How does a breach of planning permission restrict what can take place after the breach has become immune from enforcement, and what is the enforcement impact of a partial breach of planning conditions?
Even after a breach of a planning condition has become immune from enforcement, that condition may still bind and restrict what can take place on some other part of the land which benefits from the same planning permission. This was the broad conclusion of the Court of Appeal in respect of a caravan site in Dorset (Royale Parks Limited v SSHCLG and Anr [2021] EWCA Civ 1101).
What is the enforcement period for a breach of planning conditions?
It is well understood that a local planning authority has a window of ten years within which it can take enforcement action where there has been a breach of a condition imposed on a grant of planning permission. In most cases, it will be possible to identify the condition, identify the breach and understand the implications of the immunity provisions for the use of the land or building going forwards.
However, a situation can be made more complicated where the condition applies across a number of separate areas or units that are all within the red line of the planning permission, but where the breach has only occurred in respect of some of them.
What examples are there of partial breach of planning conditions?
Examples of this sort of scenario which have come before the courts have included a car park (where conditions restricting use had been breached for ten years in some parking spaces but not others) and now, in this new decision, a caravan site (where conditions had been breached for ten years on some pitches but not on others).
The question, then, is whether the condition can survive and continue to be enforced on/ against those units which have not themselves reached the immunity threshold.
The answer is often not straightforward, and it will not always be possible to advise with certainty whether a particular case will fall to one side of the line or the other. The decision maker will have to assess whether the condition was intended to be applied over the site as a whole or to the various parcels within the site. It will also be relevant whether these ‘parcels’ are readily identifiable, whether by reference to a plan or the circumstances on the ground.
Is a breach of planning that is immune from enforcement lawful?
A breach will, over time, become lawful by the operation of statute and it is not necessary to obtain a certificate of lawfulness to bring this about. A certificate does not confer lawfulness, it is merely a process by which that status is formally acknowledged by the planning authority and can thereafter be evidenced to a third party (often a buyer or lender). This is certainly one of those situations where, if an owner believes that their breach has achieved site-wide immunity, then there would be merit in applying for a certificate of lawfulness to confirm it.