Discontinuance notices for an established use
Section 102 of the Town and Country Planning Act 1990 lets a council require a lawful use to stop, with compensation for depreciation, disturbance and abortive expenditure. The cost is why the power is rarely used.
A discontinuance order can require a lawful use to stop. That is what makes it unusual: enforcement notices deal with breaches of planning control, whereas a discontinuance notice planning authorities issue under section 102 of the Town and Country Planning Act 1990 can be aimed at a use that has planning permission or is otherwise immune from enforcement. The price of that power is compensation, and the compensation is why you will probably never see one.
What a discontinuance order does
Section 102 lets a local planning authority make an order where it appears to the authority that it is expedient in the interests of the proper planning of its area, including the interests of amenity, having regard to the development plan and to any other material considerations.
The order can do three things. It can require a use of land to be discontinued. It can impose conditions on the continuance of a use. And it can require buildings or works to be altered or removed.
Each of those is aimed at the existing position rather than at something proposed. A takeaway operating lawfully under a permission granted twenty years ago, a scrapyard with established use rights, a vehicle repair business in a residential street with immunity from enforcement: all are within the scope of section 102 and none of them is within the scope of an enforcement notice.
A separate power in the Act allows the Secretary of State to make such an order where the authority has not.
Why it is rarely used
Compensation is the answer, and it is not a small sum.
Where an order takes effect, the Act entitles a person with an interest in the land to compensation for depreciation in the value of the interest, for disturbance in giving up occupation, and for expenditure rendered abortive by the order. For a going concern that means the loss of the business value attributable to the site, the cost of relocation and the written-off cost of fitting the premises out.
A council contemplating an order is therefore contemplating a payment it has to find from its own resources, with no mechanism to recover it from anyone else. Add the officer time, the confirmation process and the risk of a contested inquiry, and the calculation almost always points elsewhere.
Authorities use the power occasionally, usually where the amenity harm is serious, long-standing and incapable of being addressed any other way, and often where the land is wanted for a scheme the council itself supports.
Confirmation by the Secretary of State
An order made under section 102 has no effect until it is confirmed by the Secretary of State, with or without modifications.
The confirmation stage gives the affected owner and occupier a right to be heard. Notice has to be served on owners and occupiers, objections can be made, and where an objection is maintained there is an opportunity for a hearing or local inquiry before an inspector.
That stage does two things for the recipient. It provides a forum in which the planning merits can be tested properly, including whether the harm alleged is real and whether a lesser measure would address it. And it adds months, which in practice gives time to negotiate. Where the Secretary of State takes an interest in a case of wider importance, the position can shift again, as our note on call-in under section 77 and what triggers it explains in the application context.
Compensation consequences
Three heads of claim matter, and the valuation discipline is closer to compulsory purchase than to planning.
Depreciation in the value of the interest is the difference between the value of the land with the use and its value without. On a site whose value rests almost entirely on an established commercial use, that difference can approach the whole value.
Disturbance covers the cost of giving up occupation: removal, re-establishment elsewhere, loss of profit during the move, and in some cases total extinguishment of the business where relocation is impossible. Abortive expenditure covers work done in reliance on the use continuing, such as recent plant installation.
Claims are made to the authority, and the Act and its regulations set the procedure and time limits. Take valuation and legal advice promptly rather than waiting for the order to take effect, because evidence of trading performance and fit-out cost is easier to assemble while the business is running.
Advertisement discontinuance compared
The term discontinuance notice is far more often encountered in advertisement control, and the two mechanisms are quite different.
Under the advertisement control regulations, a local planning authority can serve a discontinuance notice requiring the display of an advertisement that has deemed consent to stop, or requiring the use of a site for that display to cease, where it is necessary to remedy a substantial injury to amenity or a danger. There is a right of appeal to the Secretary of State.
No compensation is payable, which is why advertisement discontinuance notices are used regularly while section 102 orders are not. If you have received something described as a discontinuance notice, establish first which regime it is under, because the consequences and the response are different.
Alternatives available to councils
Before reaching for section 102, an authority has lower-cost options, and understanding them helps you anticipate what will actually land on the doormat.
| Tool | Used when |
|---|---|
| Enforcement notice | The use is a breach of control and not immune |
| Revocation or modification order under section 97 | A permission has not yet been implemented, also with compensation |
| Abatement notice under environmental protection law | Noise, odour or smoke amounts to a statutory nuisance |
| Licensing or permit review | The activity is separately licensed or permitted |
| Article 4 direction | Future permitted development needs controlling |
| Negotiated relocation or voluntary cessation | The authority has a carrot as well as a stick |
The abatement notice route is the common substitute. Where the real complaint is noise from plant or odour from extraction, environmental health officers can act under their own powers without compensation, and a well-evidenced Noise Impact Assessment is often the fastest way for an operator to head that off.
What to do if one is served
Work through five steps in order.
- Identify the statutory power. Section 102 of the 1990 Act and an advertisement discontinuance notice are different instruments with different rights.
- Check whether the order has been confirmed. An unconfirmed section 102 order has no effect, and the confirmation stage is where the substantive argument happens.
- Diarise every deadline for objections, representations or appeal, and do it the day the notice arrives.
- Instruct a valuer as well as a planning adviser, and start assembling trading accounts, fit-out invoices and relocation evidence.
- Put a planning case together on the merits, because the order has to be justified in the interests of proper planning and amenity, and a Planning Statement addressing the harm alleged and the alternatives available is the core of the response.
This is general guidance, not legal advice. Take advice from a qualified professional on any notice you receive before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.
Frequently asked questions
Can a council stop a use that has planning permission?
Yes, through a discontinuance order under section 102 of the Town and Country Planning Act 1990, where it appears expedient in the interests of the proper planning of the area including amenity. That is what distinguishes it from an enforcement notice, which deals only with breaches of planning control that are not immune.
Is compensation payable for a discontinuance order?
Yes. A person with an interest in the land can claim for depreciation in the value of that interest, for disturbance in giving up occupation, and for expenditure rendered abortive by the order. On a site whose value rests on an established commercial use, the depreciation element can approach the full value.
Does a section 102 order take effect immediately?
No. It has no effect until confirmed by the Secretary of State, with or without modifications. Owners and occupiers must be notified, objections can be made, and a maintained objection gives an opportunity for a hearing or local inquiry. That stage is where the planning merits are properly tested.
How is an advertisement discontinuance notice different?
It is served under the advertisement control regulations to stop the display of an advertisement that has deemed consent, where that is needed to remedy substantial injury to amenity or a danger. There is a right of appeal to the Secretary of State and no compensation is payable, which is why these notices are used far more often.
What is a council more likely to do instead?
Serve an enforcement notice where the use is a breach, use an abatement notice under environmental protection law where the complaint is really noise or odour, review a separate licence or permit, make an Article 4 direction to control future permitted development, or negotiate a relocation. All avoid the compensation exposure.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.