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Circular 4/1999

ANNEX D

CERTIFICATES OF LAWFUL USE OR DEVELOPMENT

Provisions

• Sections 150-153 of the 1997 Act define the concept of 'lawfulness'. They also set out the provisions for certifying the lawfulness of proposed or existing operations, uses or activities in, on, over or under land, by applying to the planning authority for a Certificate of Lawful Use or Development (CLUD).

Purpose Of Certificates of Lawful Use or Development

• The procedure provides a single coherent mechanism for establishing the planning status of land; ie whether an existing or proposed use or development is lawful for planning purposes. It also remedies deficiencies in the scope and operation of the replaced procedures.
• In addition, the procedure provides a mechanism for obtaining from the planning authority (or the Secretary of State on appeal) a statutory document certifying the lawfulness, for planning purposes, of existing operational development or use as a single dwellinghouse.

What Is Lawfulness?

• Section 150(2) provides that, for the purposes of the Act, uses of land and operations are lawful at any time if no enforcement action may then be taken in respect of them, whether because they did not involve development or require planning permission, or because the time for enforcement action against them has expired, or for any other reason; and they do not contravene any of the requirements of any enforcement notice then in force. Section 150(3) makes similar provision in respect of any matter constituting a failure to comply with a condition or limitation subject to which planning permission was granted. The combined effect of these provisions is that the existing concept of development, or an activity on land in breach of condition, being "unlawful but immune from enforcement action" ceased to exist with effect from 25 September 1992: if the development or activity is then immune from enforcement action it is also lawful for planning purposes. This applies whether or not a certificate has been issued under Sections 150 or 151 of the 1997 Act. There is no compulsion to apply for a Certificate, although the existence of a Certificate or grant of planning permission is a pre-requisite for an application for any of the licences referred to in paragraph 30 below.

Applications For Certificates

• Section 150(1) of the l997 Act enables any one (not just a person with an interest in the land) to apply to the planning authority for a decision whether a specified existing use, operational development, or failure to comply with a planning condition or limitation, which has already been carried out on land, is lawful for planning purposes. Section 151(1) makes similar provision for establishing whether a proposed use or operational development would be lawful for planning purposes.
• An applicant will not be able to require the planning authority to reply to general questions such as 'what is, or would be, the lawful use of, or operational development on, this parcel of land?'. A reasonably precise description of the use, operation or other activity concerned will have to be included in the application. The requirements are prescribed in the GDPO, as amended.
• Applications must be made in writing. Model application forms, which planning authorities may like to use, are reproduced at Annexes 4 & 5 to PAN 54 on enforcement.

Fees For Applications

• Each application lodged with a planning authority must be accompanied by the appropriate fee as prescribed in Regulation 12 of the Town and Country Planning (Fees for Applications and Deemed Applications) (Scotland) Regulations 1997. Broadly, the fees are linked to the national fee scale as either the equivalent, or half the equivalent, fee which would be payable in respect of a planning application for the same matter, as follows:-

a. applications under Section 150(1)(a) and/or (b): the amount that would be payable in respect of an application for planning permission to institute the use or carry out the operations specified in the application;

b. applications under Section 150(1)(c): £95; and

c. applications under Section 151: half the amount that would be payable in respect of an application for planning permission to institute the use or carry out the operations specified in the application.

There are certain exceptions, exemptions and maximum charges prescribed in the Fees Regulations, but fees are payable in respect of applications regardless of the fact that the subject matter of the application may prove to be lawful for any reason (such as being, or having been, "permitted development" under the GPDO). The main exceptions, exemptions and concessions are as follows:-

a. where a use specified in an application under Section 150(1)(a) is use as one or more separate dwellinghouses, the fee payable in respect of each dwellinghouse is £190 subject to a maximum of £4,600;

b. in any other case where a use specified in an application under Section 150(1)(a) is 'established', the fee payable is half the amount that would otherwise be payable;

c. where an application is made under Section 150(1)(a) and/or (b) and under Section 150(1)(c), the fee payable is the sum of the fees that would have been payable if there had been an application under Section 150(1)(a) and/or (b) and a separate application under Section 150(1)(c);

d. there are exemptions in respect of certain applications relating to developments for disabled people and for certain applications made following the refusal or withdrawal of an earlier application; and

e. there are other exceptions and concessions in respect of applications made by or on behalf of a community council and applications which straddle planning authority administrative boundaries.

