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Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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A planning permission was granted for a summer house in 1990

Resolved Question:

A planning permission was granted for a summer house in 1990 with condition 1 providing that the building permitted shall be removed and the land restored to its former condition on or before November 1995.

Permissions of this type are described as permission granted for a limited period/temporary permissions (S.72 1990 Act). Cases in text books suggest that a planning condition attached to a temporary planning permission does not remain in force once the time limit condition has become unenforceable.

In this scenario, the building has now become lawful and is immune from enforcement action - its removal was required in 1995 and it remains in place more than 10 years after.

Where a certificate of lawfulness application is submitted for breach of the condition 1, the question is what is the route by which lawfulness was gained?

a) If it is said that the condition attached to a temporary permission is no longer in force when the time limit condition has become unenforceable, can it then be correct to say lawfulness has been gained by breach of the condition, and describe the certificate of lawfulness application as ‘breach of condition 1 of planning permission…’ If the condition is no longer in force, this suggests it cannot be breached. So is is lawfulness gained by ‘breach of condition 1’? And is that the appropriate way to describe the application?

or
b) As the time limit condition is no longer in force, has the breach gained lawfulness outside the terms of the permission such that it would be considered unauthorised development? If so would the appropriate description re the certificate of lawfulness be something like ‘retention of the building on the land’ rather than ‘breach of condition’?
Submitted: 1 year ago.
Category: UK Law
Expert:  Stuart J replied 1 year ago.
I would ignore the original condition. It could have been removed in 1995 and replaced in 1997!
It is 10 years plus use in place without enforcement action.
ie since 1995
Customer: replied 1 year ago.

 


The building is the same one that has been in place since the permission was granted. However, although the condition is no longer in force, factually it was breached.


 


a) For purposes of a certificate of lawfulness would it be appropriate to say ‘breach of condition of planning permission…’, or something similar to ‘retention of building on the land…’


 


b) At what point would one stop referring to it as breach of condition 1 of the planning permission?

Expert:  Stuart J replied 1 year ago.
I would actually never refer to it as a breach of condition 1. I would let the local authority, with that. I would say retention of building on land since 1990.
Stuart J, Solicitor
Category: UK Law
Satisfied Customers: 20902
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street practice
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