Breach of condition notice: the no-appeal route

A breach of condition notice is the enforcement tool a council reaches for when planning permission exists but a condition attached to it has not been complied with. It is served under section 187A of the Town and Country Planning Act 1990, it gives a compliance period of at least 28 days, and there is no right of appeal to the Planning Inspectorate against it. That last point catches most landlords and small developers off guard. An enforcement notice can be appealed, and lodging the appeal suspends it. A breach of condition notice keeps running while you argue.

So if one lands on your doormat, the clock matters more than the argument.

What the notice does and who it binds

Section 187A lets the local planning authority serve the notice on any person who is carrying out or has carried out the development, and on any person having control of the land. For a converted house let to tenants, that usually means the freeholder and often the managing agent as well. Both can be served. The notice must identify the condition that has been breached and specify the steps to be taken, or the activities to cease, to secure compliance.

It can be served whether or not an enforcement notice has already been issued for the same matter. Councils sometimes run both in parallel: the enforcement notice deals with the unauthorised building work, the breach of condition notice deals with the condition on the earlier permission that was ignored.

Typical triggers on small residential schemes are familiar ones. A condition requiring bin and cycle storage to be provided before first occupation, and it never was. A landscaping condition with a planting season deadline that passed two winters ago. An occupancy restriction on an annexe. A condition limiting the number of bedrooms or restricting use to a named class.

Why there is no appeal, and what you have instead

Parliament designed section 187A as a summary route. The condition was imposed on a permission you accepted, and the merits of that condition were open to challenge at the time, either by not implementing the permission or by appealing the condition under section 78. Once the permission has been implemented, the statutory position is that the condition binds the land and the council should not have to re-argue it.

The practical consequence is that the only direct challenge is judicial review in the Administrative Court, on public law grounds: the notice is defective on its face, the condition does not mean what the council says it means, the authority acted for an improper purpose. Judicial review is expensive and the time limit is short. Most recipients are better served by complying and then applying to change the condition properly.

There is one route that is often overlooked. If you believe the condition has in fact been complied with, or that the condition does not apply to what you are doing, you can apply for a lawful development certificate under section 191 or 192. A certificate is a formal determination rather than an opinion, and it gives you something to put in front of the enforcement officer.

The compliance period and the offence

The compliance period runs from service and cannot be less than 28 days. Councils often give longer where the steps take time, for example where a condition requires a scheme to be submitted and approved before works continue. If the period expires and the condition is still not complied with, the person responsible commits a summary offence. Section 187A sets the maximum fine by reference to the standard scale, and the level has been amended more than once, so check the current text on legislation.gov.uk before advising anyone on exposure.

The offence is not a one-off. Where the breach continues, the authority can prosecute again on fresh facts, which is why councils treat the notice as a ratchet rather than a single shot. A council can also withdraw the notice by written notice, and withdrawal does not stop it serving another one later.

One quiet risk sits underneath all of this. A live breach of condition notice, or an unresolved prosecution, will show up on local authority searches and can stall a sale or a refinance long after the planning issue itself is dull.

Defences that actually work

Section 187A provides two defences, and they are narrower than most people expect.

1. That the defendant took all reasonable measures to secure compliance with the condition. This is a defence about effort and evidence, not intention. Instructions to a contractor, a paid order for the bin store, correspondence chasing a landscaping firm and dated photographs all help. A statement that you meant to get round to it does not.
2. For a person served as someone having control of the land, that they no longer had control of the land at the relevant time. Dated completion statements or a signed surrender of a lease support this. An informal arrangement with a relative does not.

Neither defence lets you reopen the planning merits of the condition. A magistrates court hearing a section 187A prosecution is not the place to explain that the parking condition was unreasonable.

Choosing between a breach of condition notice and an enforcement notice

The two instruments do different jobs, and the choice tells you something about how the council sees the case.

A council that wants a quick, unappealable result on a clear-cut condition breach uses section 187A. A council that wants to remove a building, or that is unsure whether a permission was validly implemented at all, uses an enforcement notice because it needs the wider powers and can live with an appeal.

Time limits sit behind both. The Levelling-up and Regeneration Act 2023 brought the immunity periods in England into line at ten years for breaches occurring on or after the date those provisions took effect, replacing the old four-year rule for operational development and change of use to a single dwellinghouse. Older breaches keep the rules that applied when they occurred, so the date of the breach is the first thing to pin down. Verify the position on when that took effect on legislation.gov.uk before relying on it.

Applying to change the condition rather than fight it

If the condition is truly unworkable, the honest answer is to apply to vary or remove it under section 73 rather than to ignore it. A section 73 application is determined as a fresh application limited to the condition in question, and the authority can impose different conditions or refuse. It carries a fee and a determination period, and it can be extended by agreement in the same way any other application can, which is worth knowing when a compliance period is running in parallel. The extension of time agreement does not pause the breach of condition notice, though. Only the council agreeing to hold off does that, and you should get that in writing.

Where the change is trivial, a wording tweak or a minor dimension, the section 96A non-material amendment power is faster and costs less. It cannot be used to remove a condition that does real work, and officers refuse over-ambitious applications routinely.

Applying does not suspend the notice. Say so to your client in writing before they assume otherwise.

An illustrative example

Take a two-storey rear extension approved with a condition requiring obscure glazing to a first-floor flank window before first occupation. The owner glazed it clear, the neighbour complained, and a breach of condition notice arrived with a 28-day period. The owner has three sensible options: fit obscure glazing and photograph it dated, apply under section 73 to substitute a condition allowing clear glazing above a set cill height with supporting overlooking analysis, or do both and treat the section 73 as the long-term fix. Fighting the notice itself gets nowhere. This example is illustrative.

What to do in the first week

Read the notice against the decision notice it refers to and check that the condition number and wording match. Mistakes happen, and a notice that cites a condition from a superseded permission is vulnerable. Diary the compliance date immediately. Work out whether compliance is physically possible inside the period, and if it is not, write to the case officer with a programme and ask for a longer period before the deadline rather than after it.

Then decide which track you are on: comply, certify, or apply. Most cases resolve on the first. Where the underlying problem is that the original submission never dealt properly with amenity, drainage or parking, the evidence you should have filed first time is usually what unlocks a section 73 now, and the report types grouped by category are a reasonable place to work out which evidence that is.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.

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