ITEM FOR DECISION
Planning Enforcement Reference: 0146/2011
Location: The Cavendish, Cavendish Road
Breach of Planning Control: Unauthorised change of use of car park for
use as a car wash
The Cavendish Public House is located on the west side of Cavendish Road
opposite the junction with Marwood Road. The property has substantial off-
street car parking to both the front and particularly the south side.
Relevant Planning History
Development Control received a report from the Borough Councils Business
Rates Section in September 2011 relating to the use of the car park as a hand
car wash. Investigations were subsequently carried out and the owners of the
site, and those occupying the land, were informed that the use as a hand car
wash is unauthorised.
Both the owners of the land, and those operating the car wash, have been
informed that the unauthorised use of the land should cease, or a
retrospective application for planning permission should be submitted in an
attempt to retain the current use.
During a recent inspection of the site it was noted that the unauthorised use is
continuing. To date the Council has not received an application for planning
permission for the use of the land.
Breach of Planning Control
Although the Town and Country Planning (General Permitted Development)
Order 1995 (as amended) permits certain changes of use between different
use classes, the Order does not permit a change of use of land from a car
park ancillary to a Public House Class 4 (Drinking Establishments) to a car
wash (which it does not fall within any specific use class) without planning
The approved use of the site is for a car park ancillary to a Public House
Class 4 (Drinking Establishments). As Planning Permission has not been
granted for this change of use, it is therefore unauthorised and constitutes a
breach of planning control.
Although the change of use of the land requires Planning Permission, prior to
taking enforcement action local planning authorities are advised to consider
the guidance contained within paragraph 5 of PPG 18, which advises:
- an enforcement notice should not be normally be issued solely to
“regularise” development which is acceptable on its planning merits,
but for which planning permission has not been sought.
- in considering any enforcement action, the decisive issue for the Local
Planning Authority (LPA) should be whether the breach of control
would unacceptably affect public amenity or the existing use of land;
- enforcement action should always be commensurate with the breach of
planning control to which it relates;
- where the LPA's initial attempt to persuade the owner or occupier of
the site voluntarily to remedy the harmful effects of unauthorised
development fails, negotiations should not be allowed to hamper or
delay whatever formal enforcement action may be required to make the
development acceptable on planning grounds, or to compel it to stop
PPG18 advises that under section 173 of the Town and Country Planning Act
1990, the local planning authority may, in the serving of an Enforcement
Notice, require steps to be taken for the purpose of removing or alleviating
any injury to amenity which has been caused by the development.
As neither the land owner, or the occupier of the land, has submitted an
application for planning permission the Council has been unable to establish
how trade effluent (car washings) is to be dealt with, the development may
give rise to pollution, either directly or indirectly, and the car wash may
therefore pose an unacceptable risk of causing a detrimental impact. Having
regard to this, and the guidance above, it is the officer’s opinion that
authorisation should be given to take any appropriate enforcement action to
regularise the position.
I have spoken to the Environment Agency regarding the issue of pollution
from this type of business and have been informed that the course of action
open to them is prosecution in the magistrates’ court. However, any
proceedings by the Environment Agency would be reactionary to unregulated
discharge into the watercourse and therefore would not be effective in
preventing initial contamination.
That the Head of Planning and Environment in consultation with the
Council Solicitor and Monitoring Officer be authorised to take any
appropriate enforcement action including the service of relevant notices.
That the Council Solicitor and Monitoring Officer be authorised to take
any further legal action following the service of any relevant notices, if
such legal action is appropriate.