Section 102 of the Town and Country Planning Act 1990 (the Act) gives Local Planning Authorities (LPAs) the power to require the discontinuance of any particular use of land or buildings, impose conditions restricting any continuance of the use of land or buildings, and/or require the alteration or removal of buildings or other works. The process under Section 102 is for the LPA to prepare a proposed order setting out its requirements which is then served on the owner or occupier of the property in question, and which requires confirmation by the Secretary of State to take effect. These are known as discontinuance orders.
“In practice, we very rarely see discontinuance orders used, not least because they can be Draconian and are therefore often controversial. For example, we had a case some years ago where the LPA had used that mechanism to prevent a farm and machinery repair and storage business operating in the heart of a residential area which had been subject to extensive litigation. We have recently come across another case where a discontinuance order has been used and has led to significant unintended consequences”, says Mark Sanders of Acorn Rural Property Consultants.
“It concerns a farm where the owner applied for planning permission for a worker’s bungalow in the 1970s. There was already an existing period farmhouse and the LPA wished to grant consent for the additional bungalow but impose a standard agricultural occupancy condition on the existing house and the new bungalow. That is not uncommon and, in the 1970s, could have been done by using planning conditions or by requiring a planning agreement under what was then Section 52 of the Act and is now Section 106 of the Act. However, instead of using those mechanisms, the LPA made a discontinuance order that, in effect, removed the planning consent for the existing house and granted a fresh planning consent for it to be occupied only as an agricultural worker’s dwelling”, explains Sanders.
“The new bungalow was not built, and the existence of the discontinuance order was forgotten until recently when the property was put on the market for sale. It was only when the solicitors acting for the purchaser undertook the local searches that it came to light and, not surprisingly, the purchasers decided not to proceed”, continues Sanders.
“Although the LPA is sympathetic, there was no wording in the discontinuance notice to say that it would not take effect if the bungalow was not built and, as matters currently stand, the farm has no worker’s bungalow, and the original period farmhouse is subject to an agricultural occupancy condition which very significantly reduces its value”, concludes Sanders.
For further information please contact Acorn Rural Property Consultants on 01884 212380