Enforcement Q & A DCP Section 4.5

This section deals with the generalities of enforcement procedures, but most topic sections in this manual contain their own specialised enforcement commentary. Matters relating to whether breaches of planning control are in fact unlawful development requiring planning permission are, of course, covered by the commentary at (4.3). Enforcement of listed building control, tree preservation orders and advertisement control is discussed at (27), (29), and (30) respectively. Procedures for taking enforcement matters to judicial review are detailed at (5.4).

Q & A    4.5/10

I have received an enforcement notice alleging change of use of agricultural land to a caravan site. The requirements are that this use be ceased. Does this take away my permitted development rights to use the land for 3 touring caravans for 28 days, for tent camping for 28 days and for caravan rallies?

The courts normally apply the Mansi principle to such a case. This principle is that the requirements of an enforcement notice cannot take away such planning rights as may remain to the land after compliance. However, cases have also shown that in cases of "over-enforcement", a Notice is not necessarily invalid if it does not actually state that a use should cease only to the extent that it exceeds planning rights. It would seem that so long as there is no Article 4 Direction operating, you may use your land for the purposes you outline as permitted by the GPDO.

Does the four year immunity rule relating to unauthorised building development apply equally to development that would have required listed building consent?

There is no "four year rule" provision in listed building law, and no such provision may be imported from the completely separate Town and Country Planning Act 1990. Therefore even though an alteration or extension to a listed building may be immune from enforcement under the 1990 Act, a remedy may still be pursued by means of a listed building enforcement notice. Clearly a listed building enforcement notice would not bite against development carried out before the structure in question was listed and, it may be argued, before listed building enforcement notices were brought into force after 1968.

Response

The fact that there is no immunity for listed building works is iniquitous.  How many householders are aware of what they may or may not do with listed buildings, and through ignorance unwittingly pass responsibility for unauthorised work onto future owners?

Are you aware of any case law or appeal decisions that deal with the issue of "development not in accordance with approved plans"?  In the case in question the approved layout plan is at 1:200 scale. Individual dwellings appear to have been sited from 50m to over 1 metre at variance with the approved layout.

The issue here is whether a local authority could now take enforcement action against this housing development or whether the alterations are de minimis. There are a number of cases on this subject cited at (4.5335). It is of interest to note that decisions may not be made entirely in absolute terms, but also according to the effect of the discrepancy on planning considerations such as the amenity of neighbours.

How long does a mobile home have to be in situ before it will be considered immune from enforcement action?

The ten year rule applies to residentially occupied mobile homes that comply with the statutory definition of a caravan. The four year rule would only operate if the mobile home were considered to be an operational development i.e. if size or degree of attachment to the land gave it the characteristics of permanency.

I have a boat mooring on the Thames. The boat has been at this mooring for over ten years and is in residential use. Will I now get planning permission?

A "houseboat" is treated in much the same way as a caravan in planning law. Therefore, if you can show with evidence that the houseboat has been continuously occupied for residential purposes at the mooring for more than ten years, there will be immunity from enforcement. This enables you to apply to the council for a Lawful Development Certificate, which may be more advantageous to you than planning permission as no conditions may be applied.

I am dealing with an issue relating to an unauthorised café. I understand that enforcement action is about to be taken and one of the specified requirements is to be the removal of an internally illuminated fascia sign.  Can such a step only be authorised under the Advertisement Regulations?

I am assuming that the fascia sign does not have deemed or express consent under the Advertisement Regulations. It is established by case law that an enforcement notice relating to a material change of use may also require the removal of physical manifestations of that use. On this count a fascia sign may be held to be part and parcel of the unauthorised café use and its removal could form a valid requirement of any notice. An appeal case of relevance concerned a 1993 enforcement notice relating to an unauthorised shopfront at a Swindon restaurant. The notice required removal of the associated fascia and projecting signs. It was accepted by the parties and an inspector that it was expedient for the signs to be dealt with under the notice rather than be the subject of separate action under the Advertisement Regulations. In the event, the notice was upheld with a requirement that the shopfront and the signs be removed. Any reader's views on this interesting question?

My authority served an enforcement notice requiring the removal of a caravan and wagon body from land. Before the notice took effect planning permission was given for a barn on the site and a condition required the removal of the caravan and wagon body before the barn was brought into use. The enforcement notice was not complied with and the landowner was successfully prosecuted in the Magistrates’ Court. However, on appeal to the Crown Court it was held that the barn permission gave an implicit permission for the structures to remain on the land until it was implemented. Was the Crown Court right to come to this conclusion?

Although the local authority did not expressly grant planning permission for the retention of the caravan and wagon body, in applying the condition it made a statement that it was not averse to the structures remaining until implementation of the barn, or indeed five years if the permission was not taken up. Whether this was sufficient to, in effect, estop the authority from pursuing its enforcement action is an interesting matter of law, upon which I await the views of readers with anticipation.

Application was made to join a walled garden associated with a now demolished mansion, to form part of the curtilage of a former estate worker's cottage.  Permission was granted but with conditions that my client finds unacceptable. The use has not yet been implemented but investigations have now revealed that there is sufficient evidence to support an LDC application. However, even if it issues a certificate, the council maintains that the conditions to the planning permission still apply. What is your interpretation?

An LDC does not expunge an existing planning permission and its conditions. Technically, when this development is implemented, those conditions become enforceable if not complied with.  Perhaps the better course of action would be to apply to have the offending conditions removed, and assuming that a refusal resulted, let an appeal inspector decide whether there was inappropriate original imposition in the light of the facts of the case.

Someone in my area bought a dwelling 11 years ago, which included a small adjoining field. A stable was erected with permission over 10 years ago. Since then the land has been used for ancillary domestic purposes for the keeping of a horse and pony. Trees have been planted and the land used for playing rounders, football, bike riding and, of course, horse riding. Has the land now acquired use rights as part of a dwellinghouse curtilage, and would it now enjoy permitted development rights?

If the owner can show with evidence that the land has been used for ten years for purposes in association with the primary dwellinghouse use, immunity from enforcement - and hence lawful status - could be successfully pleaded. From the details you give it would appear that extensive domestic activity has taken place, but a test of intimate physical association with the dwellinghouse may also need to be satisfied. There is no rule of thumb in these cases. At appeal an inspector will need to look at the picture in the round to establish whether the land and the main house now form the same planning unit. If an LDC is granted this will confer "curtilage" permitted development rights, although Circular 10/97 does not explicitly say so, as did its predecessor Circular 17/92.

A steel framed barn has been erected on land without complying with the prior notification requirements of the GPDO Part 6 Class A.  The walls of the barn were allegedly erected more than four years ago but the roof sheeting was completed only two years ago.  Should a Lawful Development Certificate (LDC) be issued in respect of the walls alone or for a barn, or if enforcement action were to be taken could only the roof be required to be removed?

The courts have held that where works are part of a continuous operation, the fact that some sections may have been in existence for more than four years, does not grant immunity from enforcement for those parts. I have no doubt that the erection of a distinct building such as a barn would be seen as one operation for this purpose even though construction may have been spread out over a number of years. It follows that it would not be possible to issue a LDC for the whole barn or any part of it. A local authority has the discretion to under-enforce and just require the removal of the roof, but what would be the point?

I am advising a client who has been using over 25 former agricultural buildings for business purposes and wishes to obtain a Lawful Development Certificate (LDC). Some have been occupied by the same company for more than ten years, but others have been used by various enterprises for different uses that may not be within the same use class. All the individual buildings are below 235 sq m and the various uses would have been able to interchange between B1, B2 and B8 as Part 3 permitted development. However, it is my understanding that there are no permitted development rights for unauthorised uses. Therefore, as the use of certain buildings has changed over the last ten years is it the case that they are not immune, or are they protected as part of a mixed use certificate covering the whole planning unit?

The key here is whether or not each enterprise using these buildings is likely to be considered a separate planning unit requiring individual consideration in respect of lawfulness.  If it is felt that the whole is one clearly defined unit of occupation and that the divisions between the various uses therein are informal, it is possible for an assessment to be made that there is one unit in mixed use. This was the case in a Wimborne appeal decision from 1998 (DCS No. 051-112-463) where an inspector considered that although the commercial uses of ten units at a former farmyard had varied within the ten years, the overall mix had remained similar. A certificate was given for a mixed B1-B8 use, but which specified the particular uses being carried in each of the ten units in order to set a bench mark against which to measure further changes for materiality.

The less favourable situation from your client's point of view would be if the various enterprises were to be considered separate planning units, as in such a case it would have to be shown that the particular unauthorised use of each unit which was in being at the beginning of the requisite ten year period, had been carried on continuously without material change. In all this any assessment to be made will have nothing to do with permitted development rights or the rights given by the Use Classes Order.

I have a Lawful Development Certificate (LDC) relating to a building and a half acre of land adjoining my house which permits the "Erection and use of building, and use of land, for residential purposes falling within Use Class C3."  I have subsequently extended the building by a small amount, but have been told by the local authority that there are no permitted development rights to do so as the LDC did not incorporate the land within the curtilage of my house. I disagree, but who is right?

It seems to me that this certificate has been badly worded. Indeed it could be interpreted as permitting use of the building as a separate dwelling. It was not appropriate for the local authority to cite Class C3 in this case due to its specific reference to "Use as a single dwellinghouse". However, your immediate concern is that the certificate land should now be regarded as part of the house curtilage, and this contention seems well worth testing at appeal following a further LDC application for the building extension carried out. However, despite the advice in superseded Circular 17/92, where it was stated that an LDC confers relevant permitted development rights, it would seem that the departmental view is now that this is not the case, hence the omission of the 1992 guidance from current Circular 10/97. Clearly this is a problem to be overcome, but I am sure that practitioners would be pleased to have a conclusive ruling on the matter, even if it ultimately means resort to the courts.

The operation of my business was reported to the local authority and legal action was threatened by an enforcement officer unless I closed the business down or moved to a designated site. I applied for planning permission, although I now realise that that I did not require it because of the operation of the ten year immunity rule. The permission granted was subject to 11 conditions, of which the most damaging is a personal condition. An application to remove it has been turned down. What should I do now to get out of my predicament?

The first step is to establish whether the operation of your business is lawful by applying for a Certificate of Lawful Use (LDC). If as you say the business has been in continuous operation for more than ten years there should not be a problem provided you can produce enough evidence to prove the case. Although the conditions applied to the planning permission would not be automatically invalidated by the existence of the LDC, a subsequent application to remove all or some of them should succeed on the basis that they were inappropriately applied to a lawful development.

Response

The decision of the House of Lords in Newbury v Secretary of State for the Environment [1980] may be used as authority for the view that where a lawful use exists, the occupier of a site is entitled to rely on his existing use rights, and can ignore any conditions attached to a later permission purporting to authorise the same use. In effect, the user can properly claim to be using the site under earlier use rights and therefore had not implemented the "unnecessary" planning permission. Consequently the conditions attached had not come into effect and are not capable of being enforced. This leaves the problem of the "unnecessary" permission remaining on the register and the planning authority should be invited to revoke the permission altogether, or alternatively to approve an application to remove all the conditions.

A permission for a stable building to be converted to a holiday cottage had stringent planning conditions applied to it requiring timed periods of occupation and precluding use as a residence. I have now lived in this cottage for 5 years and have been told that I can apply for a Lawful Development Certificate (LDC). I am not sure if this is correct.

You will not be able to succeed with an application for an LDC relating to occupation of the premises without complying with these conditions, until there has been continuous breach for ten years.

A local wine bar was permitted in 1982 with a condition that it must close by 11.30 pm. It has regularly stayed open until at least midnight for more than 10 years. There is sufficient evidence to enable the owner to obtain a Lawful Development Certificate (LDC) regarding non-compliance with the condition. Would this the enable him to open even later than he has been doing and can he also open later on other days? That is, does the LPA lose all control over opening hours or only to the extent of the breach?

In this situation, where extended hours in breach of a condition can be shown for more than 10 years, an LDC will be issued stating that those particular hours are now lawful. The LDC does not expunge the existing condition relating to hours, and therefore a local authority may still rely on it to enforce against any other breach of the condition not protected by it.

My authority is considering taking enforcement action against a house that allegedly is being used as a brothel. Do you know of any examples where such a notice has been successfully upheld?

It is rare for any problem created by such a use to be dealt with using planning powers, and the only appeal example of which I am aware was determined in 1994 in Birmingham. Here an inspector confirmed that a material change of use had occurred from a dwelling to a mixed use of residential and prostitution. Planning permission was refused because of the adverse effects on the character of the house and neighbourhood caused by the comings and goings of customers, and by the presence of kerb crawlers and those on foot looking for the services of a prostitute. The case is further described and illustrated at (17.212).

I have come across a seeming disparity in planning law relating to the unauthorised creation of a dwelling in a building.  If the four year rule is to be pleaded it is normally held that the clock starts at the moment that the accommodation was substantially completed, rather than when it was actually occupied as a dwellinghouse. On the other hand I have been told that in the case of a dwelling that has been created more recently, an enforcement notice cannot bite until the accommodation has been occupied. In other words a material change of use will not have occurred until the accommodation is actually used for living in, rather than when it was fully equipped and available for occupation.

This has been a point of confusion for many. So far as the four year rule interpretation you cite is concerned, this is correct. The law states that the four year rule starts to bite so far as the creation of a single dwellinghouse is concerned when the "operations were substantially completed" and the courts have supported the view that the point of substantial completion may occur even when many finishing works have not been accomplished. At section 56(1)(b) of the Town and Country Planning Act 1990 it is stated that the development of land shall be taken to be initiated in the case of a change in use, "at the time when the new use is instituted". Therefore, on the face of these words in statute it would seem that a use would actually have to take place for development to have occurred and the physical preparation of a building for that use is not enough. However, in the court case Lake District Special Planning Board v Secretary of State for the Environment v Impey [1980], concerning the conversion of kennels to a dwelling, it was held that a material change of use could be implied from operational works even though no actual change of use had occurred. The flaw in this court judgment is that an assumption has to be made that accommodation that has apparently been made ready for occupation as a single dwellinghouse would in fact be so occupied, rather than for ancillary residential purposes. There is an inherent lack of fairness in this approach, and I wonder if readers have knowledge of this point having been raised in other cases.

Response

I am not sure whether my experience sheds light on, or further obscures the question. My client bought and occupied a vacant house previously in multiple occupation intending to refurbish it as his family home. This he did, with the help of a builder, over the next eight months. Four years later the local planning authority issued an enforcement notice alleging unauthorised change of use. At the subsequent appeal, the inspector held that although the unauthorised use had commenced more than four years previously, the enforcement notice was valid because the works of conversion were not substantially completed until six months later, i.e. within the four year limit.

A house has been built without planning permission next to a group of farm buildings serving a farm. It is reached by a farm track and has been lived in for four years, with the farm being run from the house. What is the correct approach to determining whether enforcement action should rely on the four year rule or the ten year rule? I am faced with the proposition that the ten year rule is appropriate based on the argument that the planning unit is the whole farm and that because of the shared access and the use of the house in connection with the running of the farm, a mixed residential/agricultural use has occurred.

The four year rule is embodied in statute at section 171B of the Town and Country Planning Act 1990. This indicates that if there has been a breach of planning control consisting of building operations no enforcement action may be taken after four years. The section also states that the four year rule also applies to a change of use to a single dwellinghouse. Thus there is direct statutory authority for the proposition that what has taken place is lawful by reason of the four year rule. I do not think that court-led concepts, such as the use of the planning unit in determining whether a material change of use has occurred, override a clear statement of law in this respect. Use of part of the farmhouse, say as a farm office or farm ablutions, would be ancillary to its primary use for residential purposes and, in my opinion, would not disqualify it from being a "single dwellinghouse" in section 171B terms. Neither would I have thought that.joint use of its means of access has anything to do with preventing the farmhouse from being so considered. My conclusion is that an attempt to apply the ten year rule to this circumstance is spurious, and I have failed to identify any court or appeal cases where this line has been argued.

Response

The court case Stanway v Secretary of State for the Environment, Transport and the Regions [2000] may be cited in support of the view that a mixed use could be found to have occurred in this situation.

The Stanway case referred to a circumstance where a residential use had been introduced into a stable building. An inspector had noted that the accommodation was very deficient in respect of light and ventilation. In addition the structure and specification of the building were more appropriate to a stable. He reasoned in accord with these findings that the development enforced against had not led to the creation of a single dwellinghouse, rather a mixed use for stables and residential use. Following challenge, the judgement given was that any decision as to whether accommodation was, or was not, a single dwellinghouse, is matter of judgement for the inspector in the circumstances of the case. However it was found that the inspector had not justified his view that a mixed use had occurred in the light of the later finding in his letter that the functional linkage between the residential use and the stabling was tenuous. With respect, I do not see that this judgment takes anything away from my conclusion that provided the normal tests for a single dwellinghouse are met, such as are set out in Circular 10/97 paragraph 2.81, then the four year rule is applicable regardless of what other adjacent use the dwelling is associated with.

I was involved in the Stanway case and question the original view in the light of the remitted appeal decision dated 18 May 2001. The inspector stated that there was a close connection between the living accommodation and the stables and he was not persuaded that the two holdings were physically separate and distinct. Therefore he felt that a material change had taken place to a mixed use including a residential element. The inspector noted that the health and safety of the horses was the principal manifestation of a functional relationship between the respective uses.

