When does the Immunity Clock Start? A Fresh Look at CLEUDs and Time Limits

Appeal Ref: PP/H0520/X/24/3348935

This recent appeal decision has clarified key legal issues surrounding Certificates of Lawfulness of Existing Use or Development (CLEUDs), particularly in relation to time limits and breach of planning conditions.

The appellant applied to Huntingdonshire District Council (the Council) for a CLEUD to confirm the use of an annex as an independent dwellinghouse, despite a condition on the original planning permission that restricted it to ancillary accommodation. Following completion of the property in 1996, it was, from 2001 onwards, rented out separately to a series of non-family tenants who occupied it as a dwelling, separate from the farmhouse. The evidence indicated that this use continued consistently from July 2011 up to and beyond the submission of the CLEUD application in January 2024, with the exception of two periods of vacancy from 30 September - 7 November 2022 and 30 June - 17 July 2023.

The central issue in the appeal was whether the occupation in breach of condition had become lawful due to the passage of time and whether the Council’s refusal to issue a certificate had been well-founded.

The Council cited section 171B(2) of the Town and Country Planning Act 1990 (as amended), arguing the four-year rule applied to the use of a building as a dwellinghouse, a view which was supported by the Court of Appeal decision in First Secretary of State v Arun District Council & Brown [2006] EWCA Civ 1172. However, both parties approached the appeal on the basis that the relevant time period was ten years as set out in s171B(3) of the Act for ‘any other breach of planning control’.

Irrespective of whether the four or ten-year rule applied, the Inspector held the breach had continued uninterrupted for a period sufficiently long enough to acquire immunity from enforcement action. Therefore, occupation in breach of the condition had been lawful when the CLEUD application was submitted. Consequently, the Inspector concluded that the Council’s refusal to grant a CLEUD was not well-founded and that the appeal should succeed. Key insights from the decision are: 

• Commencement of time period: the relevant period begins from the date the breach started, not the ten years immediately before the application is made. In this case, the breach began 24 July 2011, and by 24 July 2021, it had persisted for ten continuous years;
• Requirement for breach to be ongoing at the application date: the Inspector firmly rejected the idea that the breach had to be continuing at the date of the CLEUD application, addressing the concerns raised in Nicholson v SSE & Maldon DC [1998] JPL 553. Instead, the Inspector preferred the more recent and robust reasoning in R (Ocado Retail Ltd) v London Borough of Islington [2021] EWHC 1509, since it was made with the benefit of the earlier decisions of the High Court, and more closely reflects the wording of the legislation. This judgment clarified that once a breach has occurred continuously for ten years, the use becomes lawful, and a subsequent return to compliance does not reverse this;
• Impact of vacancy on continuity: a short vacancy in 2023 did not interrupt the continuous ten-year breach. The Inspector accepted that the use had already accrued immunity and that the breach had materialised into lawfulness.

This appeal decision will be of interest to those submitting and determining CLEUD applications as it demonstrates that immunity from enforcement can still be achieved even if the use is interrupted before the application is submitted; the ten-year clock starts when the breach begins, not immediately prior to the application date; and a brief period of non-use will not necessarily defeat an otherwise continuous breach.

For any queries regarding CLEUD applications, please contact Cathryn Tracey or me.