20 June 2019

Certificates of Lawful Use mark a major revision to Guernsey's planning laws

The introduction of a Certificate of Lawful Use (CLU) in Guernsey represents a significant shake-up of the island's planning laws and one that could benefit both residential and commercial property owners going forward, according to Carey Olsen senior associate and planning law specialist Rachel Jones.

Under the Land Planning and Development (Certificates of Lawful Use) Ordinance, 2019, an owner of land can now apply to the Development & Planning Authority (DPA) for it to issue a CLU that will enable the property owner to regularise a long-standing unlawful use of land and certify that the existing use of the land is now lawful for planning purposes.

Successful CLU applications will need to be accompanied by sufficient information and 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.

Rachel said not only would the issuing of a CLU protect land owners from any future enforcement action but could also deliver significant additional benefits.

"Garden, leisure and furniture store Stan Brouard Limited is a prime example. It has been trading as a retail outlet for many years but without the required planning permission for such use," said Rachel.

"However, if Stan Brouard was to apply and then be issued with a CLU – as would be expected based upon its history – then it would certify the store's existing retail use as being its lawful use and allow the ancillary development of a much campaigned-for café.

"Similarly, on a residential level, a householder who obtains a CLU after unlawfully using agricultural land as garden land continuously for more than 10 years could benefit from householder 'permitted development' rights and remove the requirement for planning permission for certain improvements, including the erection of an extension, shed or garage and installation of a swimming pool (subject to certain criteria being met). A CLU may also be beneficial when obtaining an Immunity Certificate (IC). An IC is applied for routinely by prospective purchasers to confirm the lawful planning use of property and it will not be issued (without adverse remarks) otherwise."

The DPA has published detailed guidance on the process for obtaining a CLU, which is available to view here.