I still maintain my original view. With reference to the facts of the remitted case which I have read, I feel that if the residential accommodation had been a little more self-contained so as to qualify as a single dwellinghouse as set out at section 171B of the Town and Country Planning Act 1990, it would not matter a jot what associated purpose the accommodation was intended to serve or support.

Can you tell me whether a local authority has ever served a discontinuance order against a telecommunications mast using sec.102 of the Town and Country Planning Act 1990?  In this case a council failed to serve a notice of refusal of deemed consent within the requisite period. As a result the mast has been built and local people are campaigning for its removal.

Use of discontinuance orders is rare in any circumstances due to the compensation implications, and I am not aware of an instance related to telecommunications. Has any reader had experience of such a case?

Response

I am aware of a current case on Wirral where the local authority has resolved to serve a discontinuance order relating to a mast. The situation was that the council's decision under the 42 day prior approval rule had been received by the applicant company a day late, and the mast had subsequently been erected. In the light of the fact that a large number of objections, and a petition had been received opposed to the development in a green belt area, the local authority planning committee voted to pursue the order despite advice as to the compensation implications should it be confirmed by the Secretary of State. The committee was also informed that there was a business case for a mast in this area and it was almost certain that application would be made for an alternative site. A final decision on whether to proceed will shortly be made by the council's cabinet.

I have been in breach of a condition that restricted the parking of a defined number of vehicles to a specific part of a field, the whole of which was the site of the original application. I can show that for more than 10 years a vehicle has been parked outside of the defined area. If I apply for a Lawful Development Certificate (LDC) will it enable me to park anywhere in the field?

The grant of an LDC where there has been breach of a condition does not discharge that condition. It will specify whatever particular breach of the condition had taken place for ten years or more at the time of the application. In your case, if ten year breach can be proven, a certificate will be issued to the effect that the parking of a vehicle outside the original defined area is lawful and therefore immune from enforcement action. It follows that in the future should the local authority feel that the parking situation has changed to the point that there is further breach of the original condition, as relaxed by the LDC, it may still be possible to invoke enforcement action.

Is it an absolute fact that once a planning contravention notice has been issued it cannot in any way be removed? It is not common sense that if an ‘hours of work condition’ has been breached during the construction of an approved development it can apply ages after completion of works. However, we still receive enquiries from conveyancers about such notices years after houses have been built. Is it possible to rescind or remove the notice?

A planning contravention notice may be issued when local authorities suspect a breach of control but require more information about activities. However, it is clearly stated in Circular 10/97 Annex 1 1.5 that there is no requirement to enter a planning contravention notice in the LPA's register of enforcement notices, and that such a notice is not a legal charge on the land. Accordingly there is no reason why information about past planning contravention notices should be appearing on searches, and I would have thought that an approach to any perpetrating authority to cease the practice should regularise matters.

My client is operating a touring caravan park in breach of a planning condition and is considering applying for a Lawful Development Certificate (LDC). Is there any difference in the standard of evidence required as compared with that needed to contest a breach of condition notice?

As there is no right of appeal to the Secretary of State against a breach of conditions notice, if such a notice is served a case will have to be made before lay magistrates if you wish to defend it. On the other hand, if your LDC was denied your client will be able to argue his corner before a planning inspector. While in theory either course of action should make no difference to the standard of evidence required, a planning inspector will be in a far better position to consider the nuances of planning law, which may possibly be in your client's favour.

I applied for a Certificate of Lawful Development (LDC) on behalf of a client who converted a shop store into a small studio flat. To support a four year rule plea eight letters were produced from local people who had either stayed in the flat or had visited it. The council say this is not enough evidence as there is no record of separate council tax or electricity supply. Are you aware of any rules that state the requirements for evidence in a case like this?

DoE Circular 10/97 relating to the enforcement of planning control is quite useful in setting out the general position regarding evidence at appeal. At paragraph 8.15, which relates to LDCs, it is advised that the burden of proof is on the appellant, but that the relative test of evidence is the "balance of probability" rather than the stricter "beyond reasonable doubt" employed in the criminal courts. The circular adds that the appellant's own evidence does not have to be corroborated by "independent" evidence in order to be accepted, this ruling being derived from the court case FW Gabbitas v Secretary of State for the Environment  and Newham London Borough Council [1985]. The circular continues that if the local planning authority has no evidence of their own, or from others, to contradict or otherwise make the appellant's version of events less that probable, there is no good reason to refuse the application. Applying this guidance to your case it is clear that if you do not have evidence, such as the rating or electricity bills required by the local authority, this need not necessarily be a problem, provided that the veracity of your witness statements is to be believed on the balance of probability when weighed against anything the council may produce to the contrary.

I have been told that in cases where a local authority enforces against a development not built entirely in accordance with approved plans, that the enforcement notice should allege that the whole development is unauthorised rather than direct its notice against the specific breach. This seems a strange approach and I would be grateful for your view.

There is judicial authority confirming that even quite minor alterations made to a development during the course of construction should be countered by an allegation that the total development is unauthorised. In Copeland v Secretary of State for the Environment [1976] enforcement action had been taken against a house which had been built with roofing materials which varied from that shown on the details attached to the permission. The developers appealed against an enforcement notice directed against the roof tiles, and the Secretary of State ruled that the notice had incorrectly identified the breach of control and had to be quashed. The High Court confirmed the Secretary of State's approach arguing that where there was new development the operation as a whole was to be treated as a single one. The judgement concluded that the local authority had under-enforced and it would not be possible to remedy the defect without injustice. In other cases where a condition has required completion of a development in strict accordance with approved plans, it is breach of that specific condition that should be the subject of any allegation. Of course, in the case of changes to a development after completion it is quite correct to direct an enforcement notice to the specific breach.

I am perplexed by the decision in the court case Panton and Farmer v Secretary of State for the Environment & Vale of White Horse District Council [1998]. This would seem to suggest that in considering whether a use is lawful using the ten year rule, a period when the use is inactive or "dormant" may not necessarily interrupt the operation of a continuous breach. Surely this cannot have been the intention of legislators?

You touch on a common difficulty with this judgement which has been subject to much misinterpretation. Essentially the Panton and Farmer decision suggested that when dealing with a ten year rule case it was not sufficient to examine only the precise period of ten years before an application for a lawful development certificate, one needed to look at the whole planning history. If that history suggested that in the past the use had been in operation for ten years then the fact that in more recent times the use had gone into dormancy did not take away such rights. The court reasoned that a use right could only be lost by abandonment, a change in the planning unit or the introduction of a new use. This judgement was generally supported in the High Court and Court of Appeal cases Thurrock Borough Council v Secretary of State for the Environment [2001] and [2002]  where the concept of the "lawfully accrued use right" was introduced. Of course in cases where enforcement is contemplated, as noted in Thurrock, action could not be sensibly taken against a use which was sleeping at the time of service and therefore any such period could not count to the rolling period of years required for immunity.

In 1988 a relative replaced rotten windows in her grade II listed cottage with wood effect UPVC frames. The council have now told her to apply for listed building consent or face enforcement action. Am I right to assume that there is no time limit for enforcement action or does the ten year rule help? Secondly, given that the council failed to notice the fake wood despite surveys, could it be argued that the change does not affect the character of the building and therefore does not require listed building consent?

There is no four or ten year rule relating to works undertaken requiring listed building consent. Therefore a listed building enforcement notice can bite in relation to works carried out at any time after a building was initially listed. As you say, it is possible to claim that works to a listed building do not require consent if they do not affect its character as a building or special architectural or historic interest. The problem is that this "character" test is not totally a matter of pure visual assessment and replacement of an element of a listed building with a different material may be considered to harm its integrity. I must say I am surprised that the window replacements have remained undetected in the way you describe, as it is common experience that traditional windows have never really been successfully replicated in plastic.

An applicant for a lawful development certificate (LDC) erected a steel framed barn on his land without complying with the prior notification requirement of the GPDO. The walls of the barn were allegedly erected more than four years ago but the roof sheeting was completed only two years ago. Can an LDC be issued for the walls but not the roof?

In order to succeed with a four year rule plea it is necessary to show that the building concerned was substantially completed. In a similar appeal case to that which you cite an inspector found that while the walls of a barn may have been erected more than four years prior to the service of an enforcement notice, on the basis of the appellant's evidence the roof sheeting could not have been completed until at least 10 days after the relevant date. In the inspector's view the building would not have been substantially complete until most of the roof had been covered. Although the criteria with regard to substantial completion were relaxed by the Court of Appeal in Sage v Secretary of State for the Environment, Transport and the Regions [2001] under this judgment the cladding of a roof is an operation that would still have to be accomplished.

A use has occurred for in excess of ten years. It happens for a temporary period each year and the pattern is probably variable. Could a local authority take enforcement action if it did not have evidence to show a material change of use within the last ten years, and how long does a use have to operate in any given year for there to be a material change of use?

At appeal the onus is on an appellant to produce evidence to support the grounds argued. In your case it will need to be shown that any alleged breach of control is immune from enforcement, and if not the balance of the argument will go to the local authority. It is sometimes possible that uses which have been carried out seasonally may be considered lawful in those terms after ten years, but there is no rule of thumb that may be applied. All depends on the materiality of the activity during the requisite period of ten years and the nature of the use of the land at other times of the year.

Response

Although there would be very few instances where this would apply, it seems that any demolition of or works to a listed building carried out before 1 January 1969 may not be enforced against. This is contrary to your reply and indeed to the advice in PPG15, which states that there is no limitation on the period within which a listed building enforcement notice may be issued. Such immunity was granted by virtue of paragraph 23 of part V of schedule 24 of the Town and Country Planning Act 1971, which stated that section 55(1) of the 1971 act did not apply to works carried out before 1/1/1969. This section became sections 7 and 9 of the Planning (Listed Buildings and Conservation Areas) Act 1990. Interestingly, paragraph 3 of schedule 3 to the Planning (Consequential Provisions) Act 1990 provided that, despite the repeal of the 1971 Act, the provisions of schedule 24 continued to have effect. Therefore, if anybody can prove that unauthorised works to a listed building were carried out before 1/1/1969, listed building enforcement action can have no effect.

In 1990 permission was refused to incorporate land on the edge of a village into the garden of a house. The change of use had already taken place and the land had the appearance of a lawn with some tree and shrub planting. A subsequent appeal was dismissed but the local authority did not pursue enforcement action. A complaint was then made to the Ombudsman by a neighbour, and it was found that the decision not to enforce was not maladministration.  In 1999 a neighbour complained to the district auditor and at his request a contravention notice was served. The matter was then considered by planning committee and it was reported that no enforcement could be taken due to immunity now achieved under the ten year rule. Is there any further redress available to the third party?

A decision whether to take enforcement action is discretionary, but a local authority may be found guilty of maladministration if there was a good planning reason to take action against unauthorised development and it did not do so. I do not know the circumstances of the original Ombudsman’s finding in this case so cannot advise whether a further complaint may now be made after the lapse of time involved and further events. Failing this the only redress would seem to be through judicial review, but this is a hazardous course of action not to be embarked upon lightly.

If a building is converted to a single dwellinghouse and secures immunity from enforcement under the four year rule, does that immunity extend to the whole curtilage and bestow permitted development rights therein?

If a dwellinghouse has become lawful by the operation of the four year rule, it is reasonable that the curtilage associated with it during the requisite period also assumes the protection of the immunity given. Were this not so it would be open to a local authority to enforce within ten years against the domestic use of the land surrounding the residential building concerned. This would be nonsense as it would act to deny a lawful use any access and amenity space.

The question of whether permitted development rights apply in this situation, has been the subject of departmental prevarication but it seems, from a reading between the lines of enforcement Circular 10/97 paragraph 2.81, that if a building is used as a single dwellinghouse and also looks like one to a reasonable person, then permitted development rights could apply. My own view is that if a building is a lawful dwellinghouse permitted development rights apply in all cases and it is not within the scope of ministerial power to deny such a right or attempt to make it conditional.

My council is considering enforcement action against the use of a lay-by for the parking of a hot food van, but is uncertain as to the form that the allegation should take and whether the notice should be served on both the highway authority and the operator of the facility. Can you help?

I assume that this is a van which comes to and from the lay-by concerned on a daily basis. In this case the correct allegation is a mixed use of the lay-by as a whole for the purposes of a public highway and the sale of food and drink. Any notice should be served on the highway authority as owner of the land, as well as the proprietor of the van.

The leisure and education departments of my local authority are increasingly submitting applications for various major developments. Naturally, permissions often contain many conditions. In the event of a breach could the planning department serve an enforcement notice on those departments or indeed the chief executive?  If so, this could lead to a prosecution where the council could be the both the defendant and the prosecuting body. If this scenario is not possible it is questionable whether the original conditions pass the enforceability test. Comments appreciated.

This seems to be one of those situations that is theoretically possible but which in practice is not going to occur. Research of appeal cases has yielded examples where enforcement action has been taken by local planning authorities against county councils, but none involving the same authority. It is difficult to imagine that a planning committee or the relevant legal officer of a local authority having the power to authorise enforcement action is going to do so when the result would be a very embarrassing public airing of discord between departments of the council. However, in the event of a dispute of this sort being arbitrated I do not think that there is a strong case for saying a condition applied by a planning department requiring compliance by another department is invalid because of the "enforceability test". Circular 11/95 states that the test of a condition under this heading would be failed if there is doubt that the person carrying out the development may reasonably be expected to comply with it. Despite the unlikelihood that such a scenario will have occurred do readers have experience of any cases?

My authority considers that the occupant of a dwelling is using both a garden curtilage and adjoining highway to display and sell second hand cars. The predominant part of the business is conducted from the highway. Are there any cases where LPAs have instigated enforcement action to prohibit car sales from the highway?

I cannot identify any planning cases of this type, but perhaps readers may have knowledge of examples. The reason may be that the use of a public highway for the sale of cars is likely to be an offence under the Highways Act for which the perpetrator may be prosecuted. In this circumstance it may not be thought appropriate for planning powers to be used, as any enforcement notice would need to be served on the appropriate highway authority which may be the same body as the planning authority!  Although technically a material change of use will have occurred if a particular area of the public highway is consistently used for car sales, a further difficulty in taking effective planning enforcement action is that the use may well be a transitory one. Cars may be parked and sold from differing parts of the highway at varying times making the formulation of a firm allegation an intractable problem. The best way for a local planning authority to attack this activity is to serve a notice relating to the unauthorised car sales business within the curtilage of the dwelling concerned, while urging the highways authority to take separate action against the use of the street.

Response

I am reminded of Runnymede Borough Council v Fulke-Greville and Another [1996] where injunctive relief was granted. The order included a restriction on the defendant using the highway for parking or storing vehicles.

My authority has not taken action in such a case but did have a persistent problem with the parking of cars, lorries and scrap vehicles on a wide highway verge. Although there was long correspondence with the county council it was unable or unwilling to take effective action as landowner and highway authority. As a result, enforcement notices were served on both the operator and the county council and, apart from occasional lapses, it appears to have concentrated the mind.

Temporary permission for a residential caravan was granted for a six month period from April to October 2002. In May 2002 an LDC application in respect of the same use was refused. Is it possible to make an application for an LDC at a time when the use applied for is temporarily lawful? Secondly, if the temporary permission would have effectively regularised the breach of control would a new breach and a new ten year time period commence upon expiry?

An application under sec.191 of the 1990 Act to determine the lawfulness of an existing use relates to the position on the date that such an application was made. Therefore in May 2002 the stationing of this caravan was lawful by virtue of the temporary permission and I would have thought that a certificate would strictly have to be issued in those terms. However, it may have been possible for an application under sec.192 for a certificate of lawfulness in respect of a proposed use to cover this situation. In this case, application could be made for the siting of the caravan as from November 2002, but I do not have any case evidence to endorse the legal acceptability of such an approach.

As to the other point that you raise, there is court authority for the proposition that a fresh breach of control would occur after the expiry of the limited period permission on the basis that a new chapter in the planning history of the site had begun. It would then be open for an LPA to enforce against breach of the limited period condition, a new set of circumstances entirely.

I have submitted an LDC application for the conversion of a barn with curtilage to a small two bedroom cottage with garden. It is not in dispute that my client moved onto the site seven years ago and lived in a caravan prior to moving into the barn five years ago.  One of the first tasks undertaken was to mow the grass and create a garden area. The local authority is now insisting that my client’s application be determined in two parts, an application using the four year rule for the barn itself, and an application using the ten year rule for the garden area. It has conceded that a narrow strip around the property and land for access and parking can be included with the dwelling. I can find no legal authority for this proposition, and the authority has offered none, and would like to ask whether it can argue for some arbitrary dissection of the planning unit created.

I cannot identify a court or appeal case to have tackled this particular point, but my feeling is that this authority's approach may be legally spurious although no doubt springing from the best possible planning motives. I can only advise you to stick out for the curtilage that your client wants, let the authority refuse the application and then appeal.

Response

When considering any change of use, the planning unit must be identified.  Burdle v SoS [1973] indicates that all land in single occupation for the same purpose is to be treated as a single planning unit. Clearly the garden land is used solely for purposes incidental to the enjoyment of the dwellinghouse as such; therefore it forms part of the same planning unit and must be included in the LDC. The garden land has clearly been within the curtilage of the dwellinghouse throughout the 4-year period (in which connection, see Collins v SoS, Dyer v Dorset CC and Skerritts of Nottingham v SoS). The LDC application must be dealt with as submitted, referring to the whole of the planning unit including the domestic curtilage. The 4-year rule applies to the whole planning unit, and the LDC application should be determined accordingly.

