Breach of condition notice: how it works and why it bites

A breach of condition notice is the enforcement tool with no appeal. Serve an enforcement notice and the recipient can appeal to the Planning Inspectorate on seven statutory grounds, which suspends the notice while the appeal runs. Serve a breach of condition notice under section 187A of the Town and Country Planning Act 1990 and there is no appeal at all. The compliance period runs, and when it expires the breach becomes a criminal offence.

That is why councils reach for it, and why it lands badly on a live site.

What the notice does

Section 187A allows the local planning authority to serve a notice where a planning condition has not been complied with. The notice requires compliance with the condition, either by taking specified steps or by ceasing a specified activity.

It does not require the development to be removed. The condition is the target, so a notice about a construction hours condition requires the hours to be observed, and a notice about a landscaping condition requires the landscaping to be carried out. Where the authority wants the building gone, it needs an enforcement notice instead.

Both can be served over the same development. They are not alternatives, and authorities sometimes use a breach of condition notice for the immediate nuisance and an enforcement notice for the underlying development.

Who can be served

The notice may be served on the person carrying out the development or on any person having control of the land. In practice that means the developer, the contractor, the landowner or an occupier, and more than one person can be served over the same breach.

For a site that has changed hands, this is the point to watch. A purchaser who takes on land where a condition has been breached can find themselves served, because control of the land rather than authorship of the breach is the test. Condition compliance belongs in the due diligence alongside the search of the local land charges register.

The compliance period

The notice specifies a period for compliance, which cannot be less than 28 days from service. The authority can allow longer and often does where the steps take time, such as a landscaping scheme that has to wait for a planting season.

Nothing about the period is negotiable once the notice is served, though authorities in practice will discuss an extension where the recipient is plainly working towards compliance. Get any such agreement in writing. An email from the enforcement officer confirming a revised date is evidence if a prosecution follows.

Why there is no appeal

The policy reason is that the condition itself was appealable. When permission was granted subject to conditions, the applicant could have appealed against those conditions within the statutory period. Parliament took the view that a second bite at the same question, years later and after the development had been carried out, was unnecessary.

Three routes remain open, and none of them stops the clock on their own:

1. Apply under section 73 for permission to develop without complying with the condition, or subject to a different condition.
2. Apply under section 96A for a non-material amendment, where the change is minor in substance.
3. Apply for judicial review of the decision to serve the notice, which is discretionary, expensive and constrained by short time limits.

The first is the usual answer. A section 73 application reopens the condition rather than the permission, and if it succeeds the condition the notice relies on has gone. Where the change really is minor, the non-material amendment route is quicker, though its limits are narrow and an authority will refuse to use it for anything that alters what was assessed. Making that application does not suspend the notice, so the two run in parallel and the prosecution risk continues in the meantime.

Defences in the magistrates court

Failure to comply with the notice after the compliance period is a summary offence prosecuted in the magistrates court, and the fine is set by the court. Each continuing period of non-compliance can found a further prosecution.

The Act provides defences. A person charged as the person carrying out the development can show that they took all reasonable measures to secure compliance with the condition. A person charged as the person having control of the land can show that they no longer had control at the relevant time, and that they took all reasonable measures to secure compliance.

Reasonable measures is a factual question and the bar is real. Instructing a contractor to comply and then not checking is unlikely to be enough. Keeping dated records of what was instructed, what was checked and what was found is the difference between a defence and an assertion.

The court has limited scope to look behind the condition itself. Arguments that the condition was unreasonable, or that the officer should have used a different tool, belong in a section 73 application or a judicial review rather than in the criminal proceedings.

Time limits on service

Enforcement action has to be taken while the breach remains vulnerable. The Levelling-up and Regeneration Act 2023 moved the enforcement time limit in England to ten years for breaches occurring after the date that change took effect, replacing the previous four year limit for certain operational development and changes of use to a single dwelling. Older breaches keep the limits that applied when they became immune, so check the date the change took effect and the date of the breach rather than applying a single rule.

For conditions, the clock generally runs from the breach rather than from the grant of permission, and a continuing breach is a continuing exposure.

Responding without making it worse

Take these steps in order:

• Read the notice and identify exactly which condition it cites and which steps it requires.
• Diarise the compliance date and work backwards from it.
• Check the decision notice to confirm the condition is on the permission as granted and has not been varied or discharged already.
• Check whether the condition has in fact been discharged, including by the deemed discharge route, which applies to some conditions where the authority failed to determine an application in time.
• Comply where you can, in writing, and tell the enforcement officer what you have done.
• Where compliance is impossible, apply under section 73 immediately and say so to the officer.

Silence is the worst response. Enforcement officers have discretion over prosecution, and a recipient who engages, complies with what they can and evidences the rest is in a different position from one who does nothing for six weeks.

Conditions are easier to manage at the application stage than after service. Setting out clearly what each condition will require, and why, in the planning statement tends to produce conditions that are precise enough to discharge.

To see which supporting documents a fresh application is likely to need, browse the report types on PlanScope.

PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval. This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.