To recap, the Development and Planning Authority ("DPA") cannot issue a compliance notice for a breach of the planning laws after (1) four years of the date of the alleged breach or 10 years in respect of a material change of use, or (2) in either case, four years from the date that the DPA became aware of the breach, whichever is the sooner.
In cases where the DPA cannot issue a compliance notice because the time limit has expired, any unauthorised development may remain or the change of use may continue but for planning purposes, they are still categorised as unlawful. Whilst helpful for the existing owner, the unlawful development or an unlawful change of use may cause problems when the property is sold and if future development is proposed.
For example, if a building classified for industrial use was instead used for retail, without the required planning permission authorising the change of use, but the retail operation has continued for more than 10 years, the DPA would not now be able to issue a compliance notice. Consequently, the retail use will be allowed to continue but in planning terms, will remain unlawful. If a future application was submitted in respect of the building, it would be assessed against the policies relevant to the industrial use, not the unlawful retail use.
Currently, the only way to regularise the unauthorised development or change of use is to obtain retrospective planning permission.
This situation is set to change in respect of an unauthorised change of use. Last June the States resolved to introduce a "certificate of lawful use" regime, which will allow applications to be made to regularise unlawful changes of use that have been ongoing for more than 10 years. This will be provided for by a new Ordinance which is in the process of being prepared. If a "certificate of lawful use" is granted, it will go further than the example above by certifying that the existing use of land is lawful for planning purposes (effectively changing the use classification of the land).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.