What is a Breach of Condition?

When planning permission is granted, it is rarely unconditional. Most permissions are subject to planning conditions. These conditions control how development is carried out or how land and buildings are used.

But what happens if a condition is not complied with? When does a “breach of condition” arise? And can such a breach ever become lawful through the passage of time?

This guide explains the key principles in straightforward terms, drawing on the relevant law and case law.

What Is a Planning Condition?

A planning condition is a binding restriction or requirement attached to a planning permission. Conditions might:

• Specify approved plans or materials

• Request additional technical details

• Restrict hours of opening

• Limit who can occupy a dwelling (e.g. agricultural occupancy conditions)

• Restrict use to certain seasons

• Require parking spaces to be retained

Failure to comply with any such requirement is a breach of planning control.

Under section 171A of the Town and Country Planning Act 1990, a breach of planning control includes carrying out development without permission or failing to comply with a condition.

The 10-Year Rule for Breach of Condition

Since 1992, every breach of condition has been subject to a 10-year immunity period under section 171B(3) of the 1990 Act.

This means that if a condition has been breached continuously for 10 years, without enforcement action being taken, that particular breach can become lawful.

There is one important exception: if the condition restricts use as a single dwellinghouse, the four-year rule in section 171B(2) may apply instead, subject to transition arranagements in the Levelling-up and Regeneration Act 2023.

Understanding which time limit applies is critical.

One-Off vs Continuing Conditions

A key distinction in breach of condition cases is whether the condition is:

1. A “Once and for All” Condition

These are conditions that can only be breached once. For example:

• A condition requiring a building to be constructed in specific materials.

If the wrong materials are used, the breach occurs at the point of construction. The 10-year clock starts then and runs continuously.

2. A Continuing Requirement Condition

These impose an ongoing obligation. Examples include:

• Restrictions on occupancy (e.g. agricultural workers only)

• Opening hours conditions

• Seasonal occupancy restrictions

• Requirements to retain parking spaces for specific users

These conditions can be breached repeatedly over time.

What Happens If a Continuing Breach Stops?

If a continuing requirement condition is breached, but then compliance resumes, the legal position becomes more complex.

If the compliance is genuine and significant (not trivial or “de minimis”), the breach is treated as having ended. If the condition is later breached again, the 10-year clock starts afresh.

The test is one of fact and degree. The key question is:

Could enforcement action have been taken during the period of alleged compliance?

This principle was considered in Nicholson v SSE & Maldon DC and applied in Ellis v SSCLG, where the court confirmed that a lawful use right acquired through a breach of a continuing condition can be lost by later compliance — even if a Lawful Development Certificate (LDC) has been granted.

Periods of Vacancy and Seasonal Use

Several cases illustrate how subtle this area can be.

In Basingstoke and Deane BC v SSCLG & Stockdale, a substantial period of non-occupation for refurbishment did not bring a breach to an end. The court found that the underlying breach had not truly ceased.

In North Devon DC v FSS & Stokes, the court held that a breach of a seasonal occupancy condition could become lawful through 10 years of occupation outside the permitted season — even though there were compliant periods within each year.

The message is clear: context and evidence are everything.

Partial Immunity

Sometimes only part of a condition becomes immune.

In R (St Anselm Development Co Ltd) v FSS & Westminster CC, a condition required a whole car park to be retained for use by certain occupiers. Most (but not all) spaces had been used by others for over 10 years. Only those specific spaces became lawful. The rest remained subject to the condition.

This demonstrates that immunity can attach to specific elements of a breach — not necessarily the condition as a whole.

Can a Lawful Breach Be Lost?

Once a breach becomes lawful through the passage of time, it is not automatically lost simply because it is not exercised.

In R (Ocado) v Islington LBC, the court confirmed that the 4- or 10-year period can be any qualifying period — not necessarily the period immediately before the enforcement notice.

However, a lawful breach of a continuing requirement condition can be lost through subsequent genuine compliance.

Enforcement Notices and Appeals

If an enforcement notice is served alleging breach of condition, an appeal can be made under ground (d) — arguing that the breach is immune due to the passage of time.

If the Inspector finds that a continuing condition has been breached for a full 10-year period without significant interruption, that specific breach is lawful — even if it is not occurring at the date the notice was issued.

How to Resolve a Breach of Condition

If you discover a potential breach, options may include:

• Submitting a retrospective application

• Applying under section 73 to vary or remove the condition

• Applying for a Lawful Development Certificate

• Appealing an enforcement notice

• Negotiating informally with the local planning authority

The correct route depends on the nature of the condition, the length of breach, and the available evidence.

Evidence is critical. Council Tax records, utility bills, tenancy agreements, business records and statutory declarations are often decisive.

Breach of condition cases are rarely straightforward. The distinction between one-off and continuing conditions, the impact of temporary compliance, partial immunity, and the risk of losing accrued rights all require careful legal and factual analysis.

A misstep — such as resuming compliance without understanding the consequences — can reset the clock and undermine an otherwise strong immunity case.

If you believe you may be in breach of a planning condition, or have received an enforcement notice, professional planning advice is strongly recommended.

About me

Andrew Ransome is the planning director at ADP and is a chartered member of the RTPI, with over 22 years of town planning experience.

Andrew has extensive experience offering strategic planning solutions to challenging projects in both rural and urban settings. Follow him on Linkedin.

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