CERTIFICATION OF ESTABLISHED USE (Hansard, 23 October 1968)

§ Mr. Speaker
If it is not too complicated, I suggest that we take with this the Amendment to Lords Amendment No. 25, the three Amendments to Lords Amendment No. 24, and Lords Amendment No. 168.

§ Mr. Graham Page
I do not think that it would be convenient to take the Amendment to Lords Amendment No. 25 with the Amendments to Lords Amendment No. 24. It does not really follow.

§ Mr. Speaker
That is why I suggested it very tentatively. Then we had better group together the three Amendments to Lords Amendment No. 24 and discuss those, because they attempt to change the Clause.
We are now discussing Lords Amendment No. 24. I call on an hon. Member to move the first of the three Amendments to it, and we will discuss with that the other two Amendments.

§ Mr. Graham Page
I beg to move, as an Amendment to the proposed Amendment, in line 14, at end insert: (d) it was begun on a date four years or more before the date on which the application for a certificate under this section is made and it has continued for that period of four years and it is a use which would be a breach of planning control such as is described in paragraphs (a), (b) or (c) of section 15(3) of this Act had the date of the breach been within that period of four years. The new Clause which is represented by Lords Amendment No. 24 is very welcome. At earlier stages of the Bill, we discussed how to get over the difficulty, now that the four-year rule is abolished in many cases, of knowing whether a use had been established in the past when, in the future, one would have to go back so many years.
1422 The new Clause provides the solution by requiring application for a certificate that established use has been acquired.
The new Clause seems to have defects in at least three places. May I refer first to Clause 15(3), which makes certain development unassailable after four years? If the development is building, engineering, mining or other operations, an enforcement notice cannot be served after a period of four years, and the same applies to a change to a single dwelling house. If that occurred more than four years previously, an enforcement notice cannot be served.
It would be very convenient if those facts could be the subject of an established use certificate; of one obtained a certificate to say that the building was erected more than four years ago or the change to a single private dwelling house occurred more than four years ago. It is intended by the first Amendment that it should be possible to obtain an established use certificate relating to the uses mentioned in Clause 15(3) and which becomes unassailable after a period of four years.
I pass to the second Amendment, in line 20, to leave out from the beginning to 'any'. It relates to the proviso to subsection (2) of the new Clause. The proviso reads: Provided that no such application may be made"— that is, an application for an established use certificate— in respect of the use of land as a single dwelling house, or of any use not subsisting at the time of the application. I can see the reason for the last few words of that proviso, that one should not apply for an established use certificate for any use which is not subsisting at the time the application is made. But why should a man be precluded from 1423 obtaining an established use certificate for a dwelling house? Suppose that I built two dwelling houses on one plot. It might be necessary, when disposing of one of those dwelling houses, to satisfy the purchaser that there has been an established use if a planning permission cannot be produced. This may frequently occur with a house built many years ago in the garden of a large house, no planning permission can be produced, and the purchaser wishes to know that the use has been established. If we are setting up machinery for obtaining certificates of established use, let us apply it to the most ordinary case so that it may be really useful to those in practice in the sale and purchase of houses.
The Amendment to line 50 seeks to amend subsection (7) of the new Clause, which says that an established use certificate shall be conclusive when someone is appealing against an enforcement notice. I foresee that there may be an application for an established use certificate relating to a plot of land with two houses on it—the example that I gave just now—and under subsection (3) the local planning authority refuses the established use certificate for one house. That is, it gives a certificate relating to the whole plot, but says that the certificate only gives permission for one house to be built on the plot. Is the applicant to be bound by that as conclusive, if he is then served with an enforcement notice, to pull the other house down?
Another example could arise from subsection (3). There might be an application for an established use certificate relating to a petrol filling station which is also a secondhand car mart. The local planning authority could give the established use certificate for perhaps the petrol filling station and immediately serve an enforcement notice relating to the other use. If subsection (7) remains as it is the unfortunate applicant is bound by the terms of the certificate issued by the local planning authority and cannot argue against it when he comes to deal with the enforcement notice. Therefore, the proposed Amendment to line 50 seeks to make the established use certificate conclusive evidence against the applicant if it grants him everything for which he asks; but, if it grants him only part of his application, it should be binding 1424 against the authority and not against the applicant.
I have dealt with the three Amendments. But, Mr. Speaker, it might be convenient to deal with another part of the Clause not directly dealt with in the Amendments.

