Planning enforcement and COVID-19

Richard Harwood QC considers how Covid-19 might impact upon Planning Enforcement and, in particular, the effect of interruptions on the ability to establish lawful use or breach of condition by the passage of time.

The impacts of Covid-19 raise a number of planning enforcement issues. Common sense and reasonable judgment will play an important, but not sufficient, role in seeking to resolve these problems.

In enforcement terms the crisis will have two phases. The first is the lockdown and social distancing period, when certain activities are banned, made impractical by guidance or, conversely, are positively encouraged, such as takeaways and new hospitals. The public mood is supportive of what needs to be done and generally tolerant. Occasional outbreaks of officiousness, more from the police rather than local authorities, tend to be quickly ridiculed away by the press and social media. The second phase will be after the legal restrictions and most practical guidance have been lifted, but businesses and individuals are staggering to recover from the economic impact. Sites may be closed down, sales and trading delayed or temporary uses still continuing. Tolerance of activities which would not usually be permitted may diminish.

One enforcement issue – and the topic of this note – is the effect of interruptions on the ability to establish lawful use or breach of condition by the passage of time.

Uses carried on without planning permission

If land is being used without planning permission then to become lawful by passage of time then it must be in that unlawful use for the duration of the relevant four-, five- or ten-year period. [1] The breach of planning control whose lawfulness is being considered must be the same breach of control as at the start of the period. Whether a use is being carried out within this period is synonymous with whether enforcement action can be taken. If at that particular time an enforcement notice could be issued, then time is counting towards the limitation period: see Thurrock. [2] There may be periods where the activity is not being carried out but the use continues, for example, because it is the weekend or the factory’s summer holiday. [3]

Continuity will be affected by the nature of the breach. For example, a residential use of a building will be taking place if the building is equipped and furnished for domestic use, even if there is no one living there. [4] In some cases there may be gaps in occupation, for example in breaks between tenants or when refurbishment works are being carried out. It will be a matter of fact and degree whether such a period brings the use to an end before the time limit expires. [5] Where the use has become lawful before the break, then a temporary cessation (without any new use intervening) will not end the use.

There is the potential for interruption in the use if the activity ceases because it is prohibited by the lockdown, or becomes practically or financially impossible and its resumption may be frustrated by the business’s circumstances. The only real comparison in recent times has been the closure of large areas of the countryside because of foot and mouth disease in 2001. In Miles v National Assembly for Wales [6] this had caused motorcycling activities on a farm to cease on for between 12 and 18 months. In the ensuing enforcement notice appeal the Inspector found that this was a sufficient interruption to stop the accrual of immunity from enforcement action. Following Thurrock, Lloyd Jones J held:

“During the period of the foot and mouth outbreak there could have been no question of enforcement action. Accordingly this period cannot count towards the stipulated period for the accrual of immunity.”

Whilst in that case the landowner had intended to resume the motorbike use, it was:

“immaterial for present purposes that the interruption in the use was not the result of a freely made choice on the part of the Claimant. In the present context what matters is that the objectionable use actually ceased and there was no longer any need or opportunity for the local planning authority to take enforcement action.”

Whilst a matter of fact and degree, the Inspector was entitled to consider that the interruption in the Miles case did start the 10-year period again.

Breach of condition

Time runs on a breach of condition as long as it is the same breach of condition. Often it is said that a breach has to have continued or been continuous for the period, but neither term is in the statute. Legislation simply refers to a period beginning with the date of the breach. Whether a breach has continued or been continuous may be a helpful way of applying the test in most cases, but it is not the test itself. Some breaches continue at every moment after the period for compliance (for example, a condition requiring noise attenuation to be installed prior to the occupation of a building would be breached from the time that occupation began until the installation of the measures). Other breaches have been considered to have taken place even if they have not been carried on at every moment. For example, breach of a condition restricting the occupation of holiday bungalows to a period between March and November each year was lawful because it had been carried on for more than 10 years. A fresh breach did not start each November and end in March of the following year. [7] Similarly a condition prohibiting the operation of a factory on Sundays or a restaurant being open beyond midnight could be breached for more than 10 years even though the breach would only be carried on at particular times or days. Sullivan J observed in North Devon: [8]

“I would accept that questions of fact and degree will inevitably arise, for example, where the factory in this example has not been used on each and every Sunday, but on a few, some, or most, Sundays during each year. Such questions of fact and degree do not arise in the present case, and they will have to be resolved on a case by case basis.”

The question may then arise whether a breach of condition has been ended by the lockdown or its economic consequences and so a future contravention would be a new breach of condition, for which time must start running again. That will be affected by the nature of the condition, the nature of the breach and the duration of the interruption.

Already lawful uses

Where a use has been lawful by passage of time before a coronavirus inspired shutdown, then it will almost certainly be retained: in the absence of a material change of use occurring, lawful uses will only very rarely be abandoned. [9]

Richard Harwood QC is a barrister at 39 Essex Chambers. He is the author of Planning Enforcement, the third edition of which is being published by Bloomsbury Professional on 30th April 2020. Richard can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..

[1] Four years for the change of use of a building to a dwellinghouse and ten years for any other change of use in England and Wales (town and Country Planning Act 1990, s 171B); five years for any breach in Northern Ireland (Planning Act (Northern Ireland) 2011, s 132).

[2 ] Thurrock Borough Council v Secretary of State for the Environment [2002] EWCA Civ 226 at paras 15(iii), 25 per Schiemann LJ; Swale Borough Council v First Secretary of State [2005] EWCA Civ 1568, [2006] JPL 886 at para 25 per Keene LJ.

[3] Thurrock at para 28 per Schiemann LJ.

[4] See North Cornwall District Council v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 2318 (Admin), [2003] JPL 600 at para 32 per Sullivan J.

[5]  In Islington London Borough Council v Secretary of State for Housing, Communities and Local Government [2019] EWHC 2691 (Admin) renovation works had been so extensive that the unlawful use of the premises would not have been apparent and so enforcement was not possible in that period and the time period was broken.

[6] [2007] EWHC 10 (Admin), [2007] JPL 1235.

[7]  North Devon District Council v First Secretary of State [2004] EWHC 578 (Admin), [2004] JPL 1396.

[8] See North Devon at paras 24, 25 per Sullivan J.

[9] See Castell-Y-Mynach v Secretary of State for Wales [1985] JPL 40.