08 September 2021

Certificates of Lawful Use: An update on their uptake in the Guernsey residential market

A number of home owners have applied for Certificates of Lawful Use since they were introduced into Guernsey's planning system in May 2019. Here, Carey Olsen planning law specialist Rachel Jones provides an update on their uptake in the residential market.

The effect of a successful application for a Certificate of Lawful Use is to regularise an historic, unlawful change of use of land without having to obtain planning permission. 

An application can be made when the land has been used contrary to its current, lawful planning use continuously for either:

  • four years from the date the Development and Planning Authority (D&PA) first knew about the change in use (if the D&PA is aware of the unlawful use); or
  • 10 years from the date of the change from the lawful use to the current unlawful one.

22 applications have been decided since the regime was introduced. Of these, 17 have led to Certificates being granted (eight for commercial and nine for residential uses). 

Those granted for residential purposes have concerned various different uses:

  • Two have concerned the use of wings of properties.  In each case, the wings were part of the main dwelling house and sufficient evidence was submitted by the applicants to demonstrate they had been occupied as independent residential dwellings continuously for more than 10 years. This meant Certificates could be granted certifying the new lawful use of the wings as independent dwellings.
  • Two have been granted for properties that were self-catering units. These Certificates were granted for two separate sites but together they concerned 17 units.  The Certificates certify the new lawful planning use of each of the 17 units as independent residential dwellings.
  • Two have been granted to regularise the use of land as domestic garden. In each case, the land had been used unlawfully as gardens continuously for the required period of time. 
  • A Certificate has been granted to certify the use of part of a detached building as a single dwelling.  
  • A Certificate has been granted for land that was agricultural land but had been used for the required period of time as a driveway and parking ancillary to a dwelling.
  • A Certificate has also been granted in respect of two dwellings that had been used for the required period of time as single dwellings. 

There is an understandable appetite from property owners to use the Certificate of Lawful Use regime to their advantage to formally regularise an unlawful change of use. The granting of Certificates mean owners may enjoy the existing use of properties free from the concern of enforcement action by the D&PA. The Certificates also offer additional benefits for home owners with any wider flexibility in the planning process attaching to the new certified lawful use being extended to the land. For example, regularisation of a former self-catering cottage as a residential dwelling opens up the prospect of a number of permitted developments that householders can carry out to dwellings without the need for permission, such as certain extensions.

The Certificates will also be beneficial on selling a property when prospective purchasers routinely apply for an Immunity Certificate, which advises the prospective purchaser of the lawful planning use of the property.

It should be noted that in determining an application for a Certificate of Lawful Use, the D&PA require robust evidence to demonstrate, on a balance of probabilities, that the current use of land has been carried on for the required period of time and throughout that time, the use must have been continuous. The onus is on the applicant to submit sufficient evidence to support their application. It is not sufficient to simply provide a letter or statement setting out how the land has been used. Evidence to support the application may include affidavits (legally sworn statements) from the owner and possibly from other people who can corroborate how the land has been used, photographs (if possible dated), historic Digimaps, bills/invoices and any other factual documentary evidence.

 

An original version of this article was first published in Guernsey Property & Construction magazine, September 2021.

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