Certificate of Lawfulness of Use or Development
What is a Certificate of Lawfulness of Use or Development?
Provision is made under section 24 of the Town and Country Planning Act 1999 for the issue of a Certificate which states:
- whether an existing use of buildings or land is lawful;
- whether any proposed use of buildings or land would be lawful;
- whether any operations which have been or are to be carried out are lawful; or
- whether any other matter constituting a failure to comply with any condition subject which planning approval was granted, is lawful.
The Act is further supported by Regulations, a copy of which can be viewed by following this link to the library.
Such applications may be made to regularise: use which has been conducted in excess of 10 years; or 4 years for building, development or for use as a private dwelling.
A Certificate is a legal document stating the lawfulness of past, present or future development. If granted by the Department, the Certificate means that enforcement action cannot be carried out against the development referred to in the Certificate. However, the Certificate will not protect from enforcement action by the planning authority if the specified use is then changed 'materially' without a corresponding planning approval.
What information must be provided with the application?
Certificate of Lawfulness of Use or Development applications must be submitted on the appropriate form, which seeks information on:
- whether the application relates to: a use, building operation or a condition not complied with;
- the date that the use (or breach of condition) started, or the date on which the building was substantially complete;
- any use class the applicant considers to be applicable;
- in the case of a breach of condition, details of the relevant application; and
- the reasons the applicant thinks he is entitled to a Certificate.
The application needs to include a location plan showing the site which is the subject of the application and any further information which is considered relevant - this can include elevations and plans and photographs.
Three copies are required of the form, location plan and any other information submitted.
What the applicant needs to prove
It is the responsibility of the person applying for the Certificate to provide sufficient information to demonstrate that a use has continued at the same level of intensity and for the same purpose for a period in excess of ten consecutive years or that the development was undertaken in excess of four years ago. Such evidence can include invoices from tradespersons who carried out the work, rates or utilities bills which demonstrate that a particular person was resident in a property at a particular time, dated photographs of the property, aerial photographs which could illustrate how a site has been used, accounting information which could illustrate that a business has been operational at a certain site or at a certain level of intensity. An affidavit (a written sworn statement of fact voluntarily made under an oath or affirmation administered by a person authorised to do so by law) can be acceptable, however, the forms of evidence listed above are considered more definitive and affidavits should be used as evidence only in the absence of more factual forms of proof.
If the Department has evidence, or reasonable grounds to believe, that the applicant’s claim is not correct, it may refuse to issue a Certificate. It should be noted that Part 4, Article 24 of the 1999 Town and Country Planning Act states that it is an offence to give false or misleading information or to withhold material information with intent to deceive, an offence punishable by prosecution.
Please note that whilst the Department retains power to revoke a certificate, should it determine that insufficient evidence has been provided to support issue of a certificate, there is no appeal against a decision to refuse.