§ Mr. Speaker
I cannot prevent the hon. Member from doing so.

§ Mr. Graham Page
I am obliged.
The other complaint which I have against the Clause is that it does not set out completely the machinery. I think, therefore, that it will be necessary for the Minister to make regulations concerning it. I do not see any power directly in the Clause itself for the making of regulations. It may be that regulations can be made under some other Clause, but I should have been happier if the Minister had reserved to himself the right to set out the machinery for applying and issuing the certificate of established use, and then it could be adjusted as one got used to the operation and saw how it was working.

§ Mr. MacColl
Perhaps I can deal, first, with the short practical point made by the hon. Member for Crosby (Mr. Graham Page) at the end of his speech. The machinery for the working of this is to be found in the proposed new Schedule A, that is Lords Amendment No. 168.
I am glad that the hon. Gentleman expressed satisfaction with this rather complicated new Clause introducing the new idea of the certificate. As he said that, I shall not go into such detail and precise description of the Clause as I might otherwise have been tempted to do. I shall deal mainly with the Amendments the hon. Gentleman has proposed.
The main point where the hon. Gentleman and I differ is in the appreciation of the point of having this procedure. The hon. Gentleman, quite rightly quoted Clause 15(3), and referred to cases where the four-year rule still applies. In this case the Bill does not interfere with the existing position. In other words the problem for the conveyancer is the same as it is in the 1962 Act, and there is no need to bring into this Clause any new procedure for dealing with those points.
1425 The purpose of the new Clause to deal with the problems which has been raised in criticism of the abolition of the four-year rule in the case of certain uses is to have some procedure whereby it will be possible for the conveyancer who wants to find out the position of the land to get the certificate and use it as the basis of his work. He will not need to do that in the other cases where the existing rule is kept.
If I put it in this way, it might help the hon. Gentleman to understand the position. The established use certificate must state what use is established. It is not a negative thing which ranges over the whole field of alternatives and says which ones have not been established. The fact that it does not mention a particular use does not mean that it is not inclusive of that use.
The hon. Gentleman asked what happened where there was a partial certificate not covering all the land. In so far as the certificate does not cover part of the house, the developer would be able to test the matter by waiting for an enforcement notice to be served on him. He would then have the right of appeal to the Minister against that notice. In that way he would be able to test whether the decision was right.

§ Mr. James Allason (Hemel Hempstead)
I do not think that the Parliamentary Secretary has explained the proviso. My hon. Friend the Member for Crosby (Mr. Graham Page) went into detail on the question of the single dwellinghouse which is expressly excluded in line 20 of the Lords Amendment. This must be an important point in conveyancing. A summer house or a garage might have been converted into a dwellinghouse; there may never have 1426 been planning permission; the four years being up, it would not any longer be possible for the planning authority to serve an enforcement notice. If there is to be a sale the purchaser wants to know that this is a valid use. I understood the Parliamentary Secretary to say that, if it is impossible to issue a certificate of established used, a developer could wait for an enforcement notice to be served and then appeal to the Minister. This is not much use in the case of a sale. A developer could not go to the local authority and say, "Would you mind serving an enforcement notice so that I can appeal against it and this development can proceed"? Surely it is much better to use the concept of a certificate of existing use in the case of a single dwellinghouse.

§ Mr. MacColl
By leave of the House, Sir. I do not think that the hon. Gentleman has appreciated the point I made. There is no difference from the position as it has always been. That problem has always arisen if there has been use of a single dwellinghouse without planning permission. That has not caused any difficulty. The difficulty arises because in certain other cases the four-year rule is being abandoned. The practical reason is that, in the case of the single dwelling-house, it is comparatively easy to see what is going on. It will rarely be bad planning to turn, say, a large block of flats into family occupation. There is the case of a conversion of a garage into a house. That is not the sort of thing which it is necessary to deal with. That is why it has been excepted and left in as still subject to the old 1962 legal position.

55	(8) If any person, for the purpose of procuring a particular decision on an application (whether by himself or another) for an established use certificate or on an appeal arising out of such an application—
60	(a) knowingly or recklessly makes a statement which is false in a material particular; or
	(b) with intent to deceive, produces, furnishes, sends or otherwise makes use of any document which is false in a material particular; or
65	(c) with intent to deceive, withholds any material information, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding £400 or, on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both."