Something and nothing

This one is a little bizarre but….an inspector has determined that a certificate of lawfulness cannot be used to certify that a site has no lawful use (DCS Number 200-007-885).

The inspector identified the main issue in the appeal as being whether s191(1)(a) of the Act can be used to confirm that a site has a nil use or whether its scope is limited to certifying that an actual existing use as opposed to no use at all is lawful.

The council conceded that the site had a nil use, the inspector recorded. It accepted that it would be lawful for the site to remain unused and that a nil use could not be enforced against. However, it submitted that s191 could only be used to certify that an existing actual use is lawful. S191(1), the inspector noted, provides that: “if any person wishes to ascertain whether (a) any existing use of buildings or other land is lawful … he may make an application for the purpose to the local planning authority specifying the land and describing the use ….”. Turning first to the wording of the statute, the inspector acknowledged that the relevant subsection of the Act makes reference to “any existing use” and it is broad in its scope. However, she did not consider that the word “any” can be divorced from the words “existing use” in subsection (a). The statute specifically requires there to be an “existing use”, she noted, and it was acknowledged that there was no use which could be attributed to the site. The inspector reasoned that whilst nil use is a well-established concept in planning law and parlance that does not, of itself, mean that it comes within the ambit of “any existing use”. It seemed to her that the term nil use is not an existing use at all but rather a shorthand phrase used to describe the situation where there is no actual use of the land that is lawful. Giving the wording of the statute its ordinary meaning, she considered that it must denote a use that actually exists and not the absence of any use at all.

The appellant complained that it was left with no statutory procedure to establish that the site had no lawful use. The inspector acknowledged that although planning legislation is intended to be a complete code that did at first sight appear to be the case in this particular instance. However, she reasoned that the absence of a statutory mechanism for formally confirming that a site has a nil use is perhaps not surprising given that a nil use simply connotes no use at all and as such would not amount to a use to which the s191(2) tests could sensibly be applied. She also reasoned that for a nil use there would be no need for a certificate of lawfulness to safeguard that state of affairs from enforcement action as there would be no breach of planning control against which such action could be taken.

The inspector concluded that the council’s deemed refusal to grant a certificate of lawful use or development in respect of confirmation that the site had a nil use was well-founded and that the appeal should fail.

Yes, this really happened.

Further information on certificates of lawful use or development can be found at sections 4.301 and 5.136 of DCP Online.