Decision details

To issue a Breach of Condition Notice against the Thirsty Bird, 3 East Street, Wimborne, BH21 1DS, for the following Breach of Condition of planning permission ref 3/16/0804/FUL, condition 6 of that permission stated:

“The rear outside area shall not be used by customers and staff for drinking, smoking and socialising. The area shall be used for access to the store, bins and emergency escape only and the rear door shall be fitted with an automatic closing device that shall be maintained in good working order and the said rear door shall be kept closed when the premises are occupied. In addition, no further openings shall be formed in the rear elevation without express planning permission”

Reason: To prevent disturbance to the adjoining occupiers and to accord with retained Policy DES2 of the Local Plan.

The decision to issue the Breach of Condition Notice is taken under delegated powers. Paragraph 145 of the Officer Scheme of Delegation in the Council’s constitution includes the following delegation:

To undertake all action in order to regulate any actual, perceived or potential breach of any

of the Town and Country Planning Legislation including: … (c) to determine whether to issue any notice including: … (iv) any breach of condition notice…

This delegated authority has been passed to the decision maker through the Local Scheme of Nomination for Planning Services – Executive Director of Place.

It appears to the Council that, without planning permission, the land at the rear of the premises is being used by customers of the Thirsty Bird for eating, drinking and entertainment. This new use of the rear garden area does not have planning permission and is in direct conflict with Condition 6 of Planning Decision Notice 3/16/0804/FUL which was imposed to prevent disturbance to adjoining neighbours, nor is it ‘permitted development’ as given by the Town & Country Planning (General Permitted Development) (England) Order 2015 (GDPO) as amended. Therefore, in the absence of any formal planning permission, the use is unauthorised in planning terms. In respect of the unauthorised use the Council is relying on complaints received by neighbours affected and photographic evidence obtained during the planning enforcement investigation.

A planning application (3/21/0745/FUL), seeking permission to for use of the rear patio area as an outdoor seating space and the erection of a pergola, was refused on 2/9/2022. The reason for refusal is copied below.

Due to the close proximity between the rear outside space and the adjacent dwellings at The Studio & Riverside Cottage, 77 High Street together with the positioning of windows serving those properties, the proposal would result in unacceptable levels of disturbance for the occupants of these dwellings, arising from noise and overlooking from persons socialising in this outside space. Consequently, the proposal would be harmful to the amenity of the occupants of these adjacent properties and is contrary to saved Policy DES2 of the East Dorset Local Plan 2002, Policy HE2 of the adopted Local Plan and the policy set out in paragraph 185 of the National Planning Policy Framework (2021).

The unauthorised use is considered harmful to neighbouring occupiers. It is considered to be expedient, and in the public interest, to take enforcement action against the breach of condition 6 of 3/16/0804/FUL.

As there is an immediate need to provide relief to residents the service of a breach of condition notice is considered necessary. This is a shorter overall procedure than the issue of an enforcement notice. The breach of condition procedure is limited to enforcing compliance with the condition, but there may be a wider need to ensure that this space is not unlawfully used for the purposes which have arisen as a consequence of the breach of condition. Therefore, the Council may consider the service of an enforcement notice at a later date.

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