I have been asked about the legitimacy of a recently issued LDC regarding a use carried on for more than 10 years, but which does not state any reasons for the council’s decision to grant. Could it be invalidated at some time in the future due to the omission?

The 1990 Act, as amended by the Planning and Compensation Act 1991, states at sec.191(5)(c) that a certificate shall "give the reasons for determining the use, operations or other matter to be lawful". This is clear enough but confusion may have arisen as the Town and Country Planning (General Development Procedure) Order 1995 does not refer to this requirement at Article 24 and the standard certificate set out at Schedule 4 does not include a section for reasons. Nevertheless Circular 10/97, at 8.16, states that it is vital that a certificate states precise details of what is found to be lawful, why and when.
I do not know of any case where a certificate has been challenged because no grounds are mentioned, but doubt whether the courts would support a claim of invalidity on this basis. The sensible course of action would be to ask the local authority to re-issue the notice in accord with their statutory duty. The court case R v Arun District Council ex parte Fowler [1997] provides the authority for local authorities to issue corrected certificates.

A number of owners of properties in a village in our local authority area have bought parcels of agricultural land outside their own residential curtilages. These pieces of land are in the open countryside and outside the development boundary of the village.  There is no doubt that they require planning permission, being a change of use from agricultural land to residential garden. However, when it comes to taking enforcement action we are in a bit of a quandary.  Ideally, the occupiers of the properties should be asked to restore the land to agricultural pasture land, but do we just ask them to stop mowing the land or to remove their nice lawn turf?

There have been varying approaches to the framing of reasonable requirements in enforcement notices relating to domestic curtilage extensions onto farmland. Some authorities have taken the hard line view that reversion of the land to agricultural use should be undertaken, but this approach may not be practical. Once sold, it is very difficult to persuade a farmer to take land back into agricultural use, and unreasonable to expect a householder to "farm" the land. As a result many authorities impose less onerous requirements such as the reinstatement of the original fence or hedge, the removal of domestic garden paraphernalia such as summerhouses, pergolas, statuary, paths and ponds and so on and the cessation of the use of the land as a private garden. Even the removal of "planted flowers and shrubs" has been endorsed at appeal. An additional requirement to restore the land to a condition "fit for agriculture" is often applied, as in a case from Harborough in 2001 (DCS No.054-243-257).

I advise that your council should consider exactly what measures are required to remedy the harm to rural protection policies in this particular case, and construct its enforcement requirements accordingly. In this context I see no impediment to the "no mowing" requirement that you suggest, although turf removal might be considered excessive.

Response

The planners here in Singapore had a good laugh over this question as it reflects the rigid mentality and mindset of development control officers. Planners should facilitate development and not restrict it. If such a case occurred here, we would have granted an annual renewable temporary occupation license to use the agricultural land as a residential garden. For a case like this a new policy would have been drawn up, which most probably would have studied the requirements of the different property owners and would have restricted the areal extent of such conversion as a percentage of the residential plots.

I see that in the Sage case the House of Lords has reversed previous lower court decisions and the position regarding the point at which the clock starts ticking for the purposes of  achieving immunity under the four year rule is now back to where it was. I am in the position of having applied for an LDC just before the House of Lords ruling and was fairly certain that, given the "substantial completion" definition endorsed by the Court of Appeal, I could show that the building concerned had been constructed for more than four years. How do I stand now?

An LDC affirms that a development was lawful at the date of the application for a certificate. On this basis I would have thought that the local planning authority is obliged to have regard to the interpretation of the law embodied in the Court of Appeal judgment, this being the current leading authority at the time. If a certificate is granted following this reasoning then your building will enjoy its benefit in the future no matter what changes in, or interpretations of, the law, occur subsequently. I would be interested to hear if any reader has a contrary view.

If an LPA is out of time to take enforcement action by the operation of the 4 or 10 year rules does the immune use comprise the lawful use of the site or this only achieved when a formal LDC is issued? In the case I am dealing with 5 years has passed with regard to a residential use but it is now desired to revert to the original B1 use. No LDC has yet been sought and there are policies in place designed to protect residential uses. Is planning permission required?

There is no right of reversion in these circumstances. The original B1 use has clearly been abandoned by the implementation of the residential use now immune from enforcement and notionally lawful. It is of interest that if the local planning authority had enforced against the residential use before the expiry of the four years there would have been a right to revert back to the immediately previous lawful use. Therefore, the answer to your question is that permission is required for the B1 use.

Response

I disagree with the advice given, although it is correct to say that subsequent re-interpretations of the law will not re-open LDCs. The LPA must decide any application in the light of the law as it stands when it determines the application, not as it was at the date when the application is made. This is even so if the law is changed as the result of a court decision between the dates of application and determination. Thus in your correspondent’s case, if the LPA decides the application applying the Court of Appeal’s decision rather than that of the Lords, and issues an LDC, then its decision would be vulnerable to legal challenge from, say, an interested third party.

I have a client who has successfully obtained an LDC in connection with the residential use of a swimming pool building in his garden.  I have advised him that, in order to regularise the situation, it would be prudent to submit a retrospective application for planning permission.  I have offered this advice as I believe that if the residential use ceased, the lawful use would revert to the previous use as an ancillary swimming pool building. The LPA, however, maintains that the LDC is tantamount to a full planning permission. It does not want to process the application as it may lead to the imposition of conditions, which could be argued to be unreasonable in light of the LDC already issued. I would be grateful for your comments.

An LDC does no more than certify that at the date of the application the development specified is lawful and cannot be enforced against. Although it is stated in Circular 10/97 Annex 8 para. 8.16 that the effect of an LDC is similar to a grant of planning permission, I do not think that if a use certified to be lawful were to cease, an LDC can operate to authorise resumption of that use at any time in the future. But I do not have any case law to back up this assertion. It would seem a sensible safeguard to seek a formal planning permission for the residential use for the reason you put forward, and perhaps more importantly to obviate any claim that no permitted development rights are available to LDC dwellinghouses. Although the LPA is right to say that it would have difficulty in justifying any conditions it might like to apply due to the fallback of the LDC. I am not at all sure that it can refuse to deal with your client’s application on that basis. The comments of readers are requested on this interesting question bearing on the legal effect of an LDC as opposed to a formal planning permission.

Response

I would take the view that once the LDC were granted, the residential use right could only be lost by an act of abandonment. For instance by commencing another use or gutting the building so that it could not longer be used for residential purposes. A mere ceasing of the residential use would not result in the loss of that right.

Two holiday caravans have been sited for more than 30 years in a fenced off area of a paddock. A separate planning unit is easily identifiable, and were an LDC application to be made it would certainly be granted. Although such a certificate would be specific to the lawful siting of the two caravans would planning permission then be required for a third unit given that "pure" intensification of a use is now not normally regarded as a material change of use?

If an LDC is issued in the situation you cite it will state that the use of the land for the stationing of two holiday caravans is lawful at the time of the application. If a third caravan is later added without permission it will then be for your authority to consider whether there has been a material change of use of the land, and if so whether to take enforcement action. In this particular case there will be no change in the planning unit and the use of the land remains unaltered. But it is still possible that a material change of use through intensification may occur as use of land as a caravan site does not fall within any Use Class. Any determination on this point is a matter of fact and degree. However, a recent enforcement case reported in Planning 22 November 2002 p26 is of interest. Here an inspector felt that an extra caravan at a site where there was an LDC for one unit did not constitute a material change of use. It was reasoned that the character of the site would not be substantially changed as it would remain largely vegetated. Although there would be an increase in activity it would not be different from that already taking place, and there would be no intensification materially altering the character of the land. The enforcement notice was quashed.

You recently reported a case involving a requirement to replace new uPVC windows and a door with a type to be agreed using a neighbour’s property as a model. This seems to be a reasonable and sensible way of getting round the problem that the originals have disappeared, without the harshness of prescribing an exact design. I am sure that many planners would have worded the notice in the same way, but the inspector found the wording uncertain. While I agree, it seems the best way to resolve the problem. What is the recommended way of wording this type of notice?

Circular 10/97 paragraph 2.34 draws attention to the judgment in Kaur v SoS & Greenwich LB [1990] where it was held that a requirement of an enforcement notice providing for the subsequent submission and approval of a restoration scheme introduced an unacceptable degree of uncertainty. The circular advises that such requirements should be avoided and that specific steps are set out to remedy any breach. It goes on to state that if this is impractical an alternative is to simply require restoration to the condition before the breach took place leaving the developer to comply in accordance with his or her knowledge of that condition.

In the reported case that you mention the inspector used the Kaur ruling in his reasoning and this combined with the fact that it was not certain that the next door windows were in fact similar to those removed from the appeal property, led to the notice being considered void from uncertainty. It follows that in this type of case there should be no problem provided that the requirements of a notice tell the recipient exactly what works need to be done to remedy the breach. In addition if reference is made to the replication of features of the existing building or other nearby properties it is clearly important to establish that these are precisely the same as those which have been lost. I agree with you that such specification through example is by far the best way to indicate to the recipient of a notice exactly what is to be done to put right the breach without resort to tedious architectural specifications.

A house was converted to two flats about ten years ago and an enforcement notice was served requiring its conversion back to a single dwelling, which was complied with. A recent visit has revealed that the property has now been converted to four self-contained flats and the owner says this was done more than four years ago. Can you advice whether the council may take action against breach of the original notice, given that four flats have replaced two, and if not can the owner claim immunity under the four year rule?

The four year rule is applicable in the case of the creation of flats following a judicial hiatus in the early 1990s. However, if the flats do not have sufficient self-containedness to qualify them as "single dwellinghouses", the ten year rule will apply. Section 181 of the 1990 Act provides that an enforcement notice is a continuing obligation that is not discharged upon compliance. So if the original two flat conversion were later revived, the old enforcement notice would still bite. However, the four flat conversion you describe is likely to be a significantly different operation, and I very much doubt whether the original notice would now be of any effect against it.

On obtaining an LDC for the occupation of a property without complying with an agricultural occupancy condition should this be followed up with an application to lift the original condition? This is to safeguard the position if a different occupant unwittingly complies with the condition thereby reversing the benefit of obtaining the LDC.

It might be prudent to consider taking this safeguard, as compliance followed by a fresh breach could be subject to further enforcement action, although the likelihood of this happening is slight. On considering an application for the complete removal of the condition a local authority would have to consider whether there is a Circular 11/95 "need" for it any more in view of prevailing agricultural circumstances and the existence of the LDC.

I am looking into a site in Wales where the owners have lived and worked for over 10 years, in accordance with a temporary permission that has been renewed every 3 years.  The local planning authority has recently refused a further renewal and served an enforcement notice on the owners to remove them and their home from their land. Is this the ‘correct’ procedure and/or has there been any recent case law to suggest that there is a case for lawful use after such a long period of time?

I assume that this is a relatively new farming activity where the functional need for a new dwelling in the open countryside has been demonstrated as an exception to policies of rural housing restraint, but there have been doubts about the financial viability of the enterprise. In such circumstances, Assembly Government advice is that for the first 3 years the need should be met by a caravan or other temporary accommodation, so that the case for a dwelling in the longer term may be proven. I assume that the owners been unable to do this, despite successive extensions to the original temporary permission. The latter is both unusual and contrary to current national planning guidance. If the owners have been living in a caravan, they would only be able to establish a lawful use for their residential occupation had it subsisted continuously for a period of 10 years, without intervention and control by the local planning authority. That is clearly not the situation here. The serving of the enforcement notice might well therefore be justified but without the full facts of the case I cannot comment further. There is a right of appeal against such proceedings.

Part of a hedgerow had to be removed to create an access to a supermarket and was replanted as a condition of the permission. However, this has now died following landscape maintenance works when it was sprayed with weed killer. Is this a breach of condition and is the supermarket and/or contractor under a duty to replace it?

It depends on the wording of the relevant condition. If the requirement to replace the hedgerow forms part of a planting condition that follows the wording used in the model conditions set out in Appendix A of Circular 11/95 Use of Conditions in Planning Permissions, the owner of the supermarket will be required to replant the hedgerow within a specified number of years from the date of its original replanting. The circular suggests 2 years, although local planning authorities will often prescribe longer periods. Compliance is enforceable by a Breach of Condition Notice, against which there is no right of appeal.

Agents for proposed purchasers often seek a planning authority’s written confirmation that a new property has been built in accordance with the relevant planning permission. Normally, however, an authority will not have the resources to deal with these requests and may be worried that it could be estopped if it misses a problem. A solution might be to require the submission of an application for a Lawful Development Certificate affirming that the development is lawful because it accords with the relevant permission. What do you think?

This has been common problem for the reasons you say, although the judgment in R (on the application of East Sussex County Council) v Reprotech (Pebsham) Ltd 2002 made clear that estoppel no longer applies in planning law. This has now been replaced by the more difficult-to-establish principle of legitimate expectation, based on a representation allegedly made on behalf of a public body. However, your suggested solution is the most obvious response to the problem and has been the practice of one of the authorities for which I worked previously, for many years now.

My parish council has asked the planning authority to take enforcement action to secure the removal of fences that have been erected on a housing estate in contravention of open plan covenants imposed by the developer. The fences are 1.8m high and, while mainly running along the owners’ side boundaries, also project in front of adjacent properties and face the highway. The authority cannot find the 1970s original application file and claims that it is powerless to act. The developers have also refused to enforce the original covenant, suggesting that this should be done by the residents. What can we do?

The power to commence enforcement action is a discretionary one and should only be taken as a last resort when all else has failed and there is clear evidence that there has been a breach of planning control that has resulted in material harm. It is therefore necessary firstly to establish whether this has occurred, since a breach in any covenants imposed by the developers is not a material planning consideration. Rather, that is a civil matter between private individuals. Under Class A, Part 2, Schedule 2 of the GPDO 1995, householders can erect fences as permitted development, subject to certain limitations, such as restricting fences adjacent to a highway used by vehicular traffic to one metre above ground level. It is possible that these rights were withdrawn by a condition on the original planning permission, so if this can be found it should be checked. In addition, where a fence has been erected for at least 4 years without detection by the planning authority, it will become lawful for the purposes of planning control, and thus immune from enforcement proceedings. Where the planning authority is satisfied that any fences are unauthorised, it will almost certainly invite an application to regularise the situation, prior to considering what further action it should take. Otherwise, your only recourse would be to follow the developer’s suggestion. However, I have never come across an instance where this has happened.

A seasonal occupancy condition imposed on a 100 chalet holiday site has been breached for more than 10 years in respect of one of the units. If immunity from enforcement can be established, does this mean that all the other units on site benefit and can be lawfully occupied all year round? Alternatively, would each individual chalet owner have to apply for a lawful development certificate and argue a case on its merits?

Among other issues, it is necessary to consider the relevant planning unit and whether this has changed over the prescribed period. In my view it is likely that each chalet would now be regarded as individual planning units, akin to dwellings on a conventional housing estate. Each would therefore need to make a case for an LDC. The fact that one chalet might be able to establish immunity should not render the effect of the condition on the remaining chalets null and void, in my opinion. I draw support from a decision in Somerset in 1997 where an Inspector did not accept that a demonstrable breach of a condition in one particular meant that the condition in its entirety could no longer have any effect. However, in a 1989 enforcement appeal concerning a breach of a seasonal occupancy condition relating to caravans on a site in North Wales, an Inspector held that as the site was in a single ownership, subject to a single site licence and a planning permission that applied to the site as a whole, each individual caravan plot could not be treated separately for the purposes of planning control. The Inspector therefore upheld the notice in respect of the whole caravan site, which he concluded was the relevant planning unit.

Response

Regarding the query concerning whether one chalet on an estate used for more than ten years in breach of a seasonal occupancy condition effectively nullifies the condition for the whole estate an appeal reported in the Journal of Planning and Environmental Law bears out your view that it would not.

The case to which you refer (DCS No.033-682-014) involved a condition on a planning permission for a building in London to be used as offices and residential accommodation, which required that 19 car parking spaces be retained exclusively for its occupiers and users. The Inspector rejected the appellant’s claims that as 14 spaces had been used continuously by non-occupiers and non-users of the building for more than 10 years, the remaining five spaces could also be used by such persons, even though those spaces had not been continuously used over the same period. He concluded that the individual car parking spaces were definable constituent parts of the car park and that while the condition ceased to apply to 14 of the spaces, it remained in force in respect of the remaining spaces, which had not acquired immunity from enforcement action under the 10-year rule. His approach was subsequently upheld by the courts in St Anselm Development Co. Ltd. v First Secretary of State 2003.

The operator of a lawful business reclaiming various materials such as paper, metals, timber and car batteries lives in a former farmstead about a mile away. For over ten years he has regularly used a barn there for overflow storage of plant, equipment and the occasional vehicle associated with the business. As he has decided to relocate to larger premises, and no longer requires the barn in connection with his business, he is contemplating seeking a Certificate of Lawfulness for the barn’s existing use. I assume that the reclamation business is a Special Industrial Use. Since the barn has been used incidental to that use, provided the planning authority accepts that because of the ten year rule a lawful use has been established, would this be for storage or an industrial use?

It is difficult to comment on this without the full facts of the case and a clear understanding of the precise nature and extent of the activities involved. The special industrial classes B3 – B7 of the 1987 Use Classes Order were revoked in 1995. Such uses are now subsumed within Class B2 and it is possible that the lawful reclamation use would fall under this class. However, if operated as a scrap yard or involving the keeping of any notifiable quantity of hazardous substances, this would fall outside any specified use class and be considered sui generis. In view of the barn’s distance from the business site and that it does not fall within the same planning unit, I do not think that it could be argued successfully that its use is incidental or ancillary to the reclamation use, such that any industrial use could be established. Rather, as a matter of fact and degree, the lawful use is likely to be for storage purposes only.