• It should also be noted that fee levels will be subject to periodic review and the specific sums mentioned above are, therefore, subject to periodic alteration. The fee due in respect of an application will be refunded if the application is rejected as invalid. SODD Circular 1/1997 applies equally to fees for applications for certificates, including how they are to be calculated and paid, as to planning application fees. The GDPO provides for applications to be made to the determining authority and there is no provision for misdirected applications (ie those sent to the wrong authority) to be referred to the correct authority. A misdirected application would be invalidly made and the fee would therefore be required to be refunded when the application was returned to the applicant.

Determination Of Applications

• By virtue of Section 152(6) of the 1997 Act, the GDPO has been amended to provide that applications (and decisions) are to be entered in the planning register by the planning authority, in accordance with Section 36 of that Act.
• The GDPO prescribes that planning authorities must acknowledge applications as soon as reasonably practicable after the application and appropriate fee have been received. If they later consider the application to be invalid, they must notify the applicant of that fact as soon as practicable.
• When an application has been made under Section 150, then Section 150(4) provides that if the planning authority are provided with information satisfying them of the lawfulness, at the time of the application, of the use, operations or other matter described in the application, or that description as modified by the planning authority or a description substituted by them (see paragraph 34 below), they must issue a certificate to that effect; in any other case they must refuse the application.
• Similarly, Section 151(2) provides that, when an application has been made under Section 151, if the planning authority are provided with information satisfying them that the proposed use or operations described in the application would be lawful, if instituted or begun at the time of the application, they must issue a certificate to that effect; in any other case they must refuse the application.
• The GDPO, as amended, requires planning authorities to give written notice of their decision to the applicant within 2 months of the date of receipt of the application and any fee required (or such longer period as may be agreed in writing by the applicant).
• In coming to their decision on an application under Section 150 the planning authority will have to address the question whether, on the facts of the case and the planning law applicable to the site, the specified use, operational development or failure to comply with a condition is lawful. Similarly, for an application under Section 151, the planning authority will need to consider whether the proposed use or operations would be lawful if instituted or carried out in accordance with the term of the detailed description of the proposal: in doing so, they will need to consider not only whether the proposal would involve development requiring planning permission, but also whether it would involve a breach of any existing condition or limitation imposed on a grant of planning permission which has been acted upon and which therefore affects what can be done on the land. Where a proposed change of use is involved, it will be necessary for the present, or last, use of the land to be described; and, where the lawfulness of that use is being relied upon to pave the way to implementing the proposed use, the planning authority will need to be satisfied as to the lawfulness of the existing use (having regard to the criteria, in paragraph 5 above, for deciding what is lawful).
• The GDPO provides that the planning authority may, by notice in writing, require an applicant to provide such further information as they may specify in order to enable them to deal with the application. Planning authorities are reminded, however, that neither the origin nor identity of applicants (except to the extent that they may or may not be able personally to confirm the accuracy of any claim being made about the history of a parcel of land), nor the planning merits of the use, operation or activity, have any relevance to the consideration of the purely legal issues which are involved in determining an application.

