Kayleigh Chapman, solicitor in Blandy & Blandy’s planning & environmental law team, explains why it would be unwise to ignore matters if you are served with a breach of condition notice (BCN).
Where a breach of planning control has occurred local planning authorities have a wide range of tools available to attempt to remedy the breach including enforcement notices and breach of condition notices.
We have previously published a number of articles relating to enforcement notices. Unlike enforcement notices which can be appealed by the persons on which they are served, breach of condition notices cannot be appealed.
The only way by which a BCN can be challenged would be judicial review challenging the lawfulness of issuing such a notice on traditional public law grounds.
The powers to issue BCN are contained within Section 187A of the Town and Country Planning Act 1990 and can be used to secure compliance with planning conditions (whether imposed on a specific planning permission or Permitted Development Rights).
In November 2017, planning permission was granted for the erection of seven dwellings. This permission was subject to a number of planning conditions including a condition requiring completion of a landscaping scheme following construction of the dwellings.
This planting was not carried out by the developer and in 2019 the council visited the site and requested that the landscaping be carried out by the end of June that year.
The work was not carried out and further correspondence was sent later in 2019 confirming that if works were not carried out within 28 days a BCN would be served.
The works were not carried out and in early 2021 a BCN was served on the developer requiring compliance with the condition within 28 days of service.
The BCN was ignored and the council prosecuted the developer for non-compliance with the BCN. The developer failed to respond to the court proceedings and was found guilty in his absence.
The court issued a fine of £2,500, an order for costs of £487 and a victim surcharge of £190.
Non-compliance with a BCN is a continuing offence. This means if the condition is not complied with the council could prosecute the developer further. In those circumstances the fine issued is likely to increase significantly for each additional offence charged.
The BCN is a useful tool for local planning authorities as there is no appeal available, accordingly the notice can take effect more quickly and is not subject to lengthy appeal proceedings.
If you are served with a BCN, you are urged to seek advice as soon as possible as to the validity of the notice and way forward.
For further information or legal advice, please visit www.blandy.co.uk, contact law@blandy.co.uk or call 0118 951 6800.
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