Discontinuance orders

Discontinuance orders

In January 2022 we reported on a sorry tale where a Discontinuance Order made in the 1970s had remained undetected for decades only to have re-emerged when the current owner wished to retire and sell the farm. The effect of the Discontinuance Notice and subsequent confirmed Discontinuance Order was to remove the unrestricted residential use of the original farmhouse and impose a restricted agricultural occupancy. That was in the context of the grant of planning consent for an additional farm worker dwelling which was never built.

Unlike Section 106 agreements, which only take effect if the planning consent to which they relate is implemented, a Discontinuance Notice applies in any event and takes effect from the date specified when the Order is confirmed by the Secretary of State. Also unlike Section 106 agreements, there is no mechanism for amending or removing a Discontinuance Order after it has taken effect.

In February this year, we were instructed in relation to another property where a Discontinuance Order had been used to remove the residential use from the original farm house in the context of the grant of planning consent for a replacement dwelling, also dating from the 1970s and also dormant until the owner wished to sell the farm. Again, the replacement dwelling had not been built. Instead, the original farm house had been improved and extended into adjoining buildings and subsequently listed as a Grade II designated heritage asset.

The use of a property contrary to the terms of a confirmed Discontinuance Order is not only unlawful but also potentially a criminal offence. It is therefore not surprising that the sale of the farm could not proceed until the position had been resolved. We are delighted to report that we have, today, received confirmation that the residential use of the dwelling has been re-instated. The sale will therefore now be able to continue.

Discontinuance Orders are a rare occurrence in a rural context. They are more commonly used to prevent a use that is considered to be harmful or otherwise objectional in a particular location. Unlike the owners in the above cases, we can therefore consider ourselves fortunate to have come across two in close succession.

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