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What is a Breach of Condition Notice?
When planning permission is granted, conditions are sometimes attached that must be complied with. If you do not comply with these conditions, then your local Council may serve you with a Breach of Condition.
A Breach of Condition Notice may be served as an alternative to a Planning Enforcement Notice where the Council believes that a planning condition has been breached. An example of a breach of condition would be failing to observe the restrictions on opening hours imposed as part of the planning permission for a wine bar. The Breach of Condition Notice requires the recipient to comply with the terms specified by the Council in the Notice. In our example of a wine bar, the Breach of Condition Notice might require the owners of the bar not to open the bar outside the hours specified in the planning permission.
Who can a Breach of Condition Notice be served on?
The Council may serve a Breach of Condition Notice on any person who is carrying out, or has carried out, the development in question, or on any person with control of the land on which the development is being or has been carried out.
Can I Appeal a Breach of Condition Notice?
Unfortunately, there is no right of appeal to the Secretary of State against the service of a Breach of Condition Notice. The only way that the Notice can be challenged is by judicial review in the High Court, on the basis that there is some legal defect in the Notice and/or a legal error in the Council’s decision to serve it. This is a complex process and, since you may have as little as 28 days to comply with the Breach of Condition Notice, it is important to seek professional advice as soon as possible.
What must a Breach of Condition Notice Contain?
The Breach of Condition Notice must specify the steps that the Council considers ought to be taken, or the activities that ought to stop in order to secure compliance with the planning conditions specified in the Notice. Where a Breach of Condition Notice is served on a person who has control of the land but who is not carrying (or has not carried) out the development, the Council can only require compliance with conditions regulating the use of the land. An example of this would be a condition that a dwelling be restricted to people solely or mainly working in the locality of agriculture. The person who has control of the land may not have carried out the development, but they must ensure that the building is only used by agricultural tenants.
The Breach of Condition Notice must also specify a period for compliance, which must be at least 28 days from the date of service of the Notice.
What happens if a Breach of Condition Notice is not fully complied with?
The Breach of Condition Notice must specify a period for compliance. If you have not fully complied with all the steps required by the end of that period, you will be in breach of the Notice. This is a criminal offence and may result in summary prosecution in the Magistrate’s Court. The maximum penalty on conviction is a fine of £1000 in the UK.
It is a defence, however, to prove that you took all reasonable measures to ensure compliance with the notice or, if you were served as the person having control of the land, that you did not have control of the land at the time you were served.
There is more information about planning prosecutions elsewhere on our website, but if you are being prosecuted by your local Council for failure to comply with a Breach of Condition Notice, it is important that you take legal advice straight away. Contact us for detailed advice on your individual situation.