#3240 - Planning Permission Issues

Commercial Property

Planning Permission

UK Planning system

Town and Country Planning Act 1990 [TCPA]: sets out the main framework of the UK planning system.
Department of Communities and Local Government [DCLG]: central government department which has responsibility for town and country planning. It has 3 functions [Legislative; administrative; Quasi-jurisdictional].
Local Planning Department [LPA]: the decision makers around planning.

Planning Inspectorate to step in when LPA cannot deal with the issue effectively

When is planning permission required

S.57 TCPA 1990 = PP is needed whenever “any development of land” is being carried out.
S.55(1) = definition of development

“The carrying out of building, engineering, mining, or other operations* in, on, over or under land, or the making of any material change in the use of any buildings or other land”*

Operations

Operational Development

S.55(1A) TCPA:
Building operations = rebuilding; structural alterations; additions to buildings
Also: engineering and mining operations
S.55(2)(a): Changes to the interior which do not materially affect external appearance and does not provide additional underground space will not be considered a development [but tell client they should consider “Building Regulations.”]

Demolition

S.55(1A) = demolition is an operational development.
SAVE Britain’s Herritage v SSCLG: quashed Paragraph 2(1)(a)-(d) Demolition Direction 1995. Demolition to listed buildings / buildings in a conservation area / monuments are now classed as a “development” – so no longer exempt from the requirement to obtain planning permission. Therefore these buildings can be treated the same as residential buildings generally.

[Before this they could not apply for planning permission and SOS had to approve instead].

GPDO Part 31: No pp for demolition development BUT Developer will need to apply to the LPA to secure prior approval for the proposed method of demolition.
Is any other consent needed – e.g. heritage properties require further consent
Commission v Ireland: demolition works come within the scope of EIA Directive. Therefore it may be necessary to issue a screening opinion on the whether an environmental impact assessment is needed. [Will it have significant impact on environment?]

Material change of use

What is Material?

Not defined in Act
Question of fact / degree
Case-law = courts will not normally interfere on the issue of materiality unless the decision is totally unreasonable on the facts.
SOS / one of his inspectors will generally decide this issue of materiality.

Statutory clarification

S.55(3): 2 or more separate dwelling houses previously used as a single dwelling house.
S.55(5): the deposit / refusal of waste material
Town and Country Planning [Use Classes] Order 1987 = lists classes of use. [See p.32/33]. A change of use between classes will be material.
Exclusions S.55(2)(f): use remains within the same class under the UCO 1987.

General Permitted Development Order 1995 (GPDO) = Narrows down the developments that require planning permission. [If the development falls within the order then the development does not need PP]

Demolition: Part 31 GDPO – permits demolition of a building [except where there are health and safety issued]
Small Scale developments
Changes of use
Minor operations: erecting enclosure [e.g. a fence]; painting of exterior.
Development within the curtilage of a dwelling house [e.g. building a porch; mending a roof]

GDPO checklist:

Limitations imposed by GPDO have been complied with
Conditions of existing PP – does it exclude the GPDO
Is land subject to a special development order [SDO] – it might restrict the GPDO

Use Classes Order 1987: Planning permission can be required for a significant change of use

Order generally allows change of use WITHIN classes
Need Permission if you change BETWEEN classes
Do the exemptions apply?
Some changes come within “permitted development”
- Resumption of previous use [S.56 TCPA]
- GPDO
Alternative to getting planning permission for change of use:

Ss.191-192 TCPA 1990: A person can apply for ‘Certificate of Lawful Use and Development”. [For the PROPOSED USE of the site]. The grant of a certificate means there is a presumption of lawfulness as regards to the USE of the land.
Certificate of Existing use: If previous works [carried out by the seller] have been done without planning permission.

Advice to client – Preliminary steps for planning permission

Is Planning permission needed at all? [see above]
Drafting the planning application:

What does Development plan say?
Consider any “material considerations” [S.38(6) PCPA] – see above
Pre-application discussion with LPA

Investigate title – are there any covenants/ easements which may effect the application.
Inform relevant people [occupiers, owners of the land] at least 21 days before application. The planning application must be accompanied with a certificate [under Art.12 DMPO 2010] to show relevant people have been notified.
Visit the site

Advice to client – making the application:

Development Management Procedure Order 2010 [DMPO]
Submit application [with FEE ] to LPA [include necessary certificates to show relevant people have been notified]
Opt for Full or Outline application:
S.70 TCPA: LPA will grant pp either unconditionally or conditionally or it can refuse pp altogether.

DMPO Art.4: application to erect a building - application can be for ‘outline permission’.

Contains a description of proposed development with plan – to indicate major features
Permission is granted – it will be subject to approval of reserved conditions but LPA has allowed the development in principle.
LPA cannot revoke permission except on payment of compensation
LPA cannot impose additional conditions subsequently except as regards for ‘reserved matters’.
Application for approval of these reserved matters must be made within 3 years of the grant of the original outline.
Works must start within 2 years of approval of reserved matters.

Contains more detail. Less conditions are imposed.
Works must start within 3 years of the approval.

The Development Plan

Forms the basis of planning decisions
Objective: aims to ensure that the land is used in a planned and appropriate fashion by setting out policies to govern development control in a given area.
Decisions are PLAN-LED = dictated by policy
S.70 TCPA: planning applications are to “have regard to the development plan”
S.38(6) Planning and Compulsory Purchase Act 2004 = “if regard is to be had to the development plan… the determination [of Planning permission] must be made in accordance with the plan, unless material considerations indicate otherwise”.
Material considerations = Not defined in statute.

1	Material considerations must “relate to the use and development of the land” [Stringer v Minister of Housing]
2	...

#3240 - Planning Permission Issues - Commercial Property

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