Newly-built flats have been occupied without the car parking required by a condition of the permission, resulting in complaints of increased on-street parking. My department has asked for a Breach of Condition Notice (BCN) to be served requiring the provision of the approved parking, but not the cessation of occupation. This is a practice we have adopted in the past with no difficulties. However, our solicitor is concerned that a BCN would make the continued occupation of the flats unlawful, potentially breaching Article 8 of the Human Rights Act, and therefore recommends that future conditions omit the words "the dwellings shall not be occupied until". As most planning authorities adopt such wording in accordance with the model conditions in Circular 11/95, if the solicitor's view is correct, surely this has wide-ranging implications?

Article 8 of the Human Rights Act 1998 confers the right to respect for private and family life and for the home. In deciding whether there has been a breach of this Article, it would be necessary for the Court to consider whether a fair balance has been struck between the rights of the individual property owner and society as a whole: a claim can only succeed if the interference in the right of the individual concerned is not outweighed by the public interest. To date, this has happened very rarely. In my view, your solicitor seems to be adopting an over-cautious approach and I am not aware of any specific legal authority that would support the action recommended. Unless this is based on such a precedent, in my view you should continue to follow the wording suggested in the model conditions set out in circular 11/95 until such time as any revised guidance is issued to take account of any issue arising from human rights legislation. I think that to do otherwise would seriously prejudice your authority’s ability to secure compliance with this type of condition.

Response

I was interested in your response to the query relating to flats had been occupied without compliance with a condition requiring parking facilities prior to occupation. The question was asked whether a Breach of Condition Notice would breach Human Rights legislation. My understanding is that if a pre-condition has not been complied with, then this makes the whole development unlawful. It would therefore not be possible to serve a Breach of Condition Notice as the conditions themselves would no longer be enforceable. It would only be possible to secure compliance through an enforcement notice or injunction. In such circumstances the Human Rights abuse must rest with the developer, permitting occupation without compliance with a pre-condition, thus rendering those occupiers liable to such action.

My client erected a sales building more than four years ago and it has been used as such ever since. The planning authority has agreed that the building is lawful, as it is immune from enforcement under the four year rule. However, it claims that the use is not lawful and thus planning permission is required for this. Is it correct and do you know of any relevant case law or examples where a planning authority has taken enforcement action in relation to the use of an immune building?

There is apparently little guidance on this fundamental issue. Section 75 (3) of the 1990 Act provides that where permission for a building does not specify its purpose, that permission will include the use for which the building has been designed, but this obviously does not apply to unauthorised buildings. However, following Newbury District Council v. Secretary of State and Mallaburn 1995, it is clear that while an unauthorised use may be enforced against within the ten year period, even where being carried out within operational development immune from enforcement action by virtue of the four-year rule, the requirements of a notice are limited to restoring the land to its condition before the use commenced. Enforcement action cannot therefore require the removal of the separate but associated operational development that has taken place, in this case the erection of a sales building.

A clay pigeon shooting use has been operated over the permitted development limit at my client’s farm where there is a long history of conflict with the planning authority over various other uses that have taken place. The authority has taken enforcement action, stating that it was not minded to grant permission for the use subject to restrictive conditions to safeguard amenity. Its sole reason for doing so seems to be that, because of the past record of my client, any such conditions are likely to be breached and would therefore be ineffective. Surely this is unreasonable?

Circular 11/95 explains that conditions should not be imposed if they cannot be enforced, not that conditions should not be imposed if there is a likelihood that they might have to be enforced at a later date. There are, of course, adequate powers for planning authorities to act against future breach of conditions. PPG18 advises that if an unauthorised use could be permitted with suitable conditions it is not expedient to issue a notice before asking for a regularising application to be submitted voluntarily.  Although I do not know the planning facts of this case, it might well be that an inspector would allow an appeal if the use could be carried on subject to suitable conditions. In addition, there would be a good case for an award of costs on the basis that it was not expedient for the authority to have issued the notice in the first place.

We have recently obtained a lawful development certificate (LDC) for a dwellinghouse that was not built in accordance with the planning permission. Does this mean that the dwelling now has full permitted development rights? Development Control Practice says that the former DETR was apparently less inclined to the view that an LDC or immunity from enforcement confers any such rights, but there is no judicial authority for this. Has there been any more recent case law to update this view and does it apply equally to both certificates of lawful use and development?

The advice in the manual refers to Article 3 (5) of the GPDO 1995 which states that "the permission granted by Schedule 2 does not apply if a) in the case of permission granted in connection with an existing building, the building operations involved in the construction of that building are unlawful; b) in the case of permission granted in connection with an existing use." The wording was first introduced in a revision made to the 1988 GDO in 1992. Circular 17/92 stated that this change conferred any relevant permitted development rights to a use or operation the subject of an LDC. The same circular confirmed that a development which was immune from enforcement was also lawful. It therefore seemed reasonable to deduce that permitted development rights apply to development that is lawful by reason of being in possession of an LDC or because of immunity from enforcement. However, this advice in Circular 17/92 was not carried through into its successor Circular 10/97, and the resultant uncertainty continues to remain unresolved by case law. Nevertheless, it would appear that the editor of the Encyclopaedia of Planning Law is satisfied that once the restrictions imposed by Article 3 (5) are lifted with the passage of time, and the building operation or use becomes lawful under sec.191 of the 1990 Act for want of enforcement action, permitted development rights will become available.

A dwellinghouse was built without permission but the only harmful part is a rear roof extension. I therefore wanted to serve an enforcement notice requiring that only this part be removed and to attach a planning condition withdrawing permitted development rights as, without doing this, the house would be able to rebuild the extension and erect further additions. However, while inspectors often add conditions following a successful enforcement notice appeal under ground (a) in order to overcome identified harm, my authority’s legal department advises that it is not possible for a planning authority to attach conditions to an enforcement notice. Is this right?

The legal advice you have been given is correct. Circular 10/97 advised that in cases of "under-enforcement", involving the partial demolition of a structure, the planning authority should consider whether any permitted development rights would enable the structure to be subsequently replaced, possibly in a less acceptable way. However, there is a practical difficulty in taking such action as the remaining development for which deemed permission is granted under sec 173(11) of the 1990 Act, once an enforcement notice has been complied with, will not be subject to any conditions. Therefore, it might be more effective for the authority to invite an application for the retention of the dwelling, negotiate an acceptable revised scheme and condition the permission accordingly.

Response

I am currently dealing with a very similar situation.  Rather than attempting to negotiate an acceptable revised scheme, the submission of which is unlikely, I am considering under-enforcing and removing subsequent permitted development rights through the making of an Article 4 Direction.

Section 173A of the Town and Country Planning Act 1990, as amended, allows planning authorities to withdraw enforcement notices after they have been issued. But in my experience, enforcement notices are rarely, if ever, withdrawn by authorities upon compliance. They remain on land charge registers and therefore subsequent breaches can be prosecuted against. A solicitor recently suggested this was a wholly incorrect approach and that enforcement notices should be withdrawn upon compliance. Once this had been done, a repetition of that breach could not be enforced by way of the enforcement notice but a new notice would be required. My authority disagrees with the solicitor’s suggested approach but would welcome your clarification.

I can find no requirement for an authority to withdraw an enforcement notice following its compliance although, as you say, this can be done under section 173A of the 1990 Act. Where a notice no longer has any practical force, such action enables the ‘planning title’ of a site to be swept clean so as to satisfy potential lenders for loan security purposes or purchasers that they would not be liable to prosecution. This does not fetter an authority’s right to issue a fresh notice to remedy any further breach, so long as it is issued within the relevant time limits, which will re-start from the date of compliance with the notice. However, circular 10/97 appears to lend support to your authority’s practice of not withdrawing a notice by explaining that compliance does not discharge the notice and it remains in effect, unless it is withdrawn.

Response

Section 181(1) Town and Country Planning Act 1990 states "Compliance with an enforcement notice...shall not discharge the notice". As a result, the notice could be breached again and action taken against the fresh breach without recourse to a new notice. This is why notices remain on the land charge unless specifically withdrawn under the provisions of Section 173A.

Permission was granted to convert a barn to a dwelling with a condition removing all rights under Part 1, Schedule 2 of the General Permitted Development Order.  A kitchen extension of a size greater than the tolerances of the Order was later built without express permission about five years ago. Would the extension become lawful under the four-year operational development rule or would the ten-year breach of condition rule apply?

All operational development carried out in breach of a planning condition is subject to the ten-year rule. As that is not the situation in your case, the kitchen extension will be unlawful.

Response

I must respectfully disagree. The extension was not a breach of condition as such - it was entirely unauthorised operational development. There were no permitted development rights here, but even if there had been, it is well settled law that an extension in excess of the size limit is wholly unauthorised. The four-year rule in respect of operational development would therefore apply in the circumstances outlined here. The time limit for enforcement runs from the date the unauthorised development was substantially completed, which in the light of the House of Lords decision in Sage v SoSETR [2003] would be the date when it was effectively ready for occupation. If that is now more than four years ago, as the respondent seems to suggest, then the breach is now immune from enforcement and therefore lawful.

I think your advice is wrong. Firstly the questioner specifically stated that the kitchen extension was greater than the permitted development tolerances. It is therefore difficult to see how a condition removing permitted development rights could be breached by this development. Section 171B of the 1990 Town and Country Planning Act says that a breach of planning control consisting in the carrying out without planning permission of operational development is immune after four years. Sub-section (3) says in the case of any other breach of planning control no enforcement action may be taken after ten years. In my view any form of operational development is immune four years after it has been substantially completed. If that were not the case, bizarre results would flow. An extension that was built just within the tolerances could still be enforced against up to ten years after it was completed, whilst a larger extension would gain immunity after only four years.

If the condition were worded in accordance with the advice of Circular 11/95 it would prevent the erection of any extension, not merely one that would otherwise be permitted development. But having reconsidered the matter, I now accept that all operational development is subject to the four-year rule, regardless of whether it is in breach of any condition.

I have received conflicting advice on Breach of Condition Notices (BCN) issued under Section 187A of the Town and Country Planning Act 1990. On the one hand I am told that where a notice has been issued and complied with but, subsequently the same breach occurs, it amounts to a breach of the existing notice and therefore legal proceedings can be commenced on that basis. But on the other, I am advised that once the BCN has been complied with, it is no longer extant and that any later breach of the same condition would require the issue of a new notice, if expedient. Which is correct?

As with enforcement notices, a BCN is not discharged by compliance with its terms. It therefore remains in effect and subsequent breaches may be enforced against without the need for the planning authority to issue a new notice. The notice will only cease to have effect if it is withdrawn by the authority under section 187A or, by virtue of section 180, the condition is discharged or superseded by the grant of a subsequent permission, but only in so far as it is inconsistent with that permission.

I have been advised that where legal proceedings are commenced for non-compliance with a Breach of Condition Notice (BCN), the court is concerned solely with whether or not there has been a breach of the condition and the requirements of the notice. But this conflicts with the advice of others who contend that the planning merits of the condition, its wording and reason for imposition may also be considered. However, I take the view that the only way this could have been done was to have appealed against the condition, or applied for it to be varied or removed and, if necessary, appeal a negative decision, or to have sought a judicial review of the permission on the grounds that the condition failed the six tests in Circular 11/95. Please can you clarify this?

Jurisdiction of magistrates’ courts extends only as far has as considering ‘points of law’, such as the validity of the BCN and whether there has been a breach of the notice, including any defence put forward under section 187A(11) of the Town and country Planning Act 1990 that the recipient took all reasonable measures to secure compliance with the conditions specified in the notice or, that where the notice was served on him as landowner, he no longer had control of the land. The planning merits of the condition are therefore not an issue. It would clearly be inappropriate for magistrates to consider these and, as you say, there are various other mechanisms for dealing with this matter.

Permission was granted for an agricultural building in the green belt, which was built less than 4 years ago. However, it does not appear to have been used for its original purpose, except perhaps for a very limited time. Retrospective permission is currently being sought for a change of use to commercial storage, in line with government and development plan policy. A new build warehouse in the green belt would have been considered inappropriate development. But if a building is never used for its permitted purpose, is the building itself unauthorised or just the use? Could enforcement action be taken to secure the removal of the building or can it stay even if granted on false pretences.

While the courts have held that an unauthorised use may be enforced against even where being carried on within or on operational development benefiting from express permission or immune from enforcement action by virtue of the four-year rule, the steps that can be required by the notice are limited to restoring the land to its condition before the use commenced. In this case, enforcement action cannot therefore require the removal of the agricultural building, assuming that it is otherwise compliant with the permission, even if the justification for its construction has since been found to be flawed.

Section 193 (7) of the Town and Country Planning Act 1990 enables a certificate of lawful use (CLU) to be revoked at any time by a planning authority where it believes that material information was withheld or falsified in the application. However, an authority has advised that its decision is "final". Since there is no third party appeal right of appeal against the grant of such a certificate, how does this section work in practice?

Although there is no administrative right of appeal by interested persons against a CLU, it was held in R v Sheffield County Council, ex p. Russell [1996] and R v Kensington and Chelsea London Borough Council, ex p. Europa Foods [1996] that a certificate may be challenged by judicial review. In addition, where it appears from information that comes to light after the certificate was issued that it may have been obtained unlawfully, the authority may use its powers under Section 330 of the 1990 Act to investigate specified matters, as a precursor to prosecuting the applicant and revoking the certificate. But the authority must give notice under Article 24(12) of the General Development Procedure Order to the owner and the occupier of the land, and to any other person who will in the authority's opinion be affected by the revocation, in order that representations may be made. When giving such notice, the courts have held that the authority must identify precisely those statements in the application said to be false in a material particular.

I have two cases where permission has been granted but there are discrepancies in the approved plans. The first involves a barn conversion where windows on the floor plans are shown as wider than those on the elevations, and these plans are preferred by my client. In the second, one elevation of an industrial building is shown with an eaves height 0.5m higher than on the other elevation. The building has been constructed to this increased height and the planning authority has declared its intention to take enforcement action. Are you aware of any guidance or case law that deals with such discrepancies?

I am surprised that a discrepancy of just 0.5m in height of what must presumably be a relatively large utilitarian building is sufficient to have a discernible effect and to justify enforcement action, and the prospects for a successful appeal would appear good. This is especially so given that the building conforms to one of the approved elevations and this discrepancy was not picked up by the planning authority. Although I am not aware of relevant guidance or precedent on discrepancies between plans, advice on minor amendments may be helpful. Circular 31/92 says that the planning authority will have to decide whether a proposed variation is "significant enough" to require a fresh planning application. Some departures from approved plans may be considered not to be development either because they are de minimis or because they have no material effect on the external appearance of the building, and thus not development by reason of sec.55(2)(a) of the 1990 Act. Substantial errors in application plans may invalidate a permission, while a failure on the part of a planning authority to spot discrepancies has resulted in findings of maladministration in certain circumstances. It would be prudent to discuss the barn conversion with the planning authority with a view to reaching an agreement. However, in the apparent absence of any authority on the matter, whether the floor plans or the elevations should legally prevail will ultimately be for the courts to decide.

Response

Case law is of little value and provides conflicting views. However, my authority is currently dealing with a number of such cases. In one, some flats and shops were completed without the sound attenuation condition being discharged prior to commencement, and the building has now been sold. The developers were informed that the building is unauthorised and the condition, as worded, cannot now be discharged. Their response was to submit an application under Sec.73A to retain the building without complying with some conditions attached to the original permission. But my authority considers that, even if the application is successful, the permission has not been implemented because of the failure to discharge the condition precedent. It therefore follows that the application cannot have any effect on the building having been developed without authority. Any application must now be for full retrospective permission and include all the details required to be submitted and approved in the original application.

The question of enforcement is the real problem. Adopting the approach that the building is unauthorised because the condition precedent was not discharged means that the authority cannot serve a breach of condition notice because the requirement would need to be that the condition is complied with, and that cannot be achieved. An enforcement notice for the unauthorised development would appear to be the only option but what requirements could such a notice contain? The developer has now achieved the requirements of the condition precedent but cannot discharge the condition. The authority cannot force the developer to submit an application but similarly cannot reasonably serve an enforcement notice.

The case demonstrates that conditions precedent fail to control development and actually inhibit the authority's ability to take any action.  Taken further, the entire regime of conditions and limitations attached to permissions is devalued and undermined. Surely the legislation needs to reinforce the strength given to conditions which, after all, exist only in place of a reason for refusal?

Further response

With regard the comments on the problems of enforcement following failure to comply with conditions precedent assuming the flats and shops were not built overnight, or even within a month or six, the time for enforcement was on or soon after discovery. Is this not simply a case of trying to close the stable door after the horse has bolted?

Regarding the reply concerning the query about enforcement action when a condition precedent has not been complied with, there are four possible courses of action:

1. If no harm results from non-compliance with a condition precedent, no action need be taken. For example, if a condition relating to a domestic extension requires approval of materials before commencement and these have not submitted, but acceptable materials have been used, this would normally be the best way forward.

