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Certificate of Lawfulness of existing use of development

A certificate of lawfulness (existing use) is essentially a remedy for when works have been carried out in the past, a change of use has already taken place, or where, a development or use has existed without meeting a planning condition. A certificate of lawfulness allows the planning authority to make a formal decision that the development or use may continue without enforcement action. You should apply for a certificate of lawfulness (existing use) if you want to determine if your existing development is lawful.

As an example, for an existing Short Term Let you could apply for a Certificate of Lawfulness of an Existing Use or Development where:

  1. The property is being used for short term letting, is not in Control Area, and you consider there has been no material change of use; OR
  2. The property has been in use as a short term let for more than 10 years and no enforcement action has been taken against the change of use in that time

The onus of proof in an application of this nature rests with the applicant and sufficient evidence needs to be provided in the application to satisfy the Planning Authority, on balance of probability, that the use, operation or activity, is lawful.

In the second example, the applicant would need to submit evidence to demonstrate that the change of use occurred more than 10 years prior to submitting the application, that the use has continued without interruption for at least 10 years; and that the use has remained consistent during those 10 years.

Examples of evidence to be submitted includes:

  • Extracts from business accounts; receipts for guests staying at the property; advertisements of business; membership of tourism agencies; commercial bills/services; affidavits; information from suppliers.

Submit an application via eplanning.scot

Information to be provided with your application - extract from ePlanning guidance

  • You must provide a location plan to identify clearly the site the application relates to. This should be at a scale of 1:1250 or 1:2500 (or larger) and should show the position of the site in relation to at least two named roads and surrounding buildings. The site must be edged clearly with a red line.
  • You must state the date on which the use, work or other matter began or, in the case of work carried out without planning permission, the date on which the work was almost finished.
  • You must say what the building or land is used for, using the use classifications.
  • You must provide enough details of the relevant planning permission to allow the planning authority to identify it.
  • The questions on the form ask you to confirm a number of matters and you must answer all questions. You must also provide extra information and documents to support your application.
  • You must explain in your own words why you feel a certificate of lawfulness should be granted. You must provide evidence to show the planning authority that a certificate should be issued. The evidence you provide needs to be clear and convincing.
  • If some questions of fact are involved, the planning authority may accept statements from people who have a direct knowledge of those facts. It is normal to ask for statements in the form of an affidavit and you should ask a solicitor or planning agent for advice on this. In some cases, the planning authority may accept letters or unsworn statements as evidence. They may also take account of further evidence such as photographs, invoices or documents showing the length of time a use has taken place or when the building work or other work was finished.
  • You must provide a statement setting out your interest in the land and the name and address of any other person who has an interest in the land (you must say whether you have told this person about your application).
  • If your application specifies two or more uses, types of work or other matters, the plan you provide with your application should show which part of the land each use, work or matter relates to.
  • You must pay any fee which is due under the Fee Regulations.

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