“If you want to be certain that the existing use of a building is lawful for planning purposes or that your proposal does not require planning permission, you can apply for a 'Lawful Development Certificate' (LDC).
It is not compulsory to have an LDC but there may be times when you need one to confirm that the use, operation or activity named in it is lawful for planning control purposes.”
So says the government’s Planning Portal. It has always been the case that lawful development certificates do not change the status of a development’s lawfulness; they merely seek to confirm that status. But is that even the case now in the light of the Levelling Up and Regeneration Act 2023 (LURA)?
Section 115 of LURA changes (in England) the enforcement time limit for building and operational development and for the change of use to a single dwelling house from four to ten years from completion of the operations/the date of the breach respectively. This was one of the infamous pieces of ‘red meat’ that were included in the Bill in order to satisfy restless Tory councillors. The section has not yet been brought into force, but it appears that when it is, there will be no transitional provisions.
Therefore, if the new law is brought in later this year, it seems that a building that was converted to a single dwelling in 2018 and in respect of which a lawful development certificate was granted in 2022 will be unlawful (and therefore susceptible to enforcement action) until 2028. The same will be the case in respect of building works that were substantially completed in 2018.
Can laws have this retrospective effect in England? Loans and purchases may have been transacted in reliance on the assurance of a lawful development certificate, so potentially there will be parties who are prejudiced. Could the effect of such legislative change be in breach of the European Convention on Human Rights? More mundanely, would it be expedient to bring enforcement proceedings in such situations?
The Court of Appeal was asked similar questions in respect of the Conveyancing and Law of Property Act 1892 which outlawed certain lease provisions, even in existing leases. There the Court commented that as matter of principle an Act of Parliament is not without sufficient reason taken to be retrospective. There was, so to speak, a presumption that it speaks only as to the future. However the Court then warned that “there is no like presumption that an Act is not intended to interfere with existing rights.”
The Court seemed to be saying that Parliament has the ability to make new laws that interfere with existing rights, and in a sense that is what happens all the time with new laws when activities that were once lawful are declared unlawful. Whether this is what Parliament intended when enacting section 115 of the LURA is another thing. People will have expected when buying properties in reliance on such certificates that the certificates would not be removed or quashed – or at least not without appropriate compensation. If that now happens, the value of certain properties may well plummet and litigation could be expected.
Watch this space. The government would be well advised not to bring these provisions into force until some appropriate transitional provisions are also enacted.