2. In some circumstances under-enforcing, effectively granting a new conditional permission will be appropriate. For example, where an A3 use has been approved subject to conditions requiring approval of an extract duct and restricting opening hours, but a satisfactory duct has been installed without approval, under-enforcement will be necessary to ensure that the opening hours’ restriction bites.

3. Full enforcement against the development will in many cases be appropriate. For example, when a condition requiring the approval of materials on a building before commencement and totally inappropriate materials have been used, enforcement requiring the demolition of the whole building would be necessary.

4. Finally, in some circumstances enforcement may be a lever to resolve a matter. If a condition precedent requiring approval of materials is imposed and the bricks used on the walls are satisfactory but the roofing material is inappropriate, the objective would be to achieve replacement of the roof. If negotiations cannot achieve this, the planning authority may have to serve an Enforcement Notice requiring the demolition of the whole building. This would hopefully spur the owner to submit satisfactory materials and remedy the breach, so the building would be authorised and the Enforcement Notice would then cease to be effective. Obviously a reasonably long period for compliance would be necessary in such circumstances to allow time to resolve matters.

I agree this is an area where the law needs reviewing. When conditions precedent are not complied with, not only are Breach of Condition Notices inappropriate, but also there can be other serious consequences. For an example, an agricultural occupancy condition might be of no effect because someone overlooked the need to get a roof tile sample approved.

My council is considering enforcement action against an unauthorised dwellinghouse on farmland, occupied continuously for nine years. As it was erected over four years ago, the building itself is lawful under sec 171B of the 1990 Act while, in my view, the use of its curtilage attracts the ten-year rule. However, since the Act says that the four-year rule applies only where there has been a "change of use of any building to use as a single dwellinghouse", does this extend to a building has always been used as a dwelling? As there has been no change of use of the building itself, but a change of use of the land on which it is sited, should the ten-year rule apply? The council is considering serving a notice where the alleged breach is the use of the land and building for non-agricultural use. Is this the correct approach?

I am not aware of any appeal or court case that has considered this issue, probably because it is very rare for an unauthorised new dwellinghouse to be built without escaping the notice of the local planning authority. But it would appear that the four-year immunity rule has been applied generally to any use of a building as a single dwellinghouse, rather than being restricted to such a use that has arisen as a consequence of a change in use. In such instances, the immunity period runs from the date of the new dwelling’s substantial completion. Assuming that this is the correct approach, following the line taken in Burdle v SoS [1973], where it was held that all land in single occupation and used for the same purpose should be treated as a single planning unit, if the curtilage here has formed an incidental part of the use of the new building as a single dwellinghouse, the four-year rule should apply. I therefore think your approach is flawed. However, readers’ views are invited.

Response

The key point here is that the use as a dwelling, as well as the structure itself, is immune from enforcement after four years from the substantial completion under section 171B(1) of the 1990 Act, so that the issue of change of use under section 171B(2) or (3), which the council is uncertain about, does not arise.  It would be ludicrous to suppose that the legislators had meant that a building designed as a dwelling could be lawful, but its use as such not lawful. That would mean that the dwelling could be inhabited by pigs but not people. However, even if one were to suspend disbelief, and assume that the law makers had intended this, then the presumed use of the building would have remained agricultural immediately after its completion. But then on actual occupation as a dwellinghouse, an existing building would have changed its use to a dwellinghouse, which would gain immunity after four years under section 171B(2). There is nothing in the clause to say that the existing building must have been in existence for a minimum period. It seems quite clear that, in the case of use as a single dwelling house, whether newly built or by change of use, the intention of the law is to provide immunity after four years.

Permission was granted by my authority for a rear extension to a detached chalet bungalow to provide additional accommodation at both ground floor level and within the pitched roof space above.  However, a single-storey flat roof extension has been built instead, but on the same footprint and with openings as shown on the approved drawings.  Since this exceeds the volume of that permitted by Class A Part 1 Schedule 2 of the GPDO 1995, does the extension require retrospective permission, as it does not accord with the approved plans, or since the permission has been partially implemented, is it lawful?

As a flat roofed extension has already been built, I do not think it can be argued successfully that this constitutes a mere commencement of development and thus represents partial implementation of the approved pitched roof scheme, enabling its completion at a later date. Rather, it is clear that a different development from that which was authorised has been completed. The issue is therefore one of assessing whether the change in external appearance is material, but may be treated as a minor amendment to the existing permission, or whether it requires a fresh application. Although the planning authority has discretion in such matters, in my view the variation here could not be considered de minimis and, in accordance with the advice of Circular 31/92, would be "significant enough" to require a new permission. However, if the owner can demonstrate that the extension was completed at least four years ago, then it would be lawful and immune from local authority intervention in any event.

Airline A and Airline B use the same area of land for the landing and taking off of aircraft.  Airline A decides to submit an application for a Certificate of Lawfulness (LDC) under sec191 of the 1990 Act. Would Airline A be required to provide information relating to the use of the land by Airline B, given that what Airline A is applying for relates to the use of the land generally and not to its own exclusive use?

Sec191 of the 1990 Act provides that if any person wishes to ascertain whether any existing use of buildings or other land is lawful they may apply for this purpose to the local planning authority specifying the land and describing the use, operations or other matter. In this case it would be necessary for Airline A to demonstrate that, on the balance of probability, the airstrip use has existed without material interruption or intervention by the planning authority for at least 10 years prior to the application, and is thus is immune from enforcement proceedings. The purpose of the LDC is to confirm the lawfulness of the use of the land rather than its use by a particular operator. While in order to achieve this it might be sufficient for Airline A to rely solely on the evidence of its own use, Airline B would need to be identified as another party with an interest in the land. But while evidence of the latter airline’s use might also be desirable, it does not necessarily follow that it would be required and there is no compulsion for Airline A to provide details of this. Relevant advice on LDCs is given in Annex 8 to Circular 10/97.

A substantial freestanding brick building with a tiled pitched roof was permitted by a planning authority for use as a stable. It is prominently located in a small field, within an Area of Outstanding Natural Beauty. Since its completion, the building has never been used for its intended purpose, nor has the field ever been occupied by a horse. The owner has created an upper floor in the roof space, but with no external alterations, and has erected a small garden shed nearby. Flowers have been planted around the two structures, which now have the appearance of a small cottage and outbuilding in a rural setting. Following enquiries by the local authority, the owner has admitted that the structure is being used as a summer chalet for his own recreational use. Is this a breach of planning control and could the authority take enforcement action to require its removal?

If it can be demonstrated that the building has been adapted for use as a single dwellinghouse and occupied as such without a material interruption or intervention by the planning authority for at least four years, it will be immune from enforcement action. Although the circumstances, nature and extent of the chalet use are not known, I suspect that is not the case here. Proceedings may be instituted to secure the cessation of any domestic or recreational use not associated with the stabling of horses and the removal of any internal or external works that have facilitated that use. But enforcement action is limited to remedying the breach of control. That means that if the stable otherwise accords with the permission in terms of its scale, siting, design and external appearance, action must stop short of requiring its removal.

My client built an extension that was not in accordance with a permission. A subsequent application to retain the extension was refused and an appeal dismissed. A revised application to retain the building in a modified form, through partial demolition and making good, was recently approved. I had expected the permission to include a condition requiring the modification works to be done within a prescribed period, similar to an enforcement notice, but instead there is only the standard time limit requiring the development to be commenced within 5 years. Can the planning authority now legitimately issue an enforcement notice in relation to the unlawful element of the works, as to do so would effectively nullify the value of the 5 years given to commence the work by the condition? If not, does this mean that my client can delay commencement of the works and then claim immunity under the 4 year rule?

The new permission does not authorise the unlawful element or specify a deadline for its removal. The condition merely defines the life of the permission for the revised proposal. Consequently, the continued retention of the unlawful element remains unauthorised and would be in breach of both the original and the subsequent permissions.  I do not think therefore that the condition fetters the planning authority from serving an enforcement notice to require that works be carried out to ensure that the extension is demolished or modified to comply with either of the permissions.

In 1979 permission was granted for a golf club extension to provide guest bedrooms. A small part of the extension was later built, within the permission’s 5 year lifetime. However, the applicant failed to discharge a condition requiring that details of a landscaping scheme be submitted to and approved in writing by the planning authority. The applicant now wishes to continue building the rest of the hotel accommodation. In view of the non-compliance with the landscaping condition does he still have a valid permission?

Works carried out in contravention of a planning condition of whatever type are a breach of planning control. They cannot therefore constitute a start to development for the purposes of Section 56 of the Town and Country Planning Act 1990 and keep the permission alive. However, in Leisure Great Britain plc v Isle of Wight Council [1999] the courts held that there are four exceptions. These are where:

•    the developer has done everything practicable to meet the condition;

•    approval has subsequently been given so that unauthorised work carried out within the time limits was made lawful;

•    the planning authority has agreed that development could start without complying with the relevant conditions; or

•    the condition had been complied with but the procedural formalities, such as written notification of the planning authority’s approval, had not been completed before work started.

Thus unless one of these exceptions applies in this case, the development will have been unauthorised and the permission will have lapsed. A case from Kent (DCS No: 100-037-938) and another from Bedfordshire (DCS No: 056-316-837) considered similar circumstances.

As a Councillor I have been advised that when considering whether an unauthorised development has become lawful under the four and ten year immunity rules, the clock only stops ticking once an enforcement notice has actually been served. This cannot be right. Take, for example, an unauthorised development that is brought to the planning authority’s attention after 3 years and 9 months. The authority has insufficient knowledge of the situation to issue a stop notice or take out an injunction, so challenges the developer within the relevant time periods. However, as the developer knows the rules, he then prevaricates and delays his response until the time limit has passed and the development has gained immunity. Surely it is the date that the developer is first challenged rather than the issue of an enforcement notice counts?

Section 171B of the 1990 Act provides that no "enforcement action" may be taken after the prescribed time limits. Section 171A(2) makes it clear that for the purposes of the act it is either the issue of an enforcement notice or  the service of a breach of condition notice that constitutes taking enforcement action. Therefore the date when a developer is challenged over an alleged breach in planning control does not, as you put it, stop the clock ticking. The effect of section 191 of the Act is that if a planning authority fails to take enforcement action before the expiry of the prescribed time limits and the development is not in contravention of any enforcement notice which is in force it will become "lawful". Immunity from enforcement action is explained in Annex 8 of circular 10/97.

Despite submitting samples of the materials for a proposed mixed-used development outside a conservation area, six months later the permission includes a condition requiring that these be submitted to and approved in writing by the local authority before development commences. The authority's design officer is apparently concerned with the upper floors and has requested further information on various matters of detailed design that are not related to the material samples. Given that full permission has already been granted, can he do this? Work has already reached above ground level and the resulting delay is costing my client money. Can he ignore the authority's request and if he does so, can the authority issue a breach of condition notice?

Advice on conditions is given in Circular 11/95. While the authority has already been provided with samples and on the face of it the condition seems unreasonable, presumably the authority is not satisfied that the proposed materials are acceptable. However, unless the condition expressly requires the submission of further details, then this aspect would not be enforceable. As a condition precedent, any breach of this would render the development unlawful and this would need to be remedied by an enforcement notice rather than by a breach of condition notice. I do not think it would be prudent for your client to ignore the condition and a confrontational stance is likely to result in further delay. I would therefore try to negotiate a compromise solution.

What is the correct position on permitted development rights for dwellings following the grant of a lawful development certificate (LDC)?

Following changes to the General Development Order 1988, Circular 17/92 made clear that an LDC confers relevant permitted development rights. While that advice was not carried forward into subsequent guidance, the changes on which it was based are repeated at Article 3(5) of the General Permitted Development Order (GPDO) 1995. The effect is that where an existing building or use is unlawful, it cannot rely on any permission granted by the GPDO. As soon as a development becomes lawful, permitted development rights will apply. While I cannot find a court case where this has been debated, the legislation seems clear. This view is supported by a decision from Hertfordshire in 2004 (DCS No: 049-143-308) and the Encyclopaedia of Planning Law.

Retrospective permission was granted to the developer of a housing scheme to build a garage on an area originally approved for visitors’ parking. Although the authority maintained that this would result in only one space being lost, which it considered acceptable, I argue that three spaces have been lost because the garage encroaches onto two other spaces. Following a complaint by my client, the local government ombudsman found the authority guilty of maladministration, but only because officers and not a committee determined the application. The ombudsman accepted that the decision would have been the same because the committee could not have taken the encroachment into account. The loss of these spaces has had a significant effect on residents’ amenity but the authority refuses to take enforcement action to remedy the encroachment. Is there any way it can be required to do this?

It is not clear why the encroachment of the garage was not treated as a material consideration. Paragraph 5 of PPG18 advises that planning authorities have discretion to take enforcement action when they regard it as "expedient". There must be clear evidence of both a breach in planning control and substantial harm. An authority cannot be required to commence enforcement proceedings. However, PPG18 warns that the ombudsman has held in a number of investigated cases that maladministration arises if an authority fails to take effective enforcement action that is "plainly necessary". In the circumstances you describe, it would appear that the ombudsman did not consider this to be the case or recommend accordingly. In the absence of such a conclusion, there seems little reason why the authority should take further action.

My client owns a pub that was permitted more than 20 years ago subject to a condition restricting opening hours. This has been breached continually. The local authority recently issued a lawful development certificate for the pub’s use during specified hours outside those mentioned in the condition. I argue that this decision confirms that the condition no longer bites and that the pub can lawfully open all hours. However, the authority maintains that it can only open between the hours specified in the certificate. What is your opinion?

It does not follow that if a condition has been breached in part for the full duration of the immunity period it falls completely. In a case from Somerset in 1997 (DCS No: 049-728-951), an inspector considered an appeal concerning a lawful development certificate and an enforcement notice in respect of a lorry repair garage where a condition restricted working hours to between 8am and 6pm on weekdays and 8am to 1pm on Saturdays and prohibited any Sunday use. While there had been night working on three weekdays and some additional time outside the hours set for Saturdays, there was no evidence to suggest any breach of the Sunday working part of the condition. The inspector refused to accept that a breach of the condition in one particular was sufficient to regard the condition in its entirety as no longer having any effect. He issued a certificate specifying the precise additional hours that could be worked. The authority in your case appears to have followed a similar course. Support for this approach may be taken from the judgment in R ex parte St Anselm Development Company Ltd v First Secretary of State and Westminster City Council [2003], as explained at 4.5352. I agree with the planning authority.

A condition of a permission for a house extension requires a parking space "of minimum length 4.8m" in the front garden. The applicant's agent confirmed that this was feasible, but it transpires that the garden is just 4.5m deep. If I serve a breach of condition notice requiring a space 4.8m long, the front wall of the house would need to be demolished. Can I under-enforce by serving a notice that requires only a 4.5m long space or is the council bound by the precise terms of the condition?

By virtue of Sec. 187A(2) of the Town and Country Planning Act 1990, a breach of condition notice must "secure compliance" with the condition specified in the notice. The opportunity to specify lesser steps is not available under this procedure. If your authority is willing to accept a shorter parking space, it should negotiate with the occupier and perhaps request an application for the condition to be varied.

The owner of a "horsiculture" holding had temporary permission for a mobile home. Shortly before the end of ten years following the expiry of the permission, the local authority discovered that it had lapsed. It took no enforcement action but suggested that a new temporary permission be sought. This was granted after the tenth anniversary following the lapse of the original permission. The owner continues to live in the mobile home. As the new permission contains some unacceptable conditions, is it possible to argue that it has not been implemented?

If the mobile home had acquired immunity from enforcement by having been occupied without material interruption for at least ten years from the date that the first permission lapsed, the new permission and any conditions attached to it would have no effect, in accordance with Newbury District Council v Secretary of State for the Environment [1990]. The lawfully accrued use could only be lost if it had been abandoned, a new planning unit had been formed or a material change of use occurred. I would consider applying for a lawful development certificate.

My national park authority takes the view that motorhomes are caravans for the purposes of planning control. However, land that is subject to an extant enforcement notice preventing its use as a touring caravan site has been extensively used by motorhomes for the past two years. The operator has displayed a notice at the site entrance saying "only motorhomes with tents for sleeping". The site owner’s agents argue that if the motorhomes are used merely for transport, and their occupiers use the tents for human habitation, they cannot be regarded as caravans. We wish to prosecute the site owner for breach of the enforcement notice. What is your advice?

In Backer v Secretary of State for the Environment and Wealden District Council [1983], it was established that a motorhome falls within the definition of a caravan in the Caravan Sites and Control of Development Act 1960 and the Caravan Sites Act 1968 as amended. The difficulty in this case lies in correctly identifying the nature of the breach. If the motorhomes are not used for human habitation but are merely stationed on the land, it may be that what has occurred merely amounts to their unauthorised parking. Irrespective of any conclusion on that issue, a material change of use to a camping site will have taken place. While these activities may amount to a breach of planning control, it is debatable whether they contravene the existing notice because that relates to use of the land as a touring caravan site. To be certain of a successful outcome, I would consider serving a temporary stop notice and a new enforcement notice attacking the camping use. Since tents are clearly critical to the continuation of the existing activities, any doubt over the lawfulness of the use of the motorhomes will be immaterial.

I recall being told that under-enforcement is not possible with a breach of condition notice (BCN). Although a close reading of the legislation appears to support this interpretation, I can find no relevant case law. Does it follow that where only Part of a condition has been breached, for example an element of a mission statement, the notice must seek to enforce the entire condition rather than just the element concerned? Where a Grampian condition is involved, must the notice require reversion to the pre-existing situation, effectively rendering the use of the power unreasonable?

