificate of Lawfulness is a legal determination made by a Planning Authority.
Unlike a planning application, the Planning Authority is not assessing whether a proposal is desirable, acceptable in planning terms or compliant with planning policy.
Instead, the question is simply:
“Is the use or development lawful?”
The Planning Authority must determine the application based on the facts of the case and the relevant legal provisions.
Certificates of Lawfulness are sometimes referred to as Section 150 Certificates, as the power to issue them is contained within Section 150 of the Town and Country Planning (Scotland) Act 1997. While the formal title is a Certificate of Lawfulness, many planning professionals and property owners continue to use the term “Section 150 Certificate”.
There are two main types of Certificate of Lawfulness:
- Certificate of Lawfulness for a Proposed Use or Development
- Certificate of Lawfulness for an Existing Use or Development
Certificate of Lawfulness for a Proposed Use or Development
A Certificate of Lawfulness for a Proposed Use or Development can be used where an applicant wishes to establish whether a proposed activity or development would be lawful before it takes place.
Common examples include:
- Confirming whether planning permission is required
- Establishing whether development benefits from permitted development rights
- Confirming whether a proposed change of use would be lawful
- Clarifying the planning status of a proposed operation
These applications can be particularly useful where there is uncertainty regarding the interpretation of permitted development rights or other planning legislation.
For example, a homeowner may wish to confirm whether a proposed extension can be built under permitted development rights rather than applying for planning permission.
If the Certificate is granted, it provides formal confirmation that the proposal would be lawful if carried out as described in the application.
Certificate of Lawfulness for an Existing Use or Development
A Certificate of Lawfulness for an Existing Use or Development is used to establish that a use, operation or breach of planning control has become lawful through the passage of time.
Applications relating to existing uses and developments are often referred to as applications for a Certificate of Existing Lawful Use or Development (CLEUD). These applications commonly arise where a property owner wishes to demonstrate that a use, building or operation has become lawful through the passage of time and is therefore immune from planning enforcement action.
In Scotland, planning legislation provides time limits beyond which enforcement action can no longer normally be taken.
Examples may include:
- Buildings constructed without planning permission
- Changes of use that occurred without planning permission
- Operational development carried out many years ago
- Long-established uses of land or buildings
The key issue is not whether planning permission should have been obtained, but whether the development or use has become lawful because the relevant enforcement period has expired.
Applications often rely upon documentary evidence demonstrating the relevant use or development has existed continuously for the required period.
Understanding the Time Limits for Lawfulness
Many applications for a Certificate of Lawfulness for an Existing Use or Development rely upon statutory time limits that restrict the ability of a Planning Authority to take enforcement action.
These provisions are often referred to as the “four-year rule” and “ten-year rule”, although the legal position is more complex and depends on the nature of the development or use.
Four-Year Time Limit
The four-year time limit commonly applies to:
- The carrying out of building, engineering, mining or other operational development without planning permission
- The unauthorised change of use of a building to use as a single dwellinghouse
Where the relevant development or use has existed continuously for at least four years and no enforcement action has been taken, it may become lawful.
Examples may include:
- A house constructed without planning permission
- A barn, shed or other building erected without planning permission
- The conversion of a building to a single dwellinghouse without planning permission
Ten-Year Time Limit
The ten-year time limit generally applies to:
- Unauthorised changes of use other than use as a single dwellinghouse
- Breaches of planning conditions
- Other breaches of planning control not covered by the four-year rule
Examples may include:
- The unauthorised use of land for commercial purposes
- The unauthorised use of land for storage
- Failure to comply with conditions attached to a planning permission
- Other long-established land uses
Where the relevant breach has continued for at least ten years without enforcement action, it may become lawful.
Evidence Remains Critical
Simply claiming that a use or development has existed for four or ten years is not enough.
Applicants must provide sufficient evidence to demonstrate, on the balance of probability, that the relevant use or development has existed continuously for the required period.
The Planning Authority will carefully assess the evidence submitted and determine whether the legal test has been satisfied.