The Onus Of Proof In An Application

• The onus of proof in an application is firmly on the applicant. While planning authorities should always co-operate with an applicant who is seeking information they may hold on the planning status of land, by making records readily available, they need not go to great lengths to show that the use, operations, or failure to comply with a condition, specified in the application, is unlawful. Although planning authorities are statutorily required to maintain the planning register, this is not a complete record of the planning status of all land. In many cases, the applicants will be best placed to produce information about the present and any previous activities taking place on the land, including a copy of any planning permission they may hold. Some information, especially about the history of any unauthorised activity on the land, will be peculiarly within the applicants' knowledge.
• As the matters to be determined are solely matters of evidential fact and law, with the onus of proof on the applicant, there is no requirement for an application to be accompanied by a Section 34 or 35-type certificate. Anyone, other than the applicants, with an interest in the land, or the neighbours of a site, may have evidence which is relevant to that application. If that evidence supports the application, it is up to the applicants to produce it, if they are able to do so. If it might tend to disprove the case, the applicants risk prosecution, and revocation of any certificate granted, if they withhold it (see paragraphs 36 and 38 below). Nevertheless, if the planning authority consider that a person with an interest in the land or a neighbour may have relevant information, it is open to them to canvass that information, if they wish, before determining the application.
• In appeals to the Secretary of State which raise 'legal issues' (for example, enforcement, and, prior to 1991, Established Use Certificate appeals), where the onus of proof is on the appellant, the Courts have held that the relevant test of the evidence on such matters is 'the balance of probability'. As this test will accordingly be applied by the Secretary of State in any appeal against their decisions, planning authorities should not refuse a certificate because the applicant has failed to discharge the stricter, criminal burden of proof 'beyond reasonable doubt'. Moreover, the applicant's own evidence does not need to be corroborated by independent evidence in order to be accepted. If the planning authority have no evidence of their own, or from others, to contradict or otherwise make the applicant's version of events less than probable, there is no good reason to refuse the application, provided the applicant's evidence alone is sufficiently precise and unambiguous to justify the grant of a certificate 'on the balance of probability'.
• The fact that a certificate may be refused because the onus of proof is not discharged by the applicant does not preclude the submission of a further application if better evidence subsequently comes to light. A refusal to issue a certificate is therefore not necessarily conclusive that something is not lawful: it may merely mean that insufficient evidence has been presented to satisfy the planning authority that the use, operation or activity is lawful. For this reason, no useful purpose will be served by applying for a certificate where the applicant's interest is solely to disprove the lawfulness of an existing operation, use or activity, because the applicant objects to it. Unless the planning authority had sufficient evidence that the operation, use or activity was lawful, such an application would be refused as 'not proven on present evidence', and the planning authority would retain the application fee.

