A breach of planning control
20 December 2016 by Sharon Smith
An Essex based business appears to have fallen foul of the planning legislation, by breaching planning control, through what appears to be a change of use from agriculture/horticulture use to the retail sales of non- horticultural products operating primarily as a retail outlet, a shop.
A horticultural use comprises, more generally, a commercial use for the intensive growing of mixed crops, including plant propagation, cultivation and wholesale sales. By contrast a retail sales use relates to the direct sale of goods and or services to the general public.
Generally planning policies are restrictive of retail sales in the countryside, focussing retailing to the main shopping areas (town centres) to ensure the vitality of town centres.
Planning policies are supportive of the rural economy, including farm diversification where it can be demonstrated that proposals, inter alia, respect the character of the countryside. Limited retail sales of a small number of products for example goods produced at the site can be acceptable dependant on the nature and extent of those sales.
Proposed uses that result in, amongst other factors, a detrimental impact on existing shopping centres, the character of the countryside, the highway network and or result in a negative impact on the amenity of residential neighbours will often be resisted unless the application is submitted with mitigation measures and justification addressing the impact of the proposed retail unit on existing shopping centres, the countryside, the highway network and neighbours residential amenity. There will likely be other material planning considerations assessed with each individual case.
The scale and nature of retail sales and any other uses occurring, such as any ongoing horticultural use, will form part of the consideration by the Council when determining a planning application.
Where a breach of planning control occurs the Council will assess whether it is expedient to take enforcement action. The Council will, usually first contact the site operator, where a breach of planning control is believed to be occurring, to make an informed view and where opportunity is often given to voluntarily cease the breach within a mutually and acceptable (to the Council) agreed timescale, or to apply for planning permission where the planning disbenefits and or merits of a proposal can be fully and properly assessed and considered.
The National Planning Policy Framework (NPPF) states “… effective enforcement is important as a means of maintaining public confidence in the planning system.” The NPPF further discusses discretion and proportionality when local authorities are dealing with suspected breaches of planning control.
The Council can serve an enforcement notice, notwithstanding the submission of a planning application. The Council may informally offer an opinion in respect of the considered likely success of an application, but ultimately it is for the site operator to consider. The Council cannot decline to consider an application unless an identical application/appeal has been refused/dismissed.
The recipient of an enforcement notice does have a right of appeal to the Planning Inspectorate, or the breach can cease voluntarily.
The Planning Inspectorate is an executive agency sponsored by the Department for Communities and Local Government.
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