In accordance with Sec. 187A(2) of the Town and Country Planning Act 1990, a BCN must "secure compliance" with the condition specified in the notice. Therefore the opportunity to under-enforce and specify lesser steps to be taken is not available where compliance would result in something that falls short of what the condition seeks to achieve. But since a BCN must specify the steps that the authority considers ought to be taken to secure compliance, or the activities that the authority thinks ought to cease, all that it need do is to frame the notice with regard to that element of the condition that has been breached. As a Grampian condition is a "condition precedent", any development carried out without complying with its terms will be unauthorised in its entirety. Rather than serve a BCN, the authority should consider whether it would be expedient to issue an enforcement notice that is directed against the whole development.

My client obtained planning permission for a new "barn", part as a dwelling (without occupancy condition) and part in connection with a smallholding. Due to a number of circumstances the smallholding has not been successful and the whole building is now in use as a single dwelling. The LPA takes the view that the breach (if one occurred) did not in itself create a single dwellinghouse and therefore the ten year rule applies. Is this a correct analysis?

Section 171B(2) of the Town and Country Planning Act 1990 states that the four year rule providing immunity from enforcement applies to the change of use of any building to use as a single dwellinghouse. The issue here is whether a lawful dwelling may integrate an adjoining non-residential use, and the enlarged accommodation benefit from the section. It can be argued that the four year rule is not applicable as the breach in this case is not a change of use to a single dwellinghouse, as defined in Circular 10/97. Rather it is a change of use from agriculture to ancillary residential accommodation. The Court of Appeal decision First Secretary of State v Arun District Council and Karen Brown 10/8/2006 is worth noting. Here, the point was made that the legislative rationale behind the stipulation of a shorter period for establishing immunity in the case of single dwellinghouses was to avoid personal hardship, possibly resulting in the loss of a home, when the breach of planning control may have occurred up to ten years before.  This would hardly be the case where, as in this instance, the occupation of the original house as permitted would remain unaffected by any possible future enforcement action. Any alternative views from readers will be welcome.

Section 171B(2) of the Town and Country Planning Act 1990 states that the four-year rule includes the change of use of any building to use as a single dwellinghouse. However the Town and Country Planning (General Development) Order 1995 (GPDO) states that a dwellinghouse does not include a building containing one or more flats, or a flat contained within such a building. The interpretation of flat does refer to ‘the purpose of a dwelling’.  As the 1990 Act and the GPDO are dealing with two separate issues it would appear that that the four-year rule is correct when dealing with an unauthorised change of use to flats.

It is always important to distinguish definitions given in statutory instruments as these do not bind primary legislation. It is established law that the four- year rule applies to the creation of a single dwellinghouse, whether this takes the form of a separate unit in the form of a house, or whether it is a flat created within another building. A common problem lies with establishing whether the unauthorised unit or units created are indeed separate dwellinghouses in terms of their facilities and degree of self-containedness, and the advice in Circular 10/97 paragraph 2.81 is relevant . If they are not the ten-year immunity rule will apply.

A member of the public has a complaint regarding the retention of a large-scale industrial building in a remote rural area of north east Scotland. Planning permission was granted for this building and the use of the adjoining land for the fabrication of oil pipelines. This was time limited and required the removal of the building and the reinstatement of the land by a set date. That date has now passed and the building on the site remains and is being used for agricultural purposes associated with the adjoining farmland. Under section 26 of the Town and Country Planning (Scotland) Act 1997 the use of land or buildings for agriculture does not fall within the definition of development and therefore does not require planning permission. This being the case, is the fact that the former industrial site and building are now being used for agriculture negate the requirement to demolish the building and reinstate?

I take it that the building is not one that is visually appropriate to a rural area and was only permitted because of short term economic need. My view would be that the continued presence of this building is still in breach of planning control and enforcement action taken against it would be valid. However, this is a very unusual situation and I cannot identify a case that substantiates this position. Does any reader have a thought on this?

I wish to know whether a small unlawful change of use can nullify a lawful use begun by virtue of a planning permission or the passage of time.  An example would be where a flat was used as an office without the landlord’s consent or knowledge. If this is the case it could cause a myriad of problems and mean that lawfully obtained uses could be lost. The floodgates could be opened to quite unreasonable enforcement actions.

Over the years the courts have pontificated that when a lawful use has been superseded by another, any rights to revert to that lawful use may well be lost. This has even been held to be the case where there is an existing planning permission to which reversion is required. The authority normally quoted is Cynon Valley Borough Council v State for Wales [1986]. Here, it was held that once a permission referring to a material change of use has been implemented, that permission was spent. It only authorised a single change of use, and could not be of continuing effect allowing a recommencement later.  Other court cases have shown that a use which was previously lawful because of the passage of time, or existence on the ‘appointed day’, may be abandoned for a number of reasons. One of these is the intervention of another use. This has even been held to be the case where a Lawful Development Certificate (LDC) is in being, as confirmed in M & M (Land) Ltd v Secretary of State for Communities and Local Government [2007] Ltd. Here, an LDC had been issued for a scrap yard use in 1992. However, when permission for resumption with a new building was sought after a period of non-use, an inspector reasoned that the use had been abandoned in the interim.  You cite an example where an intervening change of use or period of nil use has been temporary in nature and there has been no long-term intention to abandon the original use. In this type of case I feel that as a matter of fact and degree reversion may well not be held to create any material change, and thus no further permission will be necessary. Of course in the circumstances where enforcement action is successfully taken again the intervening use, section 57(4) of the Town and Country Planning Act 1990 allows for reversion to the immediately prior lawful use.

What is the timescale for taking enforcement action against a breach of an Article 4(2) Direction? For example if a householder replaces windows in the front elevation of a dwellinghouse in breach of the requirements of a Direction, do the works become immune from enforcement action after 4 years or would the ten year rule apply as a breach of condition. Alternatively would the period for enforcement be open, as with listed buildings?

An Article 4(2) Direction does no more than take away certain permitted development rights, normally Part 1 householder rights, within a particular conservation area. Thus, if development takes place in such an area without permission, which but for the Direction would be permitted development, it is subject to the same enforcement powers as any other unauthorised development.  In the example you quote, the insertion of new windows in a house situated in an area subject to an Article 4(2) Direction would not be permitted development as an alteration to a dwellinghouse. If the windows are  determined to be operational  development  having a material effect on external appearance, as per section 55(2)(a) of the Town and Country Planning Act 1990 it may be appropriate for a local authority to take conventional enforcement action if it is satisfied that the windows have been in place for less than four years. The absence of immunity periods from listed building enforcement law has no relevance.

My neighbour is about to apply for a Certificate of Lawful Development for touring caravans and motor caravans. As far as I can see the only problem he has in showing ten years continuous use is that during 2001 there was an outbreak of foot and mouth disease. Can you advise?

In an appeal case from Wales (DCS No.100-042-650) where ten-year rule immunity was argued in respect of a motor cycling use at a farm, an inspector noted that no activities took place on the land for a period of 18 months due to foot and mouth restrictions. It was reasoned that although this break was out of the control of the appellant and he intended to resume the use, an interruption of such significance was sufficient to stop the accrual of immunity. However, the inspector noted that the courts had determined that if a material change of use had achieved immunity before a break in a use, that break did not constitute abandonment. In the event this was found not to be the case and the refusal to grant a certificate was upheld. Other appeal cases from various areas of development control have shown that the periods for which breaks in use of land have been held to be significant for planning purposes vary a great deal according to the nature of the break, the reason it occurred and the robustness of any intention to resume, In the case cited I have the feeling that the inspector’s ruling was a little hard given that the movement restrictions imposed due to the disease were not of the appellant’s making, and the decision may well have gone the other way had the period of non-use been a bit shorter.

Does temporary permission cancel out an enforcement notice for the same development on the same site?

Section 180 of the Town and Country Planning Act 1990 states that if after the service on an enforcement notice planning permission is granted, that enforcement notice shall cease to have effect in terms of any requirement to demolish buildings or discontinue a use. As the section does not say that planning permission cancels an enforcement notice in such circumstances, it would remain in effect. However, when the temporary permission expires the breach of control would then be failure to demolish the building, or to cease the use, in contravention of the limited period condition. So a new enforcement notice would be necessary to pursue further breach of control.

I own a detached piece of unfenced land which was conveyed with my house in 1961 when it was designated "garden ground". At that time the land was grassed, in the form of a lawn rather than wild grass, but there was nothing further to indicate that the previous owner had used it as a garden. A planning officer now claims that as I can’t prove that I have used the land as a garden in the intervening period, it has now reverted to agriculture.  Is he wrong in this assertion, and have I a case to claim that the land is part of my curtilage? I do not really want to have to apply for planning permission and pay a fee to use the land as a garden.

The plan you supplied shows that the plot concerned is to other side of an accessway running to the rear of your house which other householders use in common. The land is not immediately to the rear of your existing garden but is offset by 40 metres. In planning law it is possible for the use of land to be abandoned so that to resume its original use would be a ‘material change of use’ requiring planning permission. In this particular instance there would seem to be a reasonable case to be argued for ‘abandonment’ as the plot is physically separate from your main residential curtilage and there has been no evidence of domestic garden use for almost 50 years. In your favour is the historic linked ownership. To help resolve this matter a cheaper course of action rather than applying for planning permission would be to ask for a Lawful Development Certificate for Proposed Use or Development. The fee for this is half that for a conventional planning application. Alternatively, you could simply fence the land, for which no express permission is required, restore the former lawn, and wait to see if your local authority cares to serve an enforcement notice. In both cases there is a right of appeal to the SoS.

A house departs from a permission because it is sited differently, has more windows and the site area has changed. A condition restricts windows on one elevation to obscured glass. I argue that the building has been built without permission and therefore none of the conditions applies after four years. Is the test simply whether at the time of construction the authority could have taken enforcement action and, if so, does that enable a claim for immunity?

The general rule, established in Handoll & Suddick v Warner, Goodman & Streat, Cook and East Lindsey District Council [1994] and explained in a footnote to paragraph 29 of Circular 11/95, is that where operational development is carried out in a way that differs materially from approved plans it amounts to development without permission. Thus any conditions imposed on the permission for those operations are unenforceable because the particular permission has not been implemented. The Handoll test was followed in Wycombe District Council v Williams and Others [1995], where the court indicated that it should not apply where differences between the approved and existing development fall within the normal tolerances and minor variations inherent in their laying out and construction. In your case, if it is deemed that the differences between what has been approved and built are material, the house will have been built without permission. So none of the conditions attached to the permission will be effective. But after four years, no enforcement action can be taken against the dwelling.

A block of live-work units has been occupied exclusively for residential purposes in breach of a planning condition that restricts their use to live-work units with certain areas specifically identified for work Activities. If the local authority takes enforcement action, would the four-year rule concerning change of use to residential take precedence over the ten-year rule that applies to a failure to comply with a condition?

In First Secretary of State v Arun District Council and Brown [2006], the Court of Appeal held that where a breach of a condition involves a change of use to a single dwellinghouse, the four-year rule applies. However, for the purposes of section 171B(2) of the Town and Country Planning Act 1990, a change of use to a single dwellinghouse does not need to be material. Any change of use, including one that does not involve development, is sufficient to trigger the four-year time bar. Given that a live-work unit does not fall within class C3 of the Use Classes Order 1987, there is little doubt that in this case a change of use to a single dwellinghouse has occurred and the change is material. The relevant immunity period is therefore four years. Although it pre-dates the Arun judgment, my advice is supported by a decision from London in 2000 (DCS No.036-432-153).

An individual has built a track across a common and it may be necessary to issue an enforcement notice, requiring its removal. We have a list of about 150 people who have commoners’ rights. We will serve copies of the notice on the perpetrator, and on the registered owner but do we have to serve copies on the commoners? Your advice please? PL.

Section 172 of the Town and Country Planning Act 1990 (as amended) says an enforcement notice must be served on the owner and occupier and "on any other person having an interest in the land, being an interest which, in the opinion of the authority, is materially affected by the notice". A commoner’s interests could be affected by such a notice, e.g. if they have grazing rights they may regularly use this track to bring animals onto the land. Though since the Planning and Compensation Act 1991 there is less scope for enforcement appeals being allowed on technicalities, in this case there would seem a risk that a commoner might feel prejudiced by failure to serve. To avoid wasted resources on a lost appeal, it would seem advisable to serve notice on the commoners therefore. JH.

My authority refused a certificate of lawfulness for existing use or development (CLEUD) application for use of an outbuilding at a dwelling as an independent holiday let on the basis of a lack of evidence. We then served an enforcement notice requiring cessation of the use, allowing a lengthy period before the notice came into effect so that the applicants could resubmit the CLEUD claim with the further evidence required. No further application was submitted and no appeal was lodged against the enforcement notice. After the notice came into effect, an appeal against the initial CLEUD refusal was lodged. The appeal paperwork was accompanied by the additional information that we had previously requested, showing that the applicants had used the unit for more than four years. Can an inspector now grant the certificate on appeal, considering that a valid enforcement notice has now taken effect? SW.

Under section 191(2) of the Town and Country Planning Act 1990 as amended, a CLEUD cannot be granted when there is a valid enforcement notice in place, so the appeal would not seem to have any prospect of success. Having said that, your authority has two courses of action open to it. It could insist that the enforcement notice is complied with and take out a prosecution if necessary. Alternatively, it could take the view that the notice became effective through a technicality on the basis that the use was immune under the four-year rule, and use its discretion under section 173A of the act to withdraw it. JH.

I have to serve an enforcement notice on an incomplete extension to a garage used for storage. The walls have been constructed, but it has no roof.  Construction ceased about a year ago.  If the extension were completed and put to its intended use, this would represent a material change of use. As the extension is incomplete, however, it is currently not used for any purpose.  Both the extension and its intended use are considered unacceptable in planning terms. Should the enforcement notice define the breach as simply unauthorised operational development or should it define the breach as an unauthorised material change of use involving operational development, albeit the use is not active? GL.

You cannot enforce against a change of use that has not yet occurred. In drafting the notice, I would define the breach in terms such as "erection of extension to garage used for storage purposes". If there are objections to the intended future use, e.g. the amenity of nearby residents being harmed, I would include these in the reasons for serving the notice in addition to any planning objections to the building itself. JH

The new General Permitted Development Order Amendment requires first-floor side windows to be obscure glazed.  If a development is built without complying with this requirement, would the appropriate means of enforcement be a breach of condition notice or an enforcement notice seeking to "under enforce"? DR.

An enforcement notice would be necessary. Applying the principles of Garland v Ministry of Housing and Local Government 1969, in theory one could require the demolition of the extension if ordinary windows were used, but in reality "under enforcement" would be the reasonable option. JH

Response

As an enforcement officer I disagree with your reply to DR. I suggest a breach of condition notice quoting a breach of permitted development A3 'B' (i) would be more appropriate than an enforcement notice. RC.

Further Response

A breach of condition notice can sometimes achieve quicker compliance than an enforcement notice. Under section 87AA of the Town and Country Planning Act 1990, as amended, however, a breach of condition can only be used on a conventional planning permission, not one granted by the General Permitted Development Order.  JH 

Further Response

In DC Forum of 31 October there is a typo in that you refer to s87A, Town and Country Planning Act, 1990 whereas Breach of Condition Notices (BCNs) are created by s187A. However, JH also states that BCNs can only be used on a conventional planning permission, not one granted by the GPDO. Sub-section 1 of s187A applies BCNs to planning permission for carrying out any development of land that has been granted subject to conditions. Sub-section 13 states that "conditions" includes limitations. I am unaware of any qualification restricting the use to non-GPDO permissions whereas "limitations" would seem to support the use of BCNs in appropriate GPDO cases. Can you confirm that your definition is the right one? MS.

Further Response

The typo is acknowledged. Two other readers have expressed similar views to yours. I have looked at this issue further and the Encyclopaedia of Planning Law confirms BCNs can be used against non-compliance with GPDO limitations. Thank you for correcting this. JH.

In 1997 a livestock building was given permission but the owner sold off the site without implementing the permission. The new owner, not a farmer, implemented the permission around 2000, except for using imperforate elevations instead of the "hit and miss" boarding to provide ventilation for livestock shown on the approved plans. Since then it has been used for a succession of unauthorised purposes, each necessitating enforcement action, and other planning breaches. The building has never been used for agriculture and was constructed by an owner who had no connection with agriculture. The original justification for allowing it clearly did not apply when it was constructed. Local residents feel the presence of the building on the land is prolonging unauthorised uses and it has cost the council much in pursuing enforcement. Residents want the council to use its section 102 discontinuance powers to have the building removed. Would such powers be justified in these circumstances? Could the present owner seek substantial compensation or reasonably require the council to purchase the site? Might there be another remedy under these circumstances? SM.

As the approved "hit and miss" boarding was not used it would probably have been possible to argue that what was built was something different from what was approved so the planning permission was not implemented. Thus, enforcement action could have been taken against the building, but it would now have four-year immunity. A discontinuance notice requiring the demolition of the building would now seem a very appropriate remedy in these circumstances, but this would involve paying compensation. The owner would only be able to require the purchase of the site if it was incapable of reasonable beneficial use in its existing state so a purchase notice could be served. JH.

