Section 187A of the Town and Country Planning Act 1990 allows a local planning authority (LPA) to serve a breach of condition notice (BCN) where planning permission has been granted subject to conditions and one or more of those conditions has not been complied with. This is intended to be a summary remedy, and an alternative both to the issue of an enforcement notice and to proceedings for an injunction. There is no right of appeal to the secretary of state, as in the case of an enforcement notice, because the planning merits are not in question.
What steps can the recipient of a BCN take? If the LPA prosecutes it subsequently for non-compliance with its requirements, it is clear that it can challenge it by way of a defence in the magistrates’ court, at least on limited legal grounds. Otherwise, it must either seek a judicial review or apply, under section 73 of the 1990 Act, to vary or discharge the condition or conditions. This was emphasised by the Court of Appeal in Trim v North Dorset District Council of Nordon [2010] EWCA Civ 1446; [2010] PLSCS 322.
Section 187A of the Town and Country Planning Act 1990 allows a local planning authority (LPA) to serve a breach of condition notice (BCN) where planning permission has been granted subject to conditions and one or more of those conditions has not been complied with. This is intended to be a summary remedy, and an alternative both to the issue of an enforcement notice and to proceedings for an injunction. There is no right of appeal to the secretary of state, as in the case of an enforcement notice, because the planning merits are not in question. What steps can the recipient of a BCN take? If the LPA prosecutes it subsequently for non-compliance with its requirements, it is clear that it can challenge it by way of a defence in the magistrates’ court, at least on limited legal grounds. Otherwise, it must either seek a judicial review or apply, under section 73 of the 1990 Act, to vary or discharge the condition or conditions. This was emphasised by the Court of Appeal in Trim v North Dorset District Council of Nordon [2010] EWCA Civ 1446; [2010] PLSCS 322. There, the recipient had maintained throughout what was described as an “extensive and somewhat complex” planning history that he had been in breach of an occupancy condition for more than 10 years, with the result that the time limit for enforcement action in respect of the condition had expired. To some extent, the validity of this argument hinged on the interpretation of the condition in question. He applied to the court, by private law proceedings, for a declaration that the BCN had been served out of time. The principal question for the Court of Appeal was whether this amounted to an abuse of process, as the LPA alleged. The Court of Appeal held that it did. The general principle that applied here was that purely public law acts should be challenged by way of judicial review, and that it was in the public interest that the legality of the formal acts of a public authority should be established without delay. (This is sometimes referred to as the “exclusivity principle”.) Furthermore, in a case such as this – where the recipient had probably left it too late to make a claim for judicial review – it was not up to the court to assist the recipient to find a way out of the procedural limbo in which it found itself by extending time. John Martin is a freelance writer
