The Pitfalls of Planning

For advice on any matter relating to commercial property, including planning permission, contact JMW today on 0345 872 6666.

When commencing works to property or land, it is often difficult to know whether planning permission will be required. The Town and Country Planning Act 1990 regulates the development of land in England and Wales and provides that planning permission must be obtained for the development of land (being operational development or a material change of use), but is not necessary for minor works, such as internal alterations. Developing land without planning permission or failing to comply with a condition of a planning permission constitutes a breach of planning control, which can have serious consequences.

Often, breaches can be remedied through informal negotiations with the Local Planning Authority (LPA). However, legislation gives the LPA wide-reaching powers of enforcement should a formal process be required to prevent or rectify breaches, including:

1. Enforcement Notice

The notice includes details of the alleged breach, how to remedy the breach and the period in which to do so. It takes effect 28 days after being issued, giving the recipient time to appeal against it. However, only a minority of enforcement notices are quashed on appeal.

2. Breach of Condition Notice

This notice can be used if the breach is of a simple and unambiguous planning condition. For example, a property is granted planning permission on the condition it is used as a shop, but it is instead used as a pub. This type of notice cannot be appealed against unless the condition is ambiguous.

3. Stop Notice

If a breach is considered to be sufficiently serious, then the LPA can issue a stop notice requiring the recipient to cease the works immediately.

Failure to comply with any of the above notices constitutes a criminal offence and can result in a fine of up to £20,000.

Lawful Development

A breach of planning control can become immune from action if it is deemed lawful. There are two methods for a breach to become lawful: retrospective planning permission or a lawful development certificate.

Retrospective planning permission is dependent on planning considerations alone and it can be refused or granted subject to conditions. The fact the development has already occurred should not be taken into consideration. 

A certificate of lawful development may be granted if it is proven that a breach has been in existence for a certain period, as follows:

  1. Operational development - if the building has been "substantially complete" for 4 years.
  2. Material change of use - if the change of use has been continuous for 10 years, or 4 years if the change was to residential.
  3. Breach of condition - it must have been continuous for 10 years.

The benefit of a certificate is that it is determined on fact and law, not planning considerations. It can require substantial evidence but is more certain than seeking retrospective permission. However, the famous case of Mr Fidler proves that, as with everything in planning, even this is not always straightforward. Mr Fidler built a house, which he hid behind straw bales for 4 years before removing them assuming that he had satisfied the operational development period of lawfulness. The courts disagreed and he has been ordered to demolish the property.

Planning is a complex area. It is always best to seek advice before commencing any works.

Contact JMW 

For more information on planning or any commercial property issues please contact our commercial property team on 0345 872 6666 or via our enquiry form.

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