In 1995 a council served an enforcement notice on a caravan. This was removed. However the owner then built a chalet which he occupied until his death in 2005. An application for a Certificate of Lawful Development was submitted by new owners in September 2005. This was refused in October 2007. As part of the appeal evidence three signed affidavits supporting the occupation were submitted and the council requested the appeal be put in abeyance while a fresh application was submitted which they would support. However they then changed their mind and requested the appeal proceed on the grounds that the enforcement notice on the caravan still applied as it was a "change of use from general agricultural use to private domestic use by the siting and residential use of a caravan". The LPA now wants the appeal withdrawn as they claim the notice relates to the site and is still extant. If it is not withdrawn they say they will claim for costs based on unreasonable behaviour. Is it unreasonable to invite the inspector to determine the matter and rule on the point of law? GK.

Under the provisions of s191(2) of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991, an enforcement notice "trumps" lawful development rights, i.e. one cannot gain four or ten year immunity if there is a valid enforcement notice against that development. Thus, had a further caravan been brought on the site after the removal of the original one, there would have been no question of the occupier gaining lawful development rights. In this instance, however, the erection and occupation of a chalet is a different breach of planning control from the siting of a caravan, so this issue does not arise. It might be that the council considers the chalet is actually a caravan bearing in mind the broad definition of one in the Caravan Sites and Control of Development Act 1960 as amended, so in preparing your appeal it would be advisable to produce evidence to counter that argument. JH.

An enforcement notice was quashed on appeal as a nullity. If it is more than 4 years since the breach, is the council out of time to take further action? Alternatively has the Council 'purported' to have taken action within the prescribed time and therefore can still have a 'second bite'?  SY.

S171B of the Town and Country Planning Act 1990, as amended allows taking further enforcement action if, "during the period of four years ending with that action being taken, the local planning authority have taken or purported to take enforcement action in respect of that breach". The dictionary defines "purport" as "to profess or to be intended to seem". Thus, I consider a further notice could be served even if the first notice is held to be a nullity. JH

Response

Section 171B(4)(b) of the Town and Country Planning Act 1990, as amended,does not appear to me to cover a situation where the earlier purported notice was a complete nullity, so that there has in law been no notice at all. In one appeal decision, having reached the conclusion that the purported enforcement notice was a nullity, the Secretary of State wrote,  "Given that the conclusion that the notice is a nullity means that, in the Secretary of State’s view, there is no notice, the authority are requested to ensure that any record of its existence is removed from the enforcement register kept  under Section 188."

I suggest that where it is claimed that an authority "purported to take" enforcement action, there must be a threshold which was passed which enables what was done or purported to be done to be described as "enforcement action".  At very least this must have been a notice of some sort, even though it may have been defective.  However, if what was served did not amount to a notice at all because it was a complete nullity then it seems to me that the authority cannot "have purported to take" "enforcement action". MG.

If a dwelling has a lawful development certificate in relation to the breach of an agricultural occupancy condition for more than ten years, what is the situation if the property is later occupied by someone who complies with the condition? Would this effectively nullify the certificate? RW.

This issue is dealt with in section 9.453 of Development Control Practice. Such a scenario was considered in the case Nicholson v Secretary of State for the Environment & Maldon District Council (1997) where it was held that if there was subsequent renewed non-compliance then there would be a fresh breach, i.e. the period for enforcement against the breach will begin to run again. A lawful development certificate is only valid in so far as it certifies what the situation was at the time it was made. JH.

When a council serves an enforcement notice requiring the demolition of a building or the cessation of a use, if an appeal is lodged on ground (f), can the inspector under enforce and substitute requirements designed to resolve harm to amenity? If so what is the distinction between a ground (a) appeal (for which a fee is payable) and a ground (f) appeal (for which there is none)? IT.

Section 174 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991 sets out ground (f) as "that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach". Thus, an appellant can argue that under enforcement could remedy harm to amenity, notwithstanding the planning authority requiring full demolition or cessation of a use. The big difference between grounds (a) and (f) is that conditions could be imposed where ground (a) is pleaded (and the fee paid), but not if just ground (f) is. A practical example of this is, if a house is built without planning permission and the inspector considers the only harm resulting is a window overlooking a neighbour, normally under ground (f) he could require the window to be removed. If, however, that window could subsequently be reinstated as permitted development, this would not be appropriate, though if ground (a) were pleaded the inspector could impose a condition preventing the reinstatement of the window. JH.

Response

JH commented (1 May) that in making an appeal on ground (f) an appellant can argue that lesser steps to remedy any injury to amenity can be substituted when the planning authority has required steps which have the purpose of remedying the breach.

What he overlooks is that s173(4) indicates two separate purposes of the steps, 4(a) and 4(b). This distinction is reflected in s174(2)(f) by the words "or, as the case may be". I accept that the court of appeal held in Secretary of State for the Environment, Transport and the Regions and another v Wyatt Bros (Oxford) Ltd [2001] that the "or" in s173(4) was not entirely disjunctive but it also held that a requirement to return the land to its condition before the breach took place could not be turned into a notice requiring something less by reliance on the Inspector's powers under s176(1)(b). The appropriate course was a ground (a) appeal. An authority can choose steps to remedy the breach or steps to remedy any injury to amenity. That is their choice. If they choose the first, steps that do no more than require the land to be restored to its condition before the breach took place (s173(4)(a)) cannot be excessive, nor can it be argued that lesser steps which would only remedy any injury to amenity (s173(4)(b)) can be substituted by the inspector. AK.

Further Response

I was somewhat unsure on this issue when drafting my reply on this matter, so am grateful to AK for drawing my attention to the Wyatt case and correcting this point. JH.

Before 1 October last year, a client laid foundations for an outbuilding which was permitted development under the General Permitted Development Order 1995 then applicable but which would not have been under the provisions effective after 1 October. I recently submitted an application for a certificate of lawfulness of existing use or development with full plans showing how it would look in its completed form. The council however stated that they were minded to refuse the application (I have since withdrawn it), because they considered they could only grant a certificate for the foundations on site at the time of application, although they agreed that there had been a lawful start.  Do you consider the council’s approach correct as I am confused as to what other legal mechanism a developer would use in similar circumstances? CT.

Though the authority’s approach might appear pedantic, it seems technically correct. The way forward would be to make an application for a certificate of lawfulness of proposed use or development for the part of the outbuilding that has not been built. Incidentally, in case readers are surprised work commenced before 1 October can be completed after that date even though it is no longer permitted development under the General Permitted Development Order amendment that became effective then, this issue was discussed in the column on 3 and 24 October last year and is also discussed in section 4.343 of Development Control Practice. The lead case on this issue is R.J. Williams Le Roi v SoS & Another [1993]. JH.

A property is periodically used for car repairs - we think the person concerned spends spells in prison for drug-related offences. We would like to serve an enforcement notice but land registry searches show no owner registered. Have you any ideas on how we can go forward? WW.

Under the provisions of the Town and Country Act 1990, when an authority cannot identify an owner, etc after reasonable enquiry, a notice may be affixed conspicuously to an object on the premises and this constitutes adequate service. This does, however, raise the issue, if the notice is not complied with, it may not be possible to identify someone to prosecute and direct action might be necessary. JH

If permission is granted to convert a house to flats and the developer lays out a flat internally different from on the approved floor plans, what scope is there for enforcement and, given that once a flat is occupied its internal layout can be altered without needing planning permission, would enforcement action be reasonable? PB.

It might be argued that, unless external alterations are involved, a flat conversion is merely a change of use application and therefore, without a condition having been imposed requiring the layout to be implemented as approved, one cannot prevent a different layout being implemented. On the basis that the change of use and the internal works are one entity, however, I would suggest it would in theory at least be possible to take enforcement action if the implemented layout is different from the approved one. Having said that, if enforcement action were taken, the occupier has the fallback they could subsequently change their internal flat layout without requiring planning permission and at appeal this would be a strong argument for quashing any enforcement notice.

Within this context it would generally not be expedient to take enforcement action if the approved layout is not implemented unless there are land use or environmental impacts from the changes. An example where action might be appropriate is when a flat is adjacent to a noise generator and it would be desirable to have the kitchen and bathroom adjacent to this. In such instances, it would be appropriate to impose a condition requiring that the relevant aspect of the layout should be implemented as approved and possibly not subsequently altered. I would consider conditions controlling internal flat layouts should be rarely used as they inevitably restrict occupiers’ normal freedom. Furthermore, such conditions should only be imposed restricting the crucial element of the layout, not the whole layout, e.g. the location of the kitchen and bathroom in my example. Obviously if the deviations from the approved proposal included changes to the exterior of the building, e.g. an additional window which spoilt its appearance or overlooked a neighbour, there would be a clearer case for enforcement action.

What I have written here has been worked out from basic principles and I have little direct experience of such an issue and am not aware of any relevant appeal decisions. If any readers have encountered a relevant case or have other views, I would be most interested to hear from them. JH.

Response

Do you consider the number of bedrooms shown on the approved plans could be reduced or increased without requiring planning permission provided there were no alterations to the exterior of the building? HG.

Further Response

As I indicated in my response, my answer was worked out applying basic principles of logic and I had little direct experience of such issues. As far as I can see, however, for the reasons I gave in my previous answer, a change in the number of bedrooms provided would need to be treated similarly to any other deviation from an approved layout. I did, however, ask if other readers had direct experience on these issues and would be interested to hear if any have. JH.

Further response

In relation to reducing or increasing the number of bedrooms shown on approved plans, it is sometimes beneficial to show a certain number of bedrooms on a layout with a view to altering it at a later stage without requiring a further planning permission. Once a building is substantially complete or the units completed to a certain stage, then any further alterations or subdivisions would not constitute development and planning permission would not be required and we would tend not to refer such matters to the planning authority. I agree that if alterations are made during the early stages then perhaps a consent would be required for a deviation; the trick therefore is to make any alterations much later. KP.

Further Response

I would agree that if a conversion is completed and then the layout is changed without external alterations, planning permission would not be required unless a planning condition prevents this. If the layout is changed during construction, however, there is technically a breach of planning control, but in many instances, for reasons I explained previously, it would not be reasonable for authorities to enforce. JH

If a commercial building is erected in open countryside, clearly after four years it would be immune from enforcement, but would the use only become immune from enforcement after 10 years? CN.

In principle, yes, but applying the principle of Murfitt v Secretary of State for the Environment and East Cambridgeshire District Council 1980 and similar cases referred to in section 4.5363 of Development Control Practice, if a building is ancillary to a use, for example in the case of a small office to support the recreational use of a large field, it would be possible to take action against both use and building for 10 years. For this to apply, however, it is necessary to show that the erection of the building is part and parcel of the change of use breach. JH

I have built an extension to my house which I have now realised is slightly longer than the permitted development tolerances would allow. I have proposed reducing its length so it becomes permitted development, but the council says that does not make it lawful. Can you advise? PT.

This issue has been considered in a recent appeal in north London (DCS reference 100 063 014).  Article 3(5) of the General Permitted Development Order 1995 states permitted development rights do not apply "if in the case of a permission granted in connection with an existing building, the building operations involved in the construction of that building are unlawful". The construction of the extension, as it exceeded the permitted development tolerances, was unlawful, so reducing its size cannot consequently make it permitted development. Thus, you cannot just reduce the size of your extension.

Having said that, in dealing with such matters planning authorities need to be aware that, if an enforcement notice is served the householder can demolish the extension and then build what is permitted development. In view of this fallback situation, most would not consider it expedient to enforce if the householder were willing to cut back an extension so it became permitted development. Within this context it would be sensible for you to negotiate with your council and agree an acceptable compromise. In the case referred to above the inspector did uphold the enforcement notice requiring the demolition of the extension, but he extended the period for compliance as he considered a suitable compromise could be negotiated between the parties. JH.

I am considering purchasing a camping site which has operated since 1946. In 1991 an enforcement notice was served against touring caravans and the owner did not challenge this owing to a medical condition. I have since learnt that one of the planning committee members was at that time operating a camping site with unauthorised caravans and was subsequently granted a lawful development certificate contrary to officer recommendation on limited evidence. This is a clear abuse of power and smells of discrimination. Can the certificate be revoked? Can I get permission for touring caravans if I purchase this site? BJ.

Regarding the site you are considering buying, under the provisions of s191(2) of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991, an enforcement notice "trumps" lawful development rights, i.e. any ten-year immunity is lost as a result of the enforcement notice. Thus the only way to get caravans on the site would be to obtain planning permission which may or may not be granted depending on the authority’s present policies.

Regarding the councillor’s site, in view of the time that has elapsed any action such as judicial review or reference to the ombudsman would be unlikely to be successful. In any event you would not have sufficient direct interest in the matter to be able to take action. JH.

A semi-detached bungalow was demolished without the necessary prior notification, the remaining bungalow being left damaged and leaking. What enforcement action is possible and appropriate? Circular 10/95 advises that where an enforcement notice is issued, it may require the construction of a replacement building ‘as similar as possible' to the demolished building.  I am not sure that an enforcement notice could require, for example, remediation of the neighbour's walls and gutters as that would mean the perpetrator doing work to someone else’s property and the neighbour might not allow access. Also, if the remediation fails later, the council might be liable for having required the works.  There are no strong planning grounds for seeking the bungalow’s reconstruction.  Can remedial works to the remaining bungalow be required by an enforcement notice?  EM.

I presume the person who demolished the bungalow did some work on/damage to the adjoining one. An enforcement notice requiring such work on or damage to the neighbour to be rectified would have to be served on the neighbour and they would be committing an offence if it were not complied with, though they could probably claim the cost of complying from the adjoining owner. Provided it just related to work on his side of the party wall, there would not be a problem serving a "make good" enforcement notice on the person who demolished the bungalow. If the specified work accords with normal practice, I would not consider the council would be liable for future problems. In this situation you could consider an enforcement notice with the alternatives of making good the party wall, etc or rebuilding the bungalow. JH. 

Response

Does not the neighbour have access to redress under the Party Wall etc Act 1996? The planning system does not exist to protect the interests of one person against another. DE.

Further Response

EM appears concerned whether or not enforcement action could be taken to secure the rebuilding of one half of a pair of semi detached bungalows, demolished without permission, but goes on to say that there are no strong grounds for this. The answer is therefore simple!  Forget about it! SC.

Further Response

Whether Party Wall Act notification would be necessary would depend on exactly what work was carried out, but DE makes a good point that it is important to differentiate between public and private issues and an enforcement notice should only be served if there is a public benefit in doing so, e.g. having an unsightly exposed gable treated. Within that context, if EM’s authority decides there would be no public benefit in serving an enforcement notice, as SC suggests, it would not be expedient to serve one. JH.

Permitted development rights for extensions were removed from a house. The owners erected an extension without planning permission. What is the timescale for enforcement, 4 or 10 years? CT.

Section 171(B) inserted into the Town and Country Planning Act 1990 by the Planning and Compensation Act 1991 brought breaches of conditions within the 10-year period and this has been confirmed by the case of Bloomfield v Secretary of State for the Environment, Transport and the Regions (1999). JH.

A building was granted a lawful development certificate (existing) last year for "use as a single dwellinghouse (use class C3)".  The plan attached, which is the same as the plan submitted with the application, shows the building within a modest plot, all of which is outlined and cross-hatched, but the wording refers only to the building.  Does the building have the same permitted development rights for extensions and alterations as any other dwelling?  If so, do the permitted development rights extend to outbuildings etc elsewhere within the site? PT

Clearly there is ambiguity whether the certificate covers the curtilage and I do not know of an appeal or court case where a similar issue has been decided. I suspect, however, that the certificate would be interpreted in the occupier’s favour, i.e. to include it.

Regarding your query about permitted development rights, superseded circular 17/92 stated "by conferring lawfulness on a use or operation, for the purposes of the 1990 Act, the result of consequential amendments now made to the (General Permitted Development Order) is to confer any relevant permitted development rights which might be conferred by the current (Order) in relation to that use or operation.". The relevant part of the Order referred to, and now found at Article 3(5) of the General Permitted Development Order 1995 states there are no permitted development rights for operations or uses if the development is unlawful. Circular 17/92, however, was replaced by circular 10/97 where this advice was not repeated, which would suggest the government now considers a lawful development certificate does not confer permitted development rights. There is, however, no judicial authority for that view and I personally think it likely the courts would follow the circular 17/92 advice. JH.

Part of a stable complex was converted to a dwelling and that has become lawful through four-year immunity. It does not have a curtilage. A mobile home comprising an 11.6m x 3.66m caravan was transported to the site on a lorry in June 2005 to accommodate an aged parent of the dwelling occupier. The caravan is connected to water and electricity supplies and a septic tank. A lawful development certificate application for the mobile home used as a 'granny annexe' has been refused partly on the grounds that the use has not taken place for ten years. Whilst I understand that this rule would apply to a caravan used as a separate unit, as an extension to the existing dwelling necessitating operational development, should the four-year rule apply? JR.

Sometimes it is difficult to tell when works such as the addition of porches, foundations, skirts, etc change a caravan to which the ten-year rule would apply to a dwelling to which the four-year rule would and this issue is considered in section 4.351 of Development Control Practice. From that section it would seem that the extent of connection to services is fairly minimal, so the ten-year rule would be relevant. For the same reasons the caravan could not be considered equivalent to a "bricks and mortar" extension to a dwelling, to which the four-year rule would apply. JH.

