Why a breach of condition notice cannot be appealed

There is no breach of condition notice appeal. None. Section 187A of the Town and Country Planning Act 1990 created a notice with no route to the Planning Inspectorate, which is exactly why councils reach for it when a condition on a permission has been ignored. If one lands on your doormat as a landlord or converter, the clock starts and the only forums open to you are the council's own reception and, in the last resort, the High Court.

That sounds bleak. It is more workable than it looks, provided you use the compliance period rather than spend it drafting an appeal that cannot be lodged.

What a breach of condition notice does

The notice identifies a planning permission, specifies the conditions that have not been complied with, and states the steps required to secure compliance. It sets a compliance period, which cannot be less than 28 days from service.

It can be served on the person carrying out the development or on any person having control of the land. For a conversion or an HMO that often means the freeholder, the managing agent and the operating company all receive one.

Non-compliance after the period expires is a criminal offence. Not a civil matter, not a planning matter: an offence prosecuted in the magistrates' court, with liability on summary conviction to a fine set by reference to the standard scale. The offence is committed afresh on each day the breach continues, so the exposure is cumulative rather than one-off.

Conditions that commonly attract one in the residential conversion world are the predictable set: occupancy and tenure restrictions, limits on the number of bedrooms or occupiers, cycle and bin store provision, hours of construction, and the requirement to lay out and retain parking before first occupation.

Why the statute gives no appeal right

Parliament designed it that way. When section 187A was inserted in 1991, the enforcement notice regime under section 172 already carried a wide appeal right under section 174, including the ground that planning permission ought to be granted. Councils complained that conditions breaches were being dragged through appeals as a delaying tactic.

The answer was a notice that skips the merits stage altogether. The logic runs like this: the condition was imposed on a permission the applicant accepted, the applicant had a right of appeal against that condition at the time, and the time for arguing about its merits has passed. Whether that logic holds where a site has changed hands twice since the permission was granted is a fair question, and it is one the statute does not engage with.

The consequence for practice is simple. A breach of condition notice cannot be challenged on planning merits anywhere. The only arguments available are legal ones about the notice itself, or factual ones about compliance.

The magistrates court as the only forum

If the council prosecutes, the hearing is in the magistrates' court and the issue is narrow: was the notice validly served, and were the specified steps taken within the period.

The court will not entertain an argument that the condition is unreasonable, that the development is acceptable, or that another council would have taken a different view. Those are planning merits, and the magistrates have no jurisdiction over them. Practitioners used to reading reasons for refusal before deciding whether to appeal find this disorientating, because the familiar merits-based framework is absent.

What the court can consider is whether the notice properly identified the permission and the conditions, whether service complied with the Act, and whether the steps specified were capable of being carried out.

Defences if you are prosecuted

Section 187A provides statutory defences, and they are narrower than most defendants hope.

The main one is that the defendant took all reasonable measures to secure compliance with the conditions specified in the notice. "All reasonable measures" is a high bar, and it is evidential. Correspondence with contractors, purchase orders for the cycle store, tenancy variation notices served on occupiers: the paper trail is the defence.

There is a further defence for a person served as the person having control of the land who no longer had control when the period expired, provided the necessary notice was given. A freeholder who sold on mid-period needs the transfer documents to hand.

Ignorance of the notice is not a defence where service was valid. Nor is the argument that the condition duplicated something in a lease, or that the previous owner agreed it.

Applying to vary the condition instead

This is the route that actually works, and it should start the day the notice arrives.

An application under section 73 of the 1990 Act seeks permission to develop without complying with a condition, and the authority considers only the question of the condition. If it grants, a new permission is issued with the condition removed or reworded, and the breach falls away from that point. The Levelling-up and Regeneration Act 2023 also inserted a new section 73B route for varying permissions where the effect is not substantially different, and whether that route is in force should be checked against the current guidance before relying on it.

Three practical points.

1. A section 73 application does not suspend the notice. The compliance period keeps running, and the offence keeps being committed. Ask the council in writing whether it will hold off prosecution pending determination, and keep the reply.
2. The case has to be a planning case. Explain why the condition is no longer necessary or can be reworded, with reference to the adopted local plan and the six tests in national guidance on planning conditions.
3. Evidence beats assertion. A Parking Survey carried out to a recognised overnight methodology does more to shift a parking condition than any amount of correspondence about how few tenants own cars.

Judicial review and its limits

Where the notice itself is defective, judicial review in the Planning Court is the only review route. The grounds are the usual public law ones: error of law, procedural unfairness, a notice that fails to specify the conditions or steps with sufficient clarity, or a decision to serve that no reasonable authority could have taken.

Time limits are tight. A claim must be brought promptly and in any event within three months of the decision to serve, and the court expects a pre-action protocol letter first. Costs run into five figures quickly.

Most notices survive. The realistic use of a judicial review threat is to get a badly drafted notice withdrawn, and the council can withdraw a notice at any time under section 187A, though withdrawal leaves it free to serve another.

The first 28 days, in order

1. Diarise the compliance date from the date of service, not the date on the letter.
2. Pull the permission, the approved drawings and the full condition wording. Compare what the notice says against what the condition actually requires, word by word.
3. Identify anything you can comply with immediately. Partial compliance narrows the prosecution and helps the reasonable measures defence.
4. Write to the case officer the same week. Ask what evidence of compliance they will accept and whether they will extend the period, which they can do by withdrawing and reserving a fresh notice.
5. Lodge the section 73 application if the condition is unworkable in practice, with the supporting evidence rather than a promise of it.
6. Take legal advice before the period expires if prosecution looks likely.

A Planning Statement that sets out the planning case for the varied condition, alongside the technical evidence, is the document the case officer will read first. Get it right and the breach becomes a paperwork problem rather than a criminal one.

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. Browse the 66 report types if you need to work out which evidence a section 73 application will need.