Section 187A Town and Country Planning Act 1990- Breach of Condition Notices – frequently asked questions

Barrister Quentin Hunt takes you through common questions concerning a breach of condition notice.

What is a breach of condition notice?

 A breach of condition notice may be served by the Local Authority under section 187A Town and Country Planning Act 1990 where planning permission has been granted for the development of land, subject to conditions, and some of the conditions have not been complied with. The breach of condition notice is intended to operate as an alternative method of enforcing a planning condition. It may be used instead of or alongside an Enforcement Notice – see my previous blog article on Enforcement Notices here.

A breach of condition notice may be served on any person who is carrying out or who has carried out the development, or any person having control of the land, and will require him to secure compliance with the conditions as specified in the notice. The notice shall specify the steps which the local authority consider ought to be taken, or the activities which the local authority consider ought to cease.

If the breach of condition notice is not complied with, within the specified time, the person responsible is guilty of a criminal offence under section 187A (9) of the Town and Country Planning Act 1990; this means the breach of condition notice is an extremely serious legal document. The legislation does provide for a defence for a person charged with an offence under subsection (9), and I give an outline of this below, but if you are worried about the consequences of non-compliance with a breach of condition notice, you should seek specialist advice as soon as possible.

What is the ten year ‘immunity’ rule?

No enforcement action can be taken if the breach of a planning condition first occurred more than 10 years ago (or, in the case of a condition relating to use as a single dwelling house where the breach was more than 4 years ago). This only applies where no enforcement action has previously been taken during the 10 years. Specialist advice should be sought in individual cases, however, as this and other ‘immunities’ from breach of condition notice involve complex considerations and so should not be taken as a blanket immunity. Do not ignore a breach of condition notice, even if it relates to a breach which occurred more than 10 years ago!

Who can the breach of condition notice be served on?

Section 187A(3) Town and Country Planning Act 1990 states that the person on whom the breach of condition notice has been served is “the person responsible.” Usually, a breach of condition notice should only have one recipient. That recipient will be in breach of the notice if the conditions specified in the notice are not complied with, the steps specified in the notice have not been taken or activities specified have not ceased, within the compliance period given by the notice. It is that person who will be guilty of a criminal offence. Therefore, if you are the recipient of a breach of condition notice, it is crucial to obtain specialist advice quickly – even if the breaches have occurred as a result of someone else’s action or inaction.

Are there any limits on the terms a breach of condition notice?

Section 187A(4) Town and Country Planning Act 1990 means that a breach of condition notice can only be served where the conditions which have not been complied with are conditions regulating the use of the land. If this is not the case then there may be scope to challenge the notice. This therefore poses the question....

Can I appeal a breach of condition notice?

There is no statutory right of appeal to a breach of condition notice in the same way that there is to a planning enforcement notice. This does not mean that the notice cannot be challenged though as appeal by way of by way of Judicial Review to the High Court. Readers should be aware that strict time limits apply to Judicial Review applications.

How long do I have to comply with a breach of condition notice?

The breach of condition notice itself must specify how long you have to comply with the condition to which the notice relates. You should have at least 28 days beginning with the date of service of the notice. This period may be extended by the Local Authority by serving another notice.

Will I be prosecuted if I don’t comply with breach of a condition notice?

The Local Authority may seek to prosecute you in the Magistrates’ Court for the offence of contravening a breach of condition notice, if you do not ensure compliance with all of the conditions specified in the notice, within the period allowed by the notice.

What is a defence to breach of a breach of condition notice?

Section 187A(11) of the Town and Country Planning Act 1990 sets two possible defences. Firstly, that the person charged with the offence took all reasonable measures to secure compliance with the conditions specified in the notice or secondly, that where the notice was served on him as being a person ‘having control of the land’ that he no longer had control of the land.

What is the sentence if I am found guilty of being in breach of a condition notice?

If you are found guilty of an offence you will be liable to a fine not exceeding level 4 on the standard scale if the land is in England or a fine not exceeding level 3 on the standard scale if the land is in Wales.

The scale for fines is occasionally varied by government but can be found here. 

At present a level 3 fine is £1000 and a level 4 fine is £2500.

If you find yourself served with a breach of condition notice and do not know what to do or if you find yourself facing proceedings for breach of such notice you should seek specialist legal help as soon as possible. Quentin Hunt is a Barrister who accepts instructions both through solicitors and directly from members of the public; he specialises in cases involving planning enforcement issues. You may contact Quentin directly for a free no obligation conversation about your case.