When I was a boy going on holidays, it was a habit for my father and I to play chess after lunch. From memory I only beat him once, but I always enjoyed the challenge.
I tended to lose because I was overly focused on the immediate concerns of the game, and always forgot about the back of the board. A long-forgotten bishop would lurch from one end of the board to the other, and my game would be lost. My father would warn me to be aware of things coming out of the dim and distant past to affect the present.
Such a warning could also apply to property with the number of transactions where everyone is moving along very happily, only for a previously long forgotten issue to rear its ugly head is all too familiar. While this can be seen in antiquated restrictive covenants, it is more common in dealing with planning situations.
Everyone is familiar with planning consent in this country – being that certain developments and alterations to buildings will require prior sign off from the Local Planning Authority (LPA). A breach of this planning can lead to various consequences, including (but not limited to) the LPA taking enforcement action. However, this is not an unlimited right; there is a time limit in which the LPA must bring enforcement action. This is either four years or 10 years, depending on the sort of work that has been carried out (see below).
Local authorities do have the ultimate sanction of getting an out-of-time injunction (a Court Order compelling a party to cease an action or tear down an already constructed building) – but given the rarity of these, they are outside the scope of this article (next time maybe…).
Planning permission does sometimes come with conditions. Conditions can be (for example) only to use a property for a certain class of use, or that a new extension cannot be used as a roof terrace etc. The idea being that the LPA can further control how areas are developed and used. The general rule is that if you get planning permission and the planning permission contains conditions for the property in the future, breach of these planning conditions can be actioned 10 years after the event. This can be deeply frustrating for individuals who may not even be aware of the breach at the time they bought.
A recent appeal before the planning inspectorate dealt with a conflict between the four year and 10 year timelines – what happens when someone has altered the change of use of a building (a four-year time limit for enforcement) but it is also in breach of a planning condition (a 10 year time limit for enforcement).
Retrospective planning permission had been granted for the rebuilding of a single storey barn back in March 2011. One of the conditions for the planning consent was that the barn should not be used for any residential purposes.
At some point later, the barn was then converted and used as a residential dwelling. There was no planning for this conversion, so this would be a prima facie breach of planning control under Section 171B of the Town and Country Act 1990 (the four-year time limit), but would also be a breach of the planning permission (meaning the 10 year limit).
The Planning Inspector stated that whilst ordinarily a breach of planning control comprising a failure to comply with planning condition would fall within the 10 year time limit as set out in the above statute, it was held in FSS v Arun District Council and another  EWCA Civ 1172 that the four year time limit would apply where the building was being used as a dwelling house in breach of a condition which serves to prevent that use.
The result was that regardless of whether the breach amounted to a material change of use without planning permission or a breach of a planning condition, the four year time limit under the statue applied – not the 10 year limit.
This case does not involve any new planning law, but the decision is useful. It is a reminder of the immunity period for breach of planning control, and breaches involving a material change of use to a dwellinghouse. There will always be a ticking clock, but for how long said clock must run for is always going to be fact specific.
The full judgment of the case, cited as PINS: Appeal decision: APP/E2205/X/21/3288463 (28 July 2022) can be read HERE.
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This article is intended as a general summary on the law – no reliance should be placed on it.