When a contravention of planning law continues for some time without the planning authority taking action to prevent it, it may be possible for the person who has committed the breach to apply for a certificate of lawful use (CLU), which will mean the use is acknowledged as being lawful.

Dana McIlwaine, solicitor in our property department at Watson Ramsbottom, looks at a recent case involving an application for a CLU concerned the residential use of boats moored near Kew Bridge.

Local residents formed a company to challenge the local council after it failed to take action against a company which operates moorings and lets boats in that area. The latter had allowed the intensification of residential use of the site, and subsequently applied for the issue of a CLU ‘for the mooring of boats for residential and private leisure purposes’.

The licence issued for use of the site in 1996 said that the site ‘would not be used for residential purposes without the prior approval of the Port of London Authority’. This stipulation was not adhered to and it appears that residential use of boats moored there commenced many years earlier.

When the company that let the moorings applied for permission to construct a new pontoon and moorings, there were multiple objections. It was noted that there had been possible breaches on the limitation on residential use and the planning officer also noted that such use would be not lawful. Planning permission was, however, granted.

Increasing problems for the local homeowners involving the siting of large houseboats occupied for residential use led to increasing antipathy between local residents and the mooring company. The company applied for a CLU in 2016 in respect of the residential use and this was granted in August 2017 on the basis that ‘it has been satisfactorily proven that two moveable boats in residential use have subsisted at the site for a period of at least ten years’. The council formed the view that a mixed use comprising both residential and leisure purposes is lawful within the meaning of Section 191 of the Town and Country Planning Act 1990.

The company representing the local residents applied for a judicial review of the decision, alleging that the issue of the CLU was invalid. For such a claim to be justified, it is necessary to show that the council’s decision was the result of it having misdirected itself, acted irrationally or failed to have regard to relevant considerations, or that there was a procedural irregularity.

In a lengthy judgment, the High Court rejected the claim that the decision should be subject to judicial review.

Says Dana McIlwaine, solicitor in our property department at Watson Ramsbottom,  “When breaches of planning law adversely affect you, it is important to take prompt action to inform the planning authority and force it to take measures to stop the breach. Failing to do so can lead to a CLU being issued that will legalise the use or development which has the adverse effect.”

If you are entering into any significant transaction, especially where property is concerned, contact us for advice. Please call Dana McIlwaine  on 01254 67 22 22 or complete our online enquiry form discuss your concerns with one of our team of expert advisors.