Approximately 5 years ago, a lawful development certificate was issued for a listed house which had been converted into flats.  At the time, plastic windows were in place which were added without listed building consent and the internal works clearly required listed building consent.  Should the certificate have been issued? SC

The Planning and Compensation Act 1991 inserted sections 90 and 90A providing for lawful development certificates into the Town and Country Planning Act 1990. The Town and Country Planning Act 1990 relates to planning permission and listed building consent is a separate legislative code covered by the Listed Buildings and Conservation Area Act 1990. A lawful development certificate therefore only relates to the building’s planning permission status, so the need for listed building consent for some works is irrelevant. It is worth mentioning alterations to a listed building requiring consent can never obtain time immunity from enforcement unlike works which just require planning permission. Prospective purchasers of listed buildings have to check carefully that the building has not been altered in some way, possibly many years earlier, without listed building consent being obtained as, once they own it, they would become liable to comply with any listed building enforcement notice. 

If the new windows materially altered the building’s external appearance, they would have required planning permission. In this respect, assuming the lawful development certificate application was for the building’s use as flats and did not refer to the window insertion, it would have been correctly granted. JH.

An enforcement notice requiring the demolition of an unauthorised extension was unsuccessfully appealed. Meanwhile, an amended planning application was granted which addressed issues such as overlooking and the applicant has three years to carry out the works. The period for complying with the notice has expired, however. What is the effect of the approval of the amended application? Surely it cannot be right that the neighbours have to suffer overlooking for a further three years. Can the applicant be advised the notice will be regarded as complied with if they alter the buildings to comply with the planning permission, failing which they will have to remove all of the buildings and build from scratch? Should any further period of time be given for compliance or could proceedings for non-compliance be brought straightaway? CW.

s180 of the Town and Country Planning Act 1991 provides that, if after the service of an enforcement notice, planning permission is granted for the retention of a building to which the notice relates, it shall cease to have effect in so far as it requires steps to be taken for the demolition or alteration of that building. In the case you describe, however, planning permission has not been granted for the existing building but rather for a scheme which is slightly different, presumably as it omits an overlooking window (and may also be different in other respects). Thus, the notice is still valid, though clearly it would not be in the public interest to prosecute if the extension were modified to accord with the subsequent permission. Similarly, it would not be in the public interest to prosecute if the house owner was actively trying to remedy the matter. Thus, I would recommend allowing a reasonable period (probably the one set in the notice) to adapt the extension and informing the householder accordingly. If they fail to do this within that period, you should then prosecute. Incidentally, the three-year period you refer to is only for the COMMENCEMENT of a permission, not its completion, so it would not be reasonable to base the time for the remedial works to be carried out on this. JH.

My landlord has converted a semi into a house and two flats. Three years ago the landlord decided he no longer wanted to pay to maintain a screen that gave privacy to my flat and removed it. I have checked the original planning permission, granted in 1990, and it includes the condition, "Within two months of the date of this permission, a 1.8m high obscure glazed screen of a design and materials to be approved by the local planning authority shall be erected along the north-east staircase hereby permitted." Can anything be done about this? HR.

The wording of the condition is not satisfactory. Unless the application was retrospective, it should not have specified that the screen should have been erected within two months as the development might not have been implemented until much later. Even if the application was retrospective, however, the condition was not appropriately worded. It required the approval of the screen beforehand and does not allow for the eventuality that an unsatisfactory scheme is submitted and not approved by the council for whatever reason. Thus, the developer could have found himself in breach of the condition but unable to comply with it as no scheme was approved. The case Payne v National Assembly for Wales and Caerphilly County Borough Council 2006 demonstrates the problems that arose when an inspector on appeal attempted to impose a similar condition.

Of more significance to you is another unsatisfactory aspect of the condition’s wording; though it required a screen to be erected, it did not require it to be retained. Thus, your landlord has not breached planning control by removing the screen. You could complain to the council that the condition was unsatisfactorily worded, but the fact that you have let this issue lie for a long time could count against you. You would not be able to complain to the ombudsman as they will normally only investigate issues you have become aware of within the last year. JH.

S171(B) of the Town and Country Planning Act 1990 (as amended) states use as a ‘single dwellinghouse’ is lawful after four years, with all other uses being 10 years. Am I correct therefore in assuming for a property comprising several self-contained flats continual use for 10 would be needed for immunity to apply? RG.

The four-year rule applies. S171B states, "the change of use of any building to use as a single dwellinghouse" is immune from enforcement after four years. S336, however, defines "building" as including "any part of a building", so each part of the building which has been converted to a self-contained flat is a "building" for the purposes of s171B. The appeal court cases Van Dyck v Secretary of State for the Environment and Doncaster Borough Council v Secretary of State for the Environment and Dunhill [1993] confirm this is the case. JH

An enforcement notice was quashed on appeal on a technicality, improper service, in May 2008. The council has now served two enforcement notices for the same development under the 'second bite' provision of Section 171B (4)(b) of the Town and Country Planning Act 1990 (as amended), within four years of the initial notice being served.  If a notice was quashed at appeal, does it still technically exist for the purposes of 'stopping the clock'? MP.

S171B of the Town and Country Planning Act 1990, as amended allows taking further enforcement action if, "during the period of four years ending with that action being taken, the local planning authority have taken or purported to take enforcement action in respect of that breach". The dictionary defines "purport" as "to profess or to be intended to seem". Thus, I consider a further notice could be served even if the first notice was quashed on appeal. JH.

In 1999 a forestry building was completed as permitted development under part 7 of schedule 2 of the General Permitted Development Order 1995, even though it had a bathroom and kitchen.  We have received a lawful development certificate application with evidence showing it has been used for holiday purposes for 10 years.  This consists of photographs, and utility bills along with a statutory declaration stating the building was used as a dwelling for vacations. The evidence is sparse - no dates of stays have been given, simply that the owners and family members have stayed for various weekends throughout the year. On some occasions they have stipulated the month in which they stayed. It has only been occupied for a week or two at a time and been left vacant between.  It is in a location where the council would not permit holiday units or residential development.  Should we grant the certificate? HC.

You must consider the evidence and decide whether it is sufficient. I would, however, make some comments. Firstly, assuming the use claimed is as a dwelling (Gravesham Borough Council v Secretary of State for the Environment & Michael O'Brien, 1983 indicates a property can be a dwellinghouse provided it offers the facilities for day-to-day private existence), the four-year rule would apply, not the 10-year one. Moore v Secretary of State for the Environment and New Forest District Council confirms both holiday accommodation and conventional dwellings are in the C3 use class.

Also, you must be satisfied the use has been purely as a dwelling and not a composite use as a dwelling and a base for forestry work, e.g. with significant storage of tools or equipment there. The onus is on the applicant to prove this. Furthermore, you might be concerned whether the periods of absence which are, of course, part of a holiday cottage use mean the period was not continuous so a certificate could not be granted. Swale Borough Council v First Secretary of State and Roger Lee (2005) established that an occupier does not have to be continuously or even regularly present to establish unbroken use of premises as a dwellinghouse, provided it is furnished and available for such use. JH.

We have authority to enforce against the conversion of one flat into two, but the owners have now removed one doorbell and one lobby door. Their agent insists the door’s removal means it is no longer two self-contained units as there is a thoroughfare for all occupants. It is currently vacant and being advertised to let as a two-bedroomed flat. Our legal team is now reluctant to serve the notice. However, as the second lounge, shower room, toilet and kitchen remain, I feel use as two separate units is still viable and an enforcement notice can still be served, especially as the lobby door can easily be replaced. This flat was formed by the unauthorised subdivision of a house some years ago and the other flat in the house has also recently been subdivided. Please advise. LL

Normally, if an unauthorised development ceases, it is not expedient to enforce against it. Here, however, duplicated facilities including a kitchen remain (had an enforcement notice been served, I am sure one requirement would have been to remove a kitchen) and it is easy to convert the property back to two flats. The case Andrew Blackburn v First Secretary of State and South Holland District Council (2003) where a residential caravan had been removed from land indicates an enforcement notice can be served even if use is not occurring at the time. This situation seems an appropriate case to enforce. I am not clear from what you have written whether the property has actually been occupied as two flats, but if it has not the case, Impey v Secretary of State for the Environment and Lake District Special Planning Board (1981) indicates it is sufficient for a building to have been converted for a new use for a breach of planning control to have occurred.

 

If, despite my advice, your legal section is still unwilling to serve an enforcement notice, the alternative would be an injunction under s187B of the Town and Country Planning Act 1990 (as amended). Since this provision was enacted under the Planning and Compensation Act 1991 there is less requirement for authorities to justify injunctions, but in this instance the history of breaches of planning control at this property clearly makes one appropriate. JH.

Would planning permission be needed to use land as allotments. The land is scrubland and I can find no evidence of a previous use. Obviously any structures such as sheds would require planning permission but does the use of the land itself require a change of use or is it an agricultural use? CT.

If land is used for agricultural purposes, planning permission is not, of course, required. In Crowborough Parish Council v Secretary of State for the Environment and Wealden District Council [1980] the definition of agriculture in primary planning legislation was examined. It was ruled that both the local authority and the Secretary of State had been wrong to assert that the use of the land for allotments was a material change of use because of the greater intensity of use that would be involved, changes that would occur to the land’s appearance of and the increased number of people visiting the site. The court held that what was being carried out on the land was horticulture, fruit growing and so on, which were included in the statutory definition of agriculture. Accordingly the wrong test had been applied.  It is, however, necessary to consider the nature of the use. If the allotment is used, for example, for leisure plot purposes or has a significant area of ornamental garden then it would not be an agricultural use. JH.

Response

Further to CT’s query and the "Field games change of use claim denied" decision published in "Casebook" of the same date (DCP No 100-057-991), could you advise if planning permission is needed when a resident backing onto private allotments which are protected open space buys the adjacent plot and extends his back garden? If he cultivated the land as an allotment, would it no longer be a change of use to residential? Looking at the "Field Games" decision, could the owner, in either scenario, claim lawful use after 10 years? IB.

Further Response

If the fence, wall or hedge between the garden and allotment were removed, it would be strong evidence of a change of use as two planning units would have been merged. If the fence, etc is retained, you would need to assess whether there has been a change of use of the allotment from, say, agriculture to garden/recreational purposes. If a change of use occurred either way and no action was taken for 10 years, immunity from enforcement would be obtained. JH.

I am preparing a lawful development certificate application for seasonal camping and caravans on a field. In pre-application discussions the council indicates it wants to give the number of tents and touring caravans allowed in the certificate, but will not say how it will determine the actual numbers. Whist this approach is acceptable for static caravans I do not see how this can work for tents and touring units because  their numbers fluctuate enormously.  What is your view? PW

I believe the council’s stance is correct. Circular 10/97 (paragraphs 8.16 to 8.22) advises planning authorities to be very specific when granting lawful development certificates for existing uses to indicate the limits of the use that has become immune from enforcement action. Clearly where the extent of a use has fluctuated it may be difficult to specify the limits but these problems are not insuperable, e.g. in this case by indicating the average and maximum number of units. If the landowner subsequently exceeds these limits, this does not necessarily mean the use is in breach of planning control. Rather these limits are intended to be a marker such that, if the use subsequently intensifies to a scale that results in a material change of use, the planning authority is not barred from taking enforcement action which it would be if the limits were not defined. An appeal where these issues are discussed in relation to touring caravans is DCS No 040-963-228. JH

Response

The Caravan and Camping Club has a minimum separation distance of 6m between units. This may be of help in establishing the maximum capacity of the site. DL.

Further Response

Whilst this might define the maximum number of tents the site can accommodate, it is possible that the number of tents on the site never or only occasionally reached that maximum. JH.

My client owned a commercial stables that included a mobile home used as an ancillary mess facility that had been on site for over 10 years. He sold the stables in 2009, retaining one field. The new owners used the mobile home for residential accommodation, and the council served an enforcement notice. The enforcement notice plan included the field my client had retained, but the notice was not served on him and he did not know about it. The new owners did not appeal the notice, so it became effective. My client then bought back the property, and the council advised him that in accordance with the notice the mobile home had to be removed. Had he known of the notice, he could have appealed on the grounds it was a nullity, it had not been served on him as an owner of part of the site; and the steps required for compliance were excessive, as the mobile home’s use as ancillary mess facilities had continued for over 10 years. It is not possible to apply for a lawful development certificate as there is a valid enforcement notice, and in any event the mess facility use was interrupted by residential use. Can you suggest a way to enable my client to lawfully retain the mobile home? CS.

There is a salutary lesson to be learnt here that before purchasing land one should carry out a search as that would have revealed the enforcement notice. Though your client’s land was included within the enforcement notice plan boundary, I presume it was the planning authority’s intention to serve the notice just on the stables and the inclusion of the extra field was a result of their not being aware that this had been separated from the holding. As the mobile home was not on his land it would seem he would not have been prejudiced by failure to serve the notice on him as he had no interest in it at the time. Your client has only found himself at a disadvantage because he bought the site back and did not carry out a search. Although the council ought to have served the enforcement notice on him, a formal complaint to the council that they failed to do this would be unlikely to be upheld as the council would argue he should have carried out a search when he bought the stables back. All I can suggest is you explore the possibility of obtaining planning permission to retain the mobile home as a mess facility with the council. Obviously you should argue a need for this facility and point out that it previously existed for over 10 years without causing complaint. Whether your client gets permission will, of course, depend on their views of the situation in the light of their policies. JH. 

Response

I suggest the case of Wealden District Council v Secretary of State for the Environment and Day [1986] is helpful. Stationing a caravan is not, in itself, an act of "development" so does not require planning permission. As long as it is used for ancillary purposes there is no change of use of the land. However if it is used for non-ancillary purposes (such as residential) then there is a change of use. Hence in CS's case the authority took action only once residential use started. There could have been argument at appeal that requiring removal was excessive. However if at that time it was not in fact being used for such purposes an inspector may well have required its removal.

In an inquiry I did (DCS No 100-069-915) the notice only required the cessation of residential use OR removal of a caravan. At the inquiry the planning authority sought to vary the notice to require cessation AND removal. The inspector refused to allow this as it prejudiced the appellant and indicated that, applying Wealden, siting a caravan used for purposes ancillary to agricultural use was not development.

I therefore suggest a lawful development certificate should be sought for the stationing of a caravan for use ancillary to the riding stables as this does not involve development or a breach of control. The planning authority should be asked to vary the notice under s173(A) of the Town and Country Planning Act 1990 as amended to delete the removal requirement, otherwise the caravan would have to be removed to comply with the notice only to be subsequently returned for ancillary use; which is daft. Of course the notice would remain effective to prevent residential use. PB.

Further Response

You have made a good point. Under the "Mansi principle", derived from Mansi v Elstree Rural District Council 1964, an enforcement notice cannot take away existing rights such as arise from permitted development or, as in this case, carrying out work which is not classed as development. CS’s question related to a mobile home rather than a caravan, but as you point out, providing the nature of the mobile home was such that siting it did not involve operational development, the enforcement notice should not have required its removal. JH.

An enforcement notice directed against the conversion of a house to flats requires the change of use to cease and the owner "not to use the property other than as a single dwellinghouse". Regarding evidence for contravention of that notice, is it sufficient that it is still divided into flats or would the authority have to show that they are actually occupied? CW.

In the case of Dunhill and Van Dyck v Secretary of State for the Environment and Southend Borough Council (1992) it was held that for purposes of assessing the four-year rule for a flat conversion the relevant date was the date of the first occupation of the flats, not the date of conversion.   Within that context and as the property is not actually being used as flats it would seem prosecution would not be very likely to succeed.

When drafting enforcement notices relating to flat conversions, I recommend requiring the removal of related internal works like partitioning, additional kitchens or bathrooms and meters as far as is necessary (It may not be necessary to require the removal of all facilities, as, for example, it might be possible for a second bathroom to be used as an en suite). Requiring the removal of such works prevents the situation you are now in and also discourages subsequent multiple occupation use (though with the recent amendment to the General Permitted Development Order 1995 allowing switches from C3 to C4, there is now an argument against this in relation to smaller dwellings). I would also comment that, as you have, including a requirement to cease residential use other than as a single dwelling in an enforcement notice relating to a flat conversion is good practice. Otherwise, as I have found from experience, prosecution is difficult if flats end up in different ownerships as an owner can use the defence in s179(3) of the Town and Country Planning Act 1990 (as amended) on the basis they cannot get access to the other flat(s) as they do not own it/them so cannot comply with the notice. JH.

A blockwork chimney, a domestic biomass (zero carbon) heating installation, was granted permission, subject to a condition requiring a render finish.  The chimney was constructed without being rendered, although it has been painted to contrast with adjacent brickwork. Due to the October 2008 General Permitted Development Order revisions, the chimney would now be permitted development. Paragraph 46 of the 2007 supplement to PPS1 advises authorities in considering whether to take enforcement action to have particular regard to the highest priority placed by Government on mitigating climate change and successfully adapting to the unavoidable consequences. Given this and the change in legislation, would it be expedient and proportional to commence enforcement action for breach of condition? MH

Whilst the chimney was erected for sustainability reasons, whether or not enforcement action is taken does not really affect sustainability issues, so the reference to the supplement to PPS1 is not very relevant. Assuming the chimney was built before October 2008 it would be in breach of planning control, so enforcement action can be taken. Your client would, however, have the theoretical right to demolish the chimney and rebuild it. Fallback rights under the General Permitted Development Order are considered in section 4.346 of Development Control Practice. Generally fallback rights are more relevant to a case the more likely they are to be used. In this instance I consider your client would be unlikely to demolish and rebuild the chimney – rendering would be cheaper. Having said that, my feeling is it would only now be appropriate to take enforcement action if there was a particular reason, such as the chimney looking very unsightly or being in a conservation area. John Harrison.


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