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“Is it the four or 10-year rule?” A question which, no matter how long you’ve been practicing planning, is likely to bring about a cold sweat and a frantic scramble for the nearest copy of Development Control Practice.

 

It’s a simple question and one that is often asked by clients and colleagues, but has the potential to stump even the most seasoned professional.

 

To provide a very simplistic view, the four or 10-year rule applies to the period of time to provide immunity from enforcement action on breaches of planning control. The Act provides a simple overview of immunity on three grounds: 

 

  1. A building, engineering, mining or other operation, four years from substantial completion; 
  2. The change of use of any building to use as a single dwelling house, four years from the breach; 
  3. In the case of any other breach of planning control, 10 years from the breach.

 

Great, so why is there so much confusion about what applies and when?  Whilst The Act provides the framework for application of these rules the volume of Case Law and appeal decisions on this issue makes us all a little scared of our own shadow when the question is raised.  

 

For example, while a breach of a planning condition on a planning consent generally requires 10-years to become immune from enforcement action, the breach of a condition in relation to use of a building as a single dwelling is tested under the four-year rule. 

 

However, if someone brings a caravan onto a piece of land for residential purposes, then the case would be tested under the 10-year rule as a change of use of land. Perversely, perhaps, should the breach have involved a building operation such that the caravan could not be considered a chattel (i.e. not fixed or regarded to be development) then the residential use would then fall back to the four-year rule. 

 

Further complications are provided through this process by practicalities such as "continuity" of breach and potential "concealment", but these are issues that are too complex to deal with in this piece. 

However, to ensure planning professionals remain on their toes, the Levelling Up and Regeneration (LURB) Bill also proposes changes to The Act and the four-year rule will be removed and that all breaches of planning control will only become immune from enforcement action after 10 years. It remains to be seen if this amendment makes it all the way through to Royal Ascent. 

 

As can be appreciated from the above, the application of the four and/or 10-year rule is a complex issue and one that DHA is well placed to assist with. 

 

For further information please contact Matthew Garvey.

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