Carey Olsen advises Stan Brouard on successful Certificate of Lawful Use application

The granting of the CLU by the States of Guernsey's Development & Planning Authority (DPA) is arguably the most significant since the Land Planning and Development (Certificates of Lawful Use) Ordinance, 2019 (2019 Law) came into force, as the law's introduction was largely the result of Stan Brouard having traded for many years as a retail outlet but without the required planning permission for such use.

However, due to the length of time that had passed without enforcement action, the States of Guernsey were unable to do anything to prohibit its use, while at the same time the long-established local business was unable to open a much-wanted ancillary café because its operation as a retail store was 'unofficial' and not legally recognised.

The issue ended up being debated by the States Assembly in October 2016, with deputies agreeing to direct the DPA to find a way to facilitate the opening of the café, the first step of which involved the DPA proposing a new Ordinance to introduce Certificates of Lawful Use – a method of regularising long-standing unlawful use, which has been used in the UK for many years.

The granting of the CLU by the DPA followed an application by Carey Olsen on behalf of Stan Brouard, and saw the law firm submit substantial documentary evidence, which sought to prove its long-held retail use. Under the law, CLUs will only be granted if there is sufficient evidence to prove, on a balance of probabilities, that the unlawful use of land has been continuous for more than 10 years prior to the date of the application or more than four years since the DPA first knew about the change of use.

Stan Brouard managing director Rodney Brouard said: "We are over the moon that this matter has finally been resolved. Whether we continue with our plans for the café is something we'll now have to think about as it's been so many years since we first mooted the idea and much has changed for us as business.

"Having said that, it is reassuring to know that a mechanism is now available to other businesses in the island who might have found themselves in a similar situation to our own."

Carey Olsen senior associate and planning law specialist Rachel Jones, who led the CLU application for Stan Brouard, commented: "Although this was not the first successful Certificate of Lawful Use application relating to the commercial use of property since the introduction of the 2019 Law, it is without the question the most notable. After all, the 2019 Law only came to be enacted in Guernsey because of Stan Brouard's long and successful campaign to be granted the opportunity to build a café at its Landes du Marche premises.

"Without the pressure exerted by the likes of Rodney many years ago we might never have seen the DPA bring forward proposals for CLUs, a change in the law that can have significant benefits for commercial as well as residential property owners."