When taking enforcement action, it can be difficult for the planning authority to decide whether the breach is development without planning permission or breach of condition.
The Court of Session in a recent decision on an enforcement notice appeal dealt with a site with planning permission for a change of use, subject to certain conditions limiting the use (not suspensive conditions that have to be purified before any development can take place). The developer, Doonin Plant, had carried out certain operations, but failed to obey the conditions.
South Lanarkshire Council served an enforcement notice alleging importation, exportation and processing of material without planning permission, even though eight years previously the Council had granted planning permission for use of the site “for recycling of waste material with associated external storage”. One of the conditions required implementation in accordance with plans, and this condition, the Council alleged, had never been adhered to.
Given that the new permitted use was limited by the conditions, had the developer actually initiated development? And after five (or now three) years, had the permission lapsed?
When Doonin Plant appealed, the reporter favoured the Council’s inventive argument, but on further appeal to the Court of Session, Lady Smith did not. She focused on section 27(1)(b) of the 1997 Act which provides that a change of use is initiated at the time when the new use was instituted. She considered that a new use could be instituted even though all its conditions had not been fully implemented. For example, a change from residential to retail use can take place where premises are equipped and limited trading begins before all conditions for instance on car parking, landscaping or time limits on trading have been fulfilled.
Some operations had actually taken place within the five years after the grant of Doonin’s permission. The Council had even written letters complaining of breach of conditions in that permission, and eventually served a planning contravention notice regarding suspected breaches. This was evidence that the permission had been initiated.
There could have been huge implications for developers if the case had gone the other way. It would have gone the other way if any of the conditions imposed had been suspensive, so to that extent it’s a timely reminder.
On February 25, 2011