CERTIFICATES OF LAWFULNESS & THE MATTER OF EVIDENCE




Statutory Declarations & Certificates of Lawfulness

Planning practitioners often need to seek certificates of lawfulness in order to perfect the planning title to their clients' site.  This means that they need to provide the right evidence in the right format, and this is not without its pitfalls.


In his widely read blog, Martin Goodall once said that the current national advice on the determination of certificates of lawfulness is woeful when compared to that provided in the now revoked Circular 10/97: See ‘Useless new planning guidance’, 7 March 2014 (http://planninglawblog.blogspot.com/2014/03/useless-new-planning-guidance.html).  In particular, he noted that the reference to the important case of F W Gabbitas v SSE and Newham LBC [1985] JPL 630 was removed in the cut & paste (my words) which led to the “National Planning Practice Guidance” (NPPG). This was previously summarised in paragraph 8.15 of Annex 8 to Circular 10/97.

One may wonder whether the Inspector in a recent appeal against the refusal of certificate of lawfulness might have benefited from more fulsome advice on the law. There, the applicant relied on statements which were not statutory declarations.  The Inspector concluded that : “.  . . . as they do not contain the necessary form of wording set out in the Schedule to the Statutory Declarations Act 1835.  Furthermore they appear to have been witnessed by a resident of Wood Cottage rather than a solicitor or commissioner for oaths.  I therefore afford these documents limited weight given that there can be no sanction such as a fine or jail term if found to be untruthful.” Whilst is right to say that (all other things being equal) a statutory declaration might carry more weight than a less formal statement, it is wrong to give those statements limited weight by reference to matters of form only.  Particularly given that he had noted “ .  .a lack of evidence from the Council to contradict the appellant.” That much is clear from a reading of Gabbitas - which was not mentioned in the decision letter.  If an Inspector is concerned about this matter, then he has the option of calling an informal hearing or an inquiry to test the evidence.

The Inspector went on to say that, in any event, the contents of the statements fell short of proving the appellant’s assertions. Speaking from the experience of having vetted many such statements on behalf of LPAs, they are often poorly prepared and miss key evidential points. Applicants might save themselves (and LPAs) a lot of trouble if they engage planning lawyers to prepare this type of statement at the outset.  

Appeal Ref: APP/X1355/X/17/3181946
Wood Cottage, Hesleden Road, Hesleden TS27 4PA

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