The Content Of Certificates Under Section 150

• Section 150(5) provides for certain matters a certificate must contain. The certificate is particularly valuable because its effect is similar to a grant of planning permission. It is therefore vital that the certificate indicates precisely the area of land to which it relates normally by means of an attached, scaled site plan); precise details of what use, operations or failure to comply with a condition are found to be lawful, why, and when. For example, if a certificate is for a use of land - unless the use falls within one of the 'use classes' specified in the Schedule to the Town and Country Planning (Use Classes) (Scotland) Order ('the UCO') current at the time, or the certificate is granted on the basis that a specific grant of planning permission confers lawfulness on the use - it will be important for it to state the limits of the use at a particular date. These details will not be equivalent to a planning condition or limitation. They will be a yardstick, specifying what was lawful at a particular date, against which any subsequent change may be measured. If the use subsequently intensifies or changes in some way to the point where a "material" change of use takes place, the planning authority may then take enforcement action against that subsequent breach of planning control (which a less precise certificate might well preclude). A Certificate of Lawful Use or Development should usually be more precisely drafted than the former Established Use Certificate.
• However, by virtue of Section 26(2)(f) of the 1997 Act, it is not development to change from one use to another in a 'use class', or to intensify such a use provided it remains within the same class. It is therefore important to specify the 'use class' in any certificate granted in such a case, and to "describe" the operation, use or activity (as Section 150(5)(b) provides). A description of something states its characteristics and provides a more or less complete definition: it is not simply a title or label. A description might include, for example, the number and type or size of caravans on a caravan site which is found to be lawful at the application date; the number and size of lorries based at a haulage yard, and the activities lawfully carried on as part of that particular 'sui generis' use (assuming the yard or depot in question is not one that can be regarded as a distribution centre falling within Class 6 of the UCO); the range of activities carried on at a particular builder's yard (another 'sui generis' use); the number and category of vehicles displayed for sale on a site; and other details such as the hours of work, the seasonal nature of any use (specifying the months it operates), the machinery or equipment used, the height above ground-level to which goods or materials have been stored, or other method of operation of a use.
• Paragraph 22 above explains, in principle, why this level of detail may need to be provided, first by the applicant when applying for the certificate, and then in the certificate itself. Some further illustration may be helpful to planning authorities and prospective applicants.
• One obvious example requiring such detail would be the case of an unauthorised building substantially completed more than 4 years ago and in respect of which a certificate is sought. The application and any certificate granted will need to identity that building (which may be on a site containing a number of similar buildings), with sufficient precision to ensure that it cannot be confused with any other building on the site, either at the application date, or in the future. This will minimise the possibility of its being confused with any new building which might subsequently replace it in the same position on the site. Identification will usually best be in the form of a plan or plans and whatever additional descriptive material is necessary to describe the building's siting, design and appearance. Where it is necessary to identify the building precisely, it is suggested that the plans should be a scaled site plan and drawings of the building's elevations.
• Equally, a certificate for a vehicle park, used in the past only for parking motor cars, should specify that limitation (assuming the certificate derives from 10 years of unauthorised use rather than from a planning permission). Then, if the land is subsequently used for parking articulated lorries or coaches, which might have such an impact, in planning terms, on the surrounding area, that a 'material' change in the character of the use occurs, the planning authority would be able to control it.
• It is generally accepted that any 'sui generis' use which is not in a 'use class' in the UCO, such as a builder's yard or many haulage depots, can be 'materially' different in planning terms from another use which nevertheless falls within the same general description. In other words, there can be a "material" change of use requiring planning permission between one builder's yard use, or use as a haulage depot, and another. A change of ownership or occupation of land does not, in itself, constitute a material change of use. However, where a builder's yard has only in the past been used by a small jobbing builder as a base for his office, and one or two vehicles and storing building materials, unless that detail and level of use are specified in the certificate (or by condition or limitation in a permission on which the certificate is based), the planning authority will have no future control over any significant intensification of the use, perhaps by a building contractor who introduces to the land the storage of heavy plant and machinery, the mixing of concrete and the manufacture of joinery items. Such an intensification, though arguably constituting a "material" change of use from the former use, could not be controlled if the site benefited from a certificate which merely stated that it was lawfully a builder's yard, without qualification.
• Finally, where a certificate is granted for one use on a 'planning unit' which is in mixed or composite use, that situation may also need to be reflected in the certificate. Failure to do so may result in a loss of control over any subsequent intensification of the certificated use on to the whole of the land comprising the unit, to the exclusion of the other uses formerly taking place on some of the land.

The Effect Of Certificates Under Section 150

• Section 150(6) provides that the lawfulness of any matter for which a certificate is in force under this section shall be conclusively presumed, because once a certificate is issued it is important that nobody should be able to "look behind" it to question whether what appears on its face is valid. The statement in a certificate of what is lawful relates only to the state of affairs at the date of the application. As explained above, if, after a certificate has been issued, development is carried out on the land in breach of planning control, the planning authority should be able to take whatever enforcement action may be expedient.
• Section 150(7) deals with 3 cases in which it is necessary to obtain a grant of planning permission before a licence can be granted in accordance with the licensing regimes enacted in the legislation. These cases are applications for:

a. a caravan site licence under Section 3 of the Caravan Sites and Control of Development Act 1960;

b. a waste disposal licence under Section 5 of the Control of Pollution Act 1974; and,

c. when Section 5 of the 1974 Act is repealed, a waste management licence under Section 36 of the Environmental Protection Act 1990.

