Discontinuance orders and stopping an existing lawful use

A discontinuance order is the planning system's blunt instrument for closing down a use that is perfectly lawful. Most enforcement powers deal with breaches: building without permission, ignoring a condition, running a use that was never authorised. Section 102 of the Town and Country Planning Act 1990 does something else. It lets a local planning authority order an existing lawful use to stop, impose conditions on its continuance, or require buildings and works to be altered or removed. Compensation follows almost automatically, and the authority pays it. That single fact explains why councils talk about discontinuance orders far more often than they make them.

What the order can require

Section 102(1) offers three things an authority can do by order, and they can be combined. It can require that a use of land be discontinued. It can allow the use to carry on but only subject to conditions it specifies. Or it can require any buildings or works on the land to be altered or removed.

The order attaches to the land rather than to a particular occupier, so selling up does not escape it. An order may also grant planning permission for development of the land it covers, which is how an authority deals with the obvious follow-on question of what the site is supposed to do next. A scrapyard shut down under section 102 leaves a hole in the street; the order can set out what replaces it.

Mineral sites sit under a parallel regime in Schedule 9 to the Act, with prohibition orders, suspension orders and revocation powers designed around workings that have stalled or been abandoned. The compensation rules there differ, and a mineral case should never be argued from the section 102 text alone.

The test an authority has to meet

The power turns on expediency. An authority may make an order where it appears 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.

Read that carefully, because two phrases carry the weight. "Proper planning of their area" is a positive planning judgement, not a response to a run of complaints. And the reference to the development plan pulls in section 38(6) of the Planning and Compulsory Purchase Act 2004, so an order that cuts across an adopted allocation is hard to defend.

Amenity is expressly in scope, which is why the cases that surface tend to involve noise, dust, smell, heavy vehicle movements or a use that has crept up on housing built around it. Being unpopular is not enough. The authority has to show that the planning merits of stopping the use outweigh the harm of taking away something lawful.

Confirmation by the Secretary of State

An order made under section 102 does nothing until it is confirmed. Section 103 sets out the route. The authority serves notice on the owner and occupier of the land and on anyone else who in its opinion will be affected, giving a period in which they may object.

If objections are made and not withdrawn, the affected parties must be given the chance to be heard before an inspector, which in practice means a local inquiry with evidence, cross-examination and costs applications. The Secretary of State may confirm the order as made, confirm it with modifications, or decline to confirm it. There is also a reserve power for the Secretary of State to make an order directly after consulting the authority, used very sparingly. It sits in the same family as a holding direction: central government stepping into a local decision because the wider public interest is engaged.

Compensation and why it decides most cases

Section 115 is the provision that stops authorities reaching for section 102. Where an order is confirmed, a person with an interest in the land who suffers damage can claim compensation from the authority. That covers depreciation in the value of the interest, disturbance in the enjoyment of the land, and the reasonable cost of carrying out any works of alteration or removal the order requires.

Where the use is a trading business, the claim is not confined to the fall in land value. Disturbance, the cost of relocating plant and the loss attributable to closing a going concern can all form part of it. Claims are made to the authority and disputes go to the Upper Tribunal (Lands Chamber). Time limits for claiming are set in regulations rather than the Act, so check the current position before relying on any deadline you have seen quoted.

A mid-sized commercial use in an urban area can therefore produce a compensation bill that dwarfs the authority's entire development management budget for the year. Members see that figure in the committee report. Most stop there.

Compliance, and what happens if the order is ignored

A confirmed order specifies the steps required and the period allowed for taking them, and that period has to be realistic. Six months to close a haulage yard is a different proposition from six months to remove a portable building.

Contravening a confirmed order is a criminal offence, prosecuted in the magistrates' court. The authority also has a self-help power: it can enter the land, take the steps the order required and recover its reasonable expenses from the person in default. Neither route is quick, and neither recovers the compensation already paid out.

Why the power sits unused

Cost is the first answer, but it is not the only one. An order is slow, because confirmation and an inquiry add months. It is uncertain, because the Secretary of State may decline to confirm and the authority still carries its own costs. It is politically awkward, because the occupier has done nothing wrong.

There is also a design point. Section 102 is a remedy for a planning problem that no other tool reaches: a lawful use in the wrong place, with no application pending and no breach to enforce. Whenever any other tool reaches the problem, that tool costs the authority less.

What authorities do instead

The realistic alternatives run roughly in this order.

1. Check whether the use is actually lawful. Intensification or a drift in activity can amount to a material change of use, which turns the problem into ordinary enforcement with no compensation attached.
2. Use environmental health powers. Statutory nuisance under Part III of the Environmental Protection Act 1990 deals with noise, dust, odour and smoke directly, and an abatement notice costs the authority nothing in compensation.
3. Negotiate conditions on a fresh permission. Operators often want to expand or rebuild, and a section 73 application gives the authority a lawful moment to retune hours, routing and plant. The usual appeal rights apply, including the deemed refusal appeal if nothing is decided in time.
4. Consider revocation or modification under section 97 where a permission has been granted but not yet fully implemented. Compensation is payable there too, under section 107, so it carries the same brake.
5. Buy the interest, or support a relocation, where regeneration funding exists.

For objectors and parish councils, the practical conclusion is unglamorous. Asking a council to make a discontinuance order rarely goes anywhere, and the stronger approach is usually to document the harm, test whether the use has stepped outside what is lawful, and engage at the point when the operator next needs something from the planning system.

If a project of your own brings you to that point, PlanScope can draft the supporting documents an application needs. Browse all 66 PlanScope report types and start a draft, or enter your postcode on the home page to see which ones a site is likely to need.

This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional 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.