Not Every Situation is Straightforward
The application of enforcement time limits can be complex, particularly where:
- Development has occurred in phases
- Uses have changed over time
- Evidence is incomplete
- Enforcement action has previously been taken
- There are disputes regarding the nature or commencement date of the use or development
For this reason, professional advice is often beneficial before submitting an application for a Certificate of Lawfulness.
What Evidence is Required?
The success of many Certificate of Lawfulness applications depends on the quality of evidence provided.
The burden of proof rests with the applicant.
Evidence may include:
- Sworn affidavits or statutory declarations
- Utility bills
- Council tax records
- Electoral register information
- Photographs
- Aerial imagery
- Historic maps
- Business records
- Correspondence
- Building contracts or invoices
The Planning Authority must consider whether the evidence demonstrates, on the balance of probability, that the claimed facts are correct.
The stronger and more comprehensive the evidence, the greater the likelihood of a successful application.
How Does the Application Process Work?
Applications for Certificates of Lawfulness are submitted to the relevant Planning Authority in a similar manner to planning applications.
The application will normally include:
- Application forms
- Location plans
- Site plans
- Supporting drawings where relevant
- A detailed statement explaining the case
- Supporting evidence
The Planning Authority will assess the legal and factual circumstances before determining whether a Certificate should be issued.
Unlike planning applications, planning policy considerations are generally not relevant to the determination.
The decision should be based upon the law and the available evidence rather than planning judgement.
What Happens if the Application is Refused?
A Certificate of Lawfulness application can be refused if the Planning Authority is not satisfied that sufficient evidence has been provided or if it concludes that the use or development is not lawful.
In some cases, applicants may be able to submit additional evidence and make a fresh application.
Alternatively, there may be a right of appeal.
Appeals
Where a Certificate of Lawfulness application is refused, granted only in part, or where the Planning Authority fails to determine the application within the relevant statutory period, applicants may have the right to appeal to Scottish Ministers through the Directorate for Planning and Environmental Appeals (DPEA).
Unlike many applications for planning permission determined under delegated powers, Certificate of Lawfulness applications are not subject to review by a Local Review Body.
The appeal process allows the evidence and legal arguments to be independently considered by a Reporter appointed by Scottish Ministers.
As with the original application, the appeal will focus on legal and evidential matters rather than planning policy considerations. The key question remains whether the use or development is lawful on the basis of the facts and the relevant provisions of planning legislation.
Why Apply for a Certificate of Lawfulness?
A Certificate of Lawfulness can provide valuable certainty and reduce future risks.
Benefits may include:
- Clarifying whether planning permission is required
- Confirming the planning status of a property
- Supporting property sales and purchases
- Assisting mortgage and lending enquiries
- Resolving uncertainty regarding historic development
- Reducing the risk of future planning disputes
In many cases, obtaining a Certificate of Lawfulness can provide reassurance for property owners and prospective purchasers alike.
Common Situations Where a Certificate of Lawfulness May Be Useful
Certificates of Lawfulness are frequently used in situations such as:
- Confirming whether an extension or outbuilding can be constructed under permitted development rights
- Establishing the lawful residential use of a property
- Demonstrating that a long-established business use is lawful
- Supporting the sale or purchase of a property
- Satisfying mortgage lender requirements
- Clarifying the planning status of historic development
- Demonstrating that a development is immune from enforcement action
- Resolving uncertainty where planning records are incomplete or unavailable
In many cases, obtaining a Certificate of Lawfulness can provide certainty for property owners, purchasers, lenders and professional advisers.
Need Advice on a Certificate of Lawfulness?
At Planning.scot, we provide independent chartered town planning advice on Certificates of Lawfulness throughout Scotland.
Whether you are seeking confirmation that a proposed development is lawful, establishing the status of an existing use or assembling evidence to support an application, we can help assess your circumstances, identify the relevant legal tests and prepare a robust submission to the Planning Authority.
You can contact us here.