If a certificate is issued under Section 150 in respect of any use for which such a licence is also required, it follows that no planning enforcement action can be taken against the use. However, planning permission (or, in the case of a waste management licence, an Established Use Certificate) is necessary in each case before application can be made for the relevant licence. Section 150(7) accordingly provides that the grant of a certificate in these cases should be equivalent to a grant of planning permission. Although the practical consequence is that the planning merits of the matter may never have been considered, and there has been no opportunity to impose planning conditions on the development, it will still be open to the licensing authority to impose conditions on the licence which are relevant to the purpose for which the licensing control exists; and, except in the case of a caravan site, the licensing authority may still reject the licence application in certain circumstances.

The Content Of Certificates Under Section 151

• Section 151(3) is the counterpart, for proposed uses or operations, of Section 150(5). It provides that a certificate granted under Section 151 shall specify the land to which it relates; describe the use or operations in question (where appropriate, identifying a use by reference to the relevant 'use class'); give the reason why carrying out the proposal would be lawful; and specify the date of the application. Although this certificate would not be the equivalent, in law, of a grant of planning permission for proposed development, it will indicate that, unless any relevant factor has changed since the application date specified in the certificate, it would be lawful to proceed with the proposal. It is therefore vital to ensure that the terms of the certificate are precise and there is no room for doubt about what is lawful at a particular date.

The Effect Of Certificates Under Section 151

• Section 151(4) provides that the lawfulness of any use or operations for which a certificate is in force under this section shall be conclusively presumed unless there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness.
• Obvious examples of such a change would be a direction under Article 4 of the GPDO taking away the particular 'permitted development' right in Schedule 1 to the GPDO on which the proposal would have relief for its lawfulness; or revocation of the planning permission on which the proposal relies; or a statutory amendment to the 'permitted development' rights in the GPDO itself. However, provided the circumstances and the statutory provisions remain unchanged between the application date specified in the certificate and the date the proposed use is instituted or the operations are begun, the change of use remains lawful, or the operations are lawful, and may lawfully be completed, as the case may be.

The Content Of Certificates: General Supplementary Provisions

• Section 152(4) provides for a Certificate of Lawful Use or Development to be issued in respect of all or part of the land specified in the application and, where the application specifies 2 or more matters, in respect of all of them or one or more of them; and to be in such form as may be prescribed by a development order. This is intended, along with the planning authority's power under Section 150(4) to issue a certificate of a different description from that applied for, to give planning authorities a reasonable degree of flexibility in cases where it would be helpful to the applicants to receive a certificate in terms which may differ slightly from the terms of their application, as an alternative to refusing a certificate altogether. For example, a lesser area of land may be included. Annex 6 to PAN 54 on enforcement gives an example of the prescribed form of certificate. The prescribed form explains its effect. Where necessary, planning authorities should include on the form, for each type of certificate, the degree of descriptive detail mentioned above. Where appropriate, this could be supplemented by including a cross-reference to the terms of the application and accompanying plans or drawings, for example by issuing a certificate in respect of a use of land "as more particularly described in" or "in accordance with" the terms of the submitted application. Alternatively, the description in the Certificate might be more detailed than in the application.
• Section 152(5) provides that a certificate granted under Sections 150 or 151 shall not affect any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted, unless that matter is described in the certificate. This means that, in any case where a certificate is granted on the basis that there is an extant planning permission for the development, the fact that the certificate certifies that development to be lawful, does not mean that it can lawfully take place without complying with any conditions or limitations imposed on that grant of permission, except to any extent specifically described in the certificate. Unspecified existing or future breaches will not be covered by the certificate. For example, if the planning permission was subject to a number of conditions, a certificate granted in respect of a breach of one of them could not be regarded as legitimising breaches of any of the others. Moreover, it is possible to breach some individual conditions in different ways; it is the matter constituting the failure to comply with the condition, rather than the condition itself, which the certificate should, where appropriate, describe. If a condition prohibiting open storage on a site has been breached for more than 10 years by storing materials in the open on a particular part of the site, the certificate should described the extent of the breach which has become lawful. Such a certificate would not then cover a future breach of the condition involving open storage on a different part of the site from that described in the certificate.

