Russell-Cooke successfully objects to Certificate of Lawfulness appeal for residential dwelling

The appeal concerned a long-standing caravan use on a parcel of land, where the appellant sought to establish that this use had become lawful and could support the siting of a permanent dwelling without the need for planning permission.

A CLEUD, under section 191 of the Town and Country Planning Act 1990, provides formal confirmation that an existing use or development is lawful. Once granted:

• the use becomes immune from enforcement action; and

• the use remains lawful unless lost through abandonment, a material change or formation of a new planning unit.

Lawfulness typically arises where:

• no planning permission was required (for example, a permitted development right authorised the use); or

• a breach has continued for the relevant immunity period (usually 10 years for a change of use).

he property is a standalone piece of land which is not connected to any house. The appellant has a caravan on the site which they use over the summer and half term holidays.

The land had originally formed a ‘curtilage’ around a residential house (‘curtilage’ meaning the land immediately surrounding a dwelling). The land had a caravan on it and it is agreed between all parties that this caravan was used in connection with the use and enjoyment of the dwelling house whilst they were under the same ownership and connected properties. However, in the 1970s, the house was sold, severing ownership from the piece of land. The appellant’s family remained in ownership of this piece of land and continued to keep a caravan in situ.

The current caravan was initially brought onto the land in 1988 and was used for general enjoyment whilst in the garden of the associated house, and later an upgraded caravan was purchased. Whilst both caravans provided the facilities required for ‘day to day private existence’ this did not equate to a dwelling house.

The appellant applied for a CLEUD to certify:

• use of the land as a self-contained dwelling with residential curtilage; and

• associated operational development, including a caravan, services, gates and outbuildings.

The application was refused by the local planning authority and subsequently appealed.

The commercial driver behind the application was clear: if lawful residential use could be established, the appellant likely intended to replace the caravan with a permanent structure (such as a log cabin), which would otherwise have been unlikely to secure planning permission.

Some key takeaways from the Appeal Decision have been noted below.

1. Was there a material change of use?

   The separation of ownership of the land and the house following the sale of the house in the 1970s did not itself constitute a material change of use and therefore the land would have remained as ‘some sort of private, domestic garden use’.

   Given that the land was previously used as a garden, for the land to have changed use to a ‘self-contained dwelling’ in its own right, it would have required development (“development,” means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land, as set out in section 55 of the 1990 Act).

   No such development took place, and therefore there has been no material change of use. Therefore, this ‘leg’ of the requirements for a change of use to be lawful was not satisfied.

2. Was there 10 years’ continuous residential use?

   Given that the Appellant could not argue a material change of use, the only other way for the land to have changed use lawfully would have been to show that a breach of the land’s use (in using the land in a residential capacity) had been ongoing for 10 years since the sale of the house. Importantly, this breach must have been continuous for 10 years i.e.. the property must actually have been used in a residential capacity in its own right without interruption for this length of time, and this ‘immunity period’ would have had to have started at the time the House was sold off.

   The Appellant provided a family ‘caravan diary’ which helpfully provided evidence for the visits to the property, however, unfortunately for the Appellant, the diary also highlighted the main use of the caravan as a quasi-holiday home, visits to which spanned mainly over the summer period, with some sporadic visits over the half-term holidays. As such, the required 10-year period of continuous use would have refreshed at every occasion where the caravan was not being used, as time stops running when a use is not active (as set out in Islington LBC v Secretary of State for Housing, Communities and Local Government [2019]).

   Interestingly, should the Appellant and his family have occupied the caravan for a continuous period of 10-years, the site may well have been deemed to be used in a residential capacity, however this was not the case and the Planning Inspectorate reached the conclusion that the caravan was not in a continuous residential dwelling use.

   These interruptions to the use of the land in a residential capacity were substantial, for example some years there was evidence of only one visit, whilst in 2019 there were none. This demonstrated occasional and sporadic use with considerable breaks which would have restarted the 10-year time period which is required for a breach of use to become immune. As per Swale v SoS and Lee [2005], the Appellant would have had to affirmatively establish continued use for the whole period of 10 years in order of the use to become lawful. The evidence did not support this.

The Planning Inspectorate concluded that:

• the caravan use had not evolved into a lawful independent residential use; and

• the evidence fell well short of demonstrating 10 years’ continuous residential occupation.

The appeal was therefore dismissed.

This decision highlights several important points for landowners and objectors:

• Intermittent or seasonal occupation is unlikely to establish residential use for CLEUD purposes.

• The planning unit analysis remains central: land does not automatically become a separate dwelling simply because it is occupied independently.

• Documentary evidence (such as diaries) must be carefully assessed — it can undermine as well as support an application.

For neighbours and third parties, this case also demonstrates that:

• well-targeted objections, grounded in legal principles and evidence, can be decisive; and

• engaging at both application and appeal stages can materially influence the outcome.

Russell-Cooke’s planning team regularly advises landowners, developers and objectors on:

• CLEUD applications and appeals;

• evidential strategy and risk assessment; and

• objections to planning applications and enforcement matters.

In light of recent changes to appeal procedures, it is increasingly important to front-load evidence and submissions at application stage, as opportunities to introduce new material on appeal may be limited.

Alex Ground, Partner, and Annabelle Lee, Associate, are members of Russell-Cooke’s real estate, planning and construction team, advising on a broad range of planning and environmental law matters.