A recent decision of the Court of Appeal of England and Wales on temporary permission for holiday bungalows and enforcement of conditions after the permission had lapsed will be of some interest to other developers with temporary permissions (such as for wind farms).
In brief, conditions applying to a temporary permission cannot be enforced if 1) the temporary permission has lapsed and 2)thereafter the planning authority has failed to enforce the cessation of the permitted use or removal of the temporary development so that 3) the development becomes immune from enforcement.
The planning authority had granted temporary permission for development of a number of holiday bungalows between 1964 and 1973. These were subject to conditions including, first, that the permission would expire and land be restored at specified dates between 1985 and 1995, and second, that the bungalows should only be occupied from 1 March to 31 October. The bungalows were still standing in 2009, long after the temporary permissions expired, though they continued to be used only between March and October.
The owner applied for a certificate of lawfulness for the use of the bungalows as a dwelling house, referring to use class C3 (the rough equivalent of Scotland’s class 9). This was refused by the inspector on the basis that the condition restricting occupation had never been breached and so still applied.
The Court quashed the inspector’s decision. It held that any condition must relate fairly and reasonably to the permitted development, which was a temporary development. Therefore the condition did not continue to apply permanently to the bungalows long after the time at which the planning authority could require their removal. So the houses can now used at any time of year although that had never been the case previously.
It’s also worth noting that breach of a condition requiring removal of buildings permitted under a temporary permission becomes immune from enforcement after 10 years
On August 16, 2011