Revocation Of Certificates

• Sections 152(7) and (8) provide that a planning authority may revoke a certificate granted under Sections 150 or 151 if, on the application, a statement was made, or document used, which was false in a material particular; or any material information was withheld; and that the development order may provide for regulating the manner in which a certificate may be revoked and the notice to be given of such revocation.
• These powers are available for use where it becomes clear that a certificate has been erroneously based on a false statement, or that relevant information was withheld from the planning authority when they considered the application. As it will clearly be a serious matter for the applicant to have a certificate revoked, the GDPO provides a statutory procedure which planning authorities should follow in giving notice of revocation and carrying out the revocation. No compensation is payable in the event of revocation. The decision whether to revoke a certificate is entirely for the planning authority, even when the certificate has been granted by the Secretary of State. If they propose to revoke a certificate, they must give notice of their proposal, thus providing an opportunity for the recipients of advance notice to make representations before the planning authority make their decision. Although the circumstances in which a certificate may be revoked are statutorily limited, by Section 152(7), to those explained in paragraph 36above, revocation does not necessarily depend on the commission of an offence, as described in paragraph 38 below, because the offence provisions also require evidence that somebody has acted knowingly, recklessly or with intent to deceive. Although there is no right of appeal to the Secretary of State against the planning authority's decision to revoke a certificate the validity of the decision may be challenged by application to the Court of Session for judicial review. Moreover, there is nothing to prevent a further certificate application being made, following revocation of an earlier certificate. If a planning authority behave 'unreasonably' in revoking a certificate and refusing to grant a fresh certificate upon re-application, they may well be at risk of a successful application for expenses against them in the event of a subsequent certificate appeal to the Secretary of State, under Section 154 (see paragraphs 40 to 45 below).

Offences

• Section 153 creates an offence, which can be prosecuted summarily or on indictment, if any person, for the purpose of procuring a particular decision on an application (whether by himself or another) for a certificate under Sections 150 or 151, knowingly or recklessly makes a statement which is false or misleading in a material particular; or, with intent to deceive, uses any document which is false or misleading in a material particular, or withholds any material information. On summary conviction in the Sheriff Court, the penalty is a fine not exceeding the statutory maximum, currently £5,000. On conviction on indictment, the convicted person is liable to imprisonment for a term not exceeding 2 years, or to a fine, or both.
• In terms of Section 136 of the Criminal Procedure (Scotland) Act 1995, the prosecution of such an offence by summary procedure must be brought within 6 months of the commission of the offence.

Right Of Appeal To Secretary of State

• Section 154 makes provision for the right to appeal to the Secretary of State, following an unsuccessful application under Section 150 or 151. Only the applicant may appeal.

An appeal may be made against the planning authority's refusal or partial refusal to issue a certificate or where a planning authority has failed to determine an application within the statutory period. Planning authorities should therefore endeavour to determine applications timeously

Appeal forms are available, on request, from the Scottish Office Inquiry Reporters' Unit (SOIRU), 2 Greenside Lane, Edinburgh EH1 3AG.

Unlike the former Established Use Certificate appeal provisions, the appeal provisions contain no 'deemed application' for planning permission or power for the Secretary of State to grant planning permission in respect of any matter for which a certificate is not granted. This means that the certificate procedures involve no consideration of the planning merits of the matter in question. Planning authorities should be aware that acting in this way could render them open to an award of costs on appeal . It is nevertheless open to applicants to apply for planning permission in the normal way, without prejudice to their application for a certificate, and to appeal to the Secretary of State against any adverse decision, or failure to give a decision, at the same time as they submit any certificate appeal under Section 154. As explained in paragraph 12 of the Annex to SODD Circular 1/1997, in the event that the planning authority consider that planning permission is not required, they should return the planning application fee (though not any certificate application fee), explaining to the applicant that no fee was properly payable. However, although refunds of fees paid for applications which are found to be invalid may be made at any stage, the Fees Regulations do not provide for the refund of correct fees paid for valid applications for planning permission once these are accepted (and an application for planning permission would not be invalidated by the issue of a certificate).

