In R (Waters) v Breckland District Council
 EWHC 951 (Admin) the High Court considered whether a
planning authority determining an application for a Certificate of
Lawfulness in relation to buildings constructed without permission
had to consider the lawfulness of their use. The agricultural
operator applied only in respect of the lawfulness of the
operational development not the use, and the Council concluded that
the four year period for accrued immunity applied under Section 171B(1) TCPA 1990.
The claimant agreed that the Council should have taken into
the erection of a building resulting in a material change of
use of land is subject to a ten year – not a four year-time
that buildings which are an integral part of an unauthorised
use may be liable to removal even if the buildings themselves
The High Court dismissed the claim on the basis that the law in
relation to certificates distinguishes between operational
development and use – applicants may specify both in any
application. When dealing with an application for a certificate in
respect of operational development only, planning authorities are
therefore not under any duty to consider the use associated with
them. She distinguished cases dealing with enforcement
against unauthorised changes of use where it is recognised that an
enforcement notice may require buildings to be removed where they
are an integral part of the unauthorised use (Murfitt v
Secretary of State for the Environmental (1980)
40P&CR254). It was relevant that the application for the
certificate was for operational development only (and that the
building/structures were not solely for the purpose of the alleged
industrial intensified use relating to the wider lawful use of the
site). The claimants' application to require the
authority to issue enforcement proceedings also failed.
The key points are that:
Applications to regularise the status of new buildings should
cover both operational development and the relevant use.
Where use is an issue, the ten year immunity period will
Achieving a certificate for buildings does not rule out
subsequent enforcement against the use itself (but is subject to
the application of the principle of fairness and good governance
that may preclude subsequent enforcement action, noted in
Welwyn Hatfield BC v Secretary of State for Communities &
Local Government  UKSC15).
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