A couple of interesting points have arisen from a recent appeal against the refusal of a certificate of lawfulness for extended operating hours at a concrete works in Essex (DCS Number 400-034-793).
The council had granted planning permission in December 1990 for the redevelopment of a factory for the manufacture of building blocks. The permission was subject to a condition which stated: “Work shall only be carried out on, and deliveries made to and from the site between the hours of 7am and 6pm Mondays to Fridays and between 8am and 1pm on Saturdays. No work shall be carried out on or deliveries made to and from the site on Sundays or Bank Holidays.” An LDC was sought, however, for a certificate of lawful use or development for the use of the site from 5am to 12am Monday to Saturday in breach of the condition.
The inspector explained that the onus was on the appellant to show when the breach of condition had begun and that the breach had continued thereafter, without material interruption, for a period of ten years. He was not persuaded, however, that the appellant’s evidence demonstrated when the use of the site over the extended period in breach of the condition had begun, or that it had operated between the hours of 5:00am and 12:00am Mondays to Saturdays for any 10-year period, without material interruption, before the date of the application. Rather, because of interruptions, he considered that there had been a number of fresh breaches of the planning condition at the site.
The inspector also explained that, in accordance with the Ocado Retail Ltd v. London Borough of Islington and others  judgment, if a condition has been breached continuously for any ten-year period, without significant interruption, that breach will be lawful thereafter, unless that lawful right has been lost through some event sufficient to terminate it. [Interesting point 1:] The breach does not have to be continuing at the date of an LDC application to become lawful. However, [interesting point 2:] the condition is not expunged. It is only that breach that has occurred continuously for any ten-year period that will become lawful.
Not many people know that.
Section 4.3012 of DCP Online covers LDCs for development in breach of conditions.