In any certificate appeal where evidence as to the facts is at issue or in dispute, a public local inquiry will normally be held. This is so that evidence can be taken on oath, if necessary, and witnesses cross-examined about the precise nature and extent of the previous, existing or proposed uses of land, and, where relevant, its planning history. However, it is envisaged that, where the appeal simply involves the interpretation of agreed facts and statute or judicial authority, the written representations procedure will suffice. And, since planning merits will not be at issue unless a contemporaneous planning appeal for the same matter is being considered simultaneously, it will often be unnecessary to arrange for an officer of SOIRU to inspect the site before the appeal is determined.

The Costs Involved In Making An Appeal

• The parties to a certificate appeal are normally expected to meet their own expenses. Costs do not automatically 'follow the event' of the appeal and are only awarded, on an application, against a party who has behaved 'unreasonably' in the appeal process. SODD Circular 6/1990 gives guidance on the policy and procedures for awarding costs to parties in an appeal. As with enforcement notice appeals, an award of costs may be made in a certificate appear whether the appeal has proceeded by written representations or by public local inquiry.

Appeal To The Court of Session

• The Secretary of State's decision on a certificate appeal may be challenged under Section 239 of the 1997 Act.

Secretary of State's Power Under Section 133(1)(d) To Issue A Certificate Under Section 150

Section 133 of the 1997 Act gives the Secretary of State certain discretionary powers on the determination of an enforcement notice appeal. Section 133(1)(d), enables him to determine whether, on the date the appeal was made, any existing use of the land was lawful, any operations which had been carried out were lawful, or any matter constituting a failure to comply with a condition or limitation subject to which planning permission was granted was lawful; and, if so, to issue a certificate under Section 150. This discretionary power could be exercised where the enforcement notice appeal succeeds on ground (d) in Section 130(1) of the 1997 Act. However, a fee is payable to the planning authority for a certificate application, and Regulation 11(1)(d) of the 1997 Regulations at present provides that, with the single exception of cases relating to use of land as a caravan site, the 'deemed application' fee has to be refunded where the enforcement notice appeal succeeds on grounds (b) to (e) in Section 130(1). The consequence of exercising this power without an amendment to Regulation 11(1)(d) would have been that a certificate could have been obtained without the payment of any fee. Accordingly, Regulation 11(1)(d) provides that the 'deemed application' fee shall not be refunded where a certificate is granted under Section 132(3)(b).

Nevertheless, it is anticipated that this power will only be exercised in exceptional circumstances. It will not be exercised where the appellant specifically requests that his 'deemed application' fee be refunded in the event of his appeal succeeding on grounds (b) to (e). Many appellants who have paid the 'deemed application fee' both to the Secretary of State and to the planning authority, in respect of such an application arising on an appeal against an enforcement notice issued on or after 31 December 1991, may prefer to have both fees refunded in these circumstances and then pay a single fee to the planning authority for a subsequent application for a certificate. Or, they may decide that, once their enforcement appeal has succeeded, they do not need a certificate.

Thus a certificate will not be issued, under Section 132(3)(b), unless the appellant has specifically so requested, in the event of his appeal succeeding on grounds (c) or (d), before the date on which the appeal is determined. Even then, the Secretary of State or Inquiry Reporter may still decline to exercise this discretionary power. The certification procedure is intended to be administered primarily by planning authorities. They will usually be best placed to identify all the relevant details about a use, operation or activity which may need to be specified in a certificate, as explained in paragraphs 22 to 25, 31 and 34 to 35 above. These details, including suitable plans to attach to the certificate, may not be readily available to the Secretary of State or an Inquiry Reporter, even at the decision stage of an enforcement notice appeal. In most circumstances where an enforcement appeal succeeds on grounds (c) or (d), the notice will be quashed, the "deemed application fee" refunded by the Secretary of State (and, where applicable, by the planning authority) and the appellant advised that it is open to him to apply to the planning authority for a certificate under Section 150.

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