State of Guernsey

..and how dishonesty flourishes in the dark...

Certificate of Lawful Use

My CLU Debacle: Seeking Reform in Guernsey

ByJames Collings

Feb 17, 2024

A Guernsey Certificate for Lawful Use (CLU) is an official document issued by the local government in Guernsey, an island in the English Channel with a population of 63,000. 

This certificate is a way of confirming that the use of a building, or part of a building, is considered legal under local laws. It’s similar to getting approval that what you’re doing with the property is allowed. For example, if someone has been using a building as a shop, a CLU can confirm that this use is legal. It’s important for ensuring that property uses comply with local regulations and planning laws.

Here are the two pathways by which a CLU can be issued in Guernsey:

  1. Existing Use Prior to Law: If a change of use of land was instituted before the introduction of Part V of the Land Planning and Development (Guernsey) Law, 2005, which came into effect on April 6, 2009, it is considered lawful.
  2. Expiration of Enforcement Period: A use becomes lawful if, after being instituted unlawfully, the time periods for enforcement (4 or 10 years) have expired, meaning no compliance action can be taken.
    • Non-retroactive Application of Time Limits: Once the 4 or 10-year period has passed, the law does not allow for counting backwards from the date of CLU application to challenge the use.
    • Restarting of Period with Change of Use: If the use of the land changes in a way that enforcement action becomes infeasible within the 4 or 10-year period, the period may restart.

Decision Based on Evidence: A decision on issuing a CLU should be made as soon as reasonably possible after application, based on evidence like cadastre records showing use of the property before April 6, 2009.

Standard of Proof: The applicant must prove the lawfulness of the change of use on the balance of probabilities, meaning it is more likely than not to be lawful.

(The 4-year period is when the use is known to the Department, and the 10-year period is when it is not).

I have an office in the basement of my house. At the end of 2019, I had a potential tenant, ready to sign. The lease was with their lawyers. They wanted confirmation that the current office use was permitted. So, I applied for a CLU.

The primary pathway through which a CLU could be obtained was that the property for which the CLU was sought was an office before the planning law came into force.

The Manager of the Cadastre emailed the Director of Planning at the outset to say that the office had been in use as such since at least 2000.

Despite this, Planning officers prolonged the CLU process, purposefully stretching it to the maximum of their eight-week internal deadline by following pathway (2) above, and by trying to count backwards from the date of my application. All they had to do was follow pathway (1), and they knew this from the outset.

The Certificate was finally issued by the DPA 75 days later, despite the fact that they knew I had a tenant waiting, and despite the fact that they knew they had to issue the Certificate from the outset.

Because of their procrastination, I lost my prospective tenant.

I complained. Through sheer perseverance, my case became the only one to fall before an Administrative Review Board (ARB) in the last 5 years.

The ARB asked the Civil Service to have the matter re-reviewed. And they did. They got a reviewer, who sidestepped the terms of reference. The resulting re-review was then able to contradict the facts of the case on fundamental grounds (the review ignored Path (1) above). The review was also contradictory and misattributed dates amongst other defects. Notwithstanding this, the ARB accepted the findings. 

There is no appeal mechanism.

As such, I think that it is germane to the debate on whether to replace ARBs with a Public Services Ombudsperson from outside the Island. This is coming up before the States on Wednesday 21/02/2024. And so I am releasing some of the documents that led to the extraordinary conclusion so that the public and our Deputies can see how the only Admin Review that has concluded in 5 years has been handled.

I hope this makes a compelling case for systemic change. It’s not good enough to revisit the matter in 2026. Guernsey needs the PSO now.

(I have redacted some names but left the names of civil servants in the set of documents. That is because they are public servants, paid by the public purse.)