Are you CLEUD Up?
No, not a spelling mistake - a Certificate of Lawful Existing Use or Development is what you need if you want to prove that your property is legal and doesn't need Planning Permission. It is commonly asked for by solicitors as part of the conveyancing process to ensure the new owner is not caught out. Sadly, it is increasingly being asked for in relation to HMOs and could well be essential for those running 3-4 bed HMO's from before 2011 who will now need to get an HMO licence
How Do You Get A CLEUD?
Article 39 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 sets out the contents of the application for a CLEUD and how it must be submitted. An application needs to describe precisely what is being applied for and the relevant statutorily prescribed fee will be payable.
Unlike an application for planning permission, an application for a CLEUD depends entirely on factual information relating to the history, use or operations carried out on or in the land, making planning merits thus irrelevant to the determination. As a guide, when submitting an application for a CLEUD, the following information will be relevant to support the claim made and to demonstrate that it has been in use or the operations have been situated on the land for the relevant time period:
- Tenancy Agreements (GDPR may lead you to destroy old tenancy agreements after 7 years, but if you have not then don't - you will need them as this is the primary source of confirmation for the Planning team and anything less is regarded with suspicion)
- statutory declarations from applicants, former owners and neighbours;
- council tax or electoral records;
- any relevant invoices or receipts for services relating to the use of the land or the operations carried out;
- photographic evidence which is clearly dated; and/or
- any other factual information and evidence that supports the application.
Once an application for a CLUED is submitted, the local planning authority is statutorily required to determine it within a period of eight weeks, unless that timeframe is extended by agreement in writing with the applicant. Where the local planning authority fails to determine the application in the timeframe given, a right of appeal to the Planning Inspectorate is available to the applicant.
And be prepared – there is a charge of £494.20p for a CLEUD.
Do You Have To Have One?
A solicitor we spoke to said that they cannot force you to get PP or a CLEUD, they can't force you to even produce the evidence of continuous use BUT if you do nothing, they could instigate enforcement action which you would then have to defend and that would entail digging all that evidence out anyway. As we know the CLEUD is a useful thing to have when you come to sell and retaining all the continuous use evidence going back to 2011 gets harder every year.
Why You Should Wait Until You Need One
The CLEUD is only good for the time when it is produced. If an HMO (C4) property went into family (C3) use a day later, that would then be its permitted use. What is to stop a local authority or a purchasing solicitor still asking for proof of continuous use back to the date of the CLEUD? To avoid this, we would favour going down the dual use route in most circumstances. That gives you 10 years to flip between C3 and C4 use and should satisfy a purchasing solicitor. However, one member, JO thought Portsmouth were less demanding of evidence for a CLEUD but that could be just one officer.
We would add that if you are asked to prove 'lawful use' over the past decade (since the Article 4 was introduced) as part of your HMO Licence application next September, you will need to collate the supporting evidence but we would suggest that needs to be submitted in support of your licence application and NOT to the Planning department to get a formal certificate. If the Licencing team cannot satisfy itself that the property has been lawfully occupied as an HMO during the period without you paying nearly £500 to planning then something is not right.