Lawfulness and applications for a CLEUD

On 13 March 2026 Mr Tim Smith (sitting as a Deputy High Court Judge) handed down a judgment (citation of which was expressly allowed) refusing permission to proceed with a section 288 challenge to a decision of a planning inspector relating to an application for a Certificate of Lawfulness for Existing Use or Development (“CLEUD”).

The Claimant had undertaken works comprising the construction of storage container buildings, hardstanding, and earth bunds. The Claimant’s case was that the works were substantially completed four years prior to the service of an enforcement notice by the local planning authority. However, that enforcement notice was never appealed and came into effect, and its terms were not complied with.

Subsequently, the Claimant applied for a CLEUD seeking to establish the lawfulness based on the earlier four year immunity period being satisfied prior to the enforcement notice.

The local planning authority refused the application, on the basis that it was not satisfied on the evidence that four years had been demonstrated. The Claimant appealed to the Secretary of State.

The Secretary of State’s appointed Inspector dismissed the appeal. Although the Inspector accepted the evidence that the works were substantially completed four years prior to the service of the enforcement notice, he considered that the statutory question under s.191(2)(a) TCPA 1990 required him to determine the application based on the date of the application (s.191(4)). Further, he held that because there was an enforcement notice extant at the time of the application and that it related to the very same development in respect of which the CLEUD application was made, s.191(2)(b) was triggered, meaning the development was not “lawful” at the time of the application.

The Claimant sought to argue that this was wrong, and that the Inspector should have considered whether lawfulness was established with regard to the position prior to the enforcement notice having been served (i.e. by which time the four year period had elapsed), rather than the time of the application (which post-dated the enforcement notice).

The Deputy Judge disagreed, and accepted the arguments for the Defendant Secretary of State. S.191(2)(a)-(b) are to be considered with reference to the time of the application for the CLEUD (even where the application is made on a different basis, as here). Where there is an enforcement notice in force at that time, it does not matter whether the applicant can demonstrate the relevant immunity period. Their remedy is to appeal the enforcement notice, not ignore it then seek a CLEUD later down the line. He also held that the Secretary of State’s position was consistent with the remarks of Holgate J. (as he then was) in R. (Ocado Retail Limited) v Islington London Borough Council [2021] PTSR 1833 at para. 146 that Parliament did not wish an extant enforcement notice to be negated by the subsequent application of a time limit in s.171B to something which contravened the requirements of that notice.

Permission was therefore refused.

The Judgment is available here.

Jonathan Welch of Francis Taylor Building appeared for the Secretary of State, instructed by the Government Legal Department.