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Permitted Development

Document Cited authorities 28 Cited in Related
Vincent
AuthorWilliam Webster
Pages101-122

Chapter 5


Permitted Development

INTRODUCTION

5.1 There are special provisions involving land on 1/7/1948 which had both a normal use and a temporary use for which planning permission is not required, even if development is involved.1Nor is permission necessary where:

(a) planning permission has been granted for a limited period, or by a development order subject to limitations, and there is a resumption of the normal use of the land before that permission was granted (provided the previous use was not begun in contravention of planning control);2or

(b) there is a resumption of the previous lawful use of the land where an enforcement notice has been served in respect of an unauthorised use.3

5.2 Other than in these cases, planning permission is required for any development of land.4

5.3 Planning permission may be granted in a number of ways such as where planning permission is deemed to have been granted by virtue of a development order made by the Secretary of State or by virtue of a local development order made by a local planning authority (LPA).5A development order may be made either as a general order affecting all land (except so far as the order otherwise provides) or as a special order applicable only to such land or descriptions of land as may be specified in the order.6This chapter is concerned primarily with

1TCPA 1990, Sch 4, paras 1–3, and s 57(7).

2TCPA 1990, s 7(2), (3) and (5).

3TCPA 1990, s 57(4).

4TCPA 1990, s 57(1).

5TCPA 1990, ss 58(1)(a) and 59.

6TCPA 1990, s 59(3).

102 Planning Law: A Practitioner’s Handbook

permission granted under the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO).7

THE GPDO

5.4 The GPDO is highly technical and detailed. The various permissions granted are subject to limitations, conditions and exceptions which, in the case of limitations and conditions, are separately defined for each class of permitted development and, of course, any significant departure from the scope of the permitted development may well justify an enforcement notice in order to remedy what would be a breach of planning control.

Article 4 directions

5.5 Rights under the GPDO may also be withdrawn by virtue of a direction made by the Secretary of State or by an LPA. These are known as ‘article 4 directions’ which operate to restrict permitted development granted by article 3 (other than in the case of the use of land for mineral exploration or the removal of material from mineral-working deposits), in which case the relevant development may not be carried out unless permission has been granted for it on an application.8The article 4 direction may apply to all or any development of the relevant part, class or paragraph which is specified in the direction or to any particular part, class or paragraph which is specified in the direction. There are various developments which are excluded from the scope of article 4.9Where

7SI 2015/596, and made pursuant to the powers of the Secretary of State under TCPA 1990, ss 58–
71. This order consolidates the Town and Country Planning (General Permitted Development) Order 1995 (SI 1995/418) and the 22 instruments which have amended that Order and also includes a number of new policy changes in England.

8Where permitted development rights are withdrawn, an application must be made for planning permission for the relevant operation or change of use. The guidance for when it is appropriate to make art 4 directions can be found in the NPPG at Paragraph: 038 Reference ID: 13-038-20140306 (Circular 9/95 (App D) is retained in Wales) and in NPPF, para 200. The removal of permitted development rights is an exceptional step and should only be done where this is necessary to protect local amenity or the wellbeing of an area. It might arise in the case of development within conservation areas or where an LPA wishes to strictly control the change of use of dwellings to houses in multiple occupation (HMOs), such as where the character of an area was changing through a proliferation of HMOs driven by the need for student accommodation. It might also arise where the change of use of an HMO from a single dwelling was impermissible because it was in an area covered by an art 4 direction specifically controlling HMOs (although a lack of identifiable harm might well be a material consideration outweighing the conflict with adopted local plan policy).

9GPDO, art 4(2)(a)–(f).

Permitted Development 103

permitted development rights have been withdrawn,10any person prejudicially affected by the withdrawal may seek compensation for abortive expenditure. There is a pre-condition, namely that an application for planning permission should first have been made and refused or otherwise granted subject to conditions which differ from those arising under the development order.11

Applications for compensation should be made within 12 months from the date of the refusal of permission for development which was once permitted development.12

Permitted development – planning conditions

5.6 A planning condition could exclude planning permission granted by the Secretary of State by means of the GPDO. For instance, a condition which stated that the property could be used for ‘no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained’ was sufficient to exclude the operation of the GPDO.13

10By revocation or amendment of the development order itself or by virtue of the issue of directions under powers conferred by the order withdrawing permission under the order.

11TCPA 1990, s 108(1); s 108(2) requires that the application for planning permission is made within 12 months of the date when the withdrawal of permission came into operation.

12Town and Country Planning General Regulations 1992 (SI 1992/1492), reg 12. See Pennine Raceway Ltd v Kirklees Metropolitan Borough Council [1984] RVR 85 and Carter v Windsor and Maidenhead Royal Borough Council [1988] 3 PLR 6, for the assessment of compensation which mirrors that arising under TCPA 1990, s 107, which concerns compensation where planning permission is revoked or modified. It should be noted that the Town and Country Planning (Compensation) (England) Regulations 2015 (SI 2015/598) make provision to ensure that no compensation arises where adequate notice has been given of the removal of planning permission granted under a development order, local development order or neighbourhood development order. The GPDO also amends procedures in relation to art 4. It is now the case that an art 4 direction cannot prevent the carrying out of development which had prior approval before the date when the art 4 direction came into force. This protection will, however, only exist for three years following the date when prior approval had been granted, at which point any development must have been completed.

13Dunnett Investments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 192 (following Trump International Golf Club Scotland Ltd v Scottish Ministers [2016] 1 WLR 85). In interpreting a planning condition which was said to exclude the operation of the GPDO, the following themes could be discerned from the authorities: (a) a planning condition could exclude the GPDO; (b) exclusion might be express or implied, however, a grant for a particular use could not in itself amount to an exclusion; (c) to exclude the application of the GPDO, the words used in the relevant condition, taken in their full context, must clearly evince an intention on the part of the LPA to make such an exclusion; and (d) it is also material to consider the context which includes the planning history of the site which might well indicate that the LPA was anxious to maintain close control over its planning use and wanted to consider the merits of any proposal in light of the site’s character and location.

104 Planning Law: A Practitioner’s Handbook

Scope of permitted development – overview

5.7 Article 3 of the GPDO gives effect to the permitted development rights contained in Schedule 2.14If a person is dissatisfied with the scope of his permitted development rights, he should obtain an express planning permission.

5.8 Certain elements of article 3 of the GPDO should be noted:

(a) Nothing in the GPDO permits development contrary to any condition imposed by an express grant of planning permission.15

(b) Rights under the GPDO will not validate unlawful building operations in the case of an existing building (although operations which were undertaken unlawfully will become lawful once the time has elapsed for taking enforcement action against them),16nor will a permission granted in the case of an existing use validate that use where the use is unlawful.17

(c) The GPDO does not (with limited exceptions)18authorise any development which involves the formation, laying out or material widening of a means of access to an existing highway which is a trunk road or classified road, or which creates an obstruction to the view of persons using any highway used by vehicular traffic, so as to be likely to cause danger to such persons.19

(d) The GPDO does not permit the laying or construction of a notifiable pipeline (except for works by statutory undertakers under Part 15, Class A) where the appropriate procedure is laid down under the Pipe-Lines Act 1962.20

(e) The GPDO does not permit demolition except as provided for in Part 11, Classes B and C.21

(f) Nor is development permitted where the application for development is one which requires an environmental impact assessment (EIA) unless the LPA has adopted a screening opinion22that the development is not an EIA

14Made pursuant to TCPA 1990, s 58(1)(a), which provides for the grant of...

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