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Permitted Development

Document Cited authorities 18 Cited in Related
Vincent
AuthorWilliam Webster/Robert Weatherley
Pages397-412
Chapter 41


Permitted Development

INTRODUCTION

41.1 There are special provisions as to land use in 1948, for which planning permission is not required.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 that 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.3Other than in these cases, planning permission is required for any development of land.4

41.2 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 an 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 permission granted under the 2015 Order.

THE TOWN AND COUNTRY PLANNING (GENERAL PERMITTED DEVELOPMENT) (ENGLAND) ORDER 20157

41.3 The 2015 Order is highly technical and detailed, and what follows is merely an overview. 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

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

2TCPA 1990, s 57(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).

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.

398 Restrictions on the Use of Land

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

41.4 Rights under the 2015 Order 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 event the relevant development may not be carried out unless permission is 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 permitted development rights have been withdrawn,10any person prejudicially affected by the withdrawal may seek compensation for abortive expenditure. There is a pre-condition, 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.11Applications for compensation should be made within 12 months from the date of the refusal of permission for development which was once permitted development.12

8Where permitted development rights are withdrawn an application must be made for planning permission for the relevant operation or change of use. The criteria for the making of art 4 directions can be found in the Planning Practice Guidance (PPG; issued on 6 March 2014) in the section ‘When is permission required?’, reference 13-038-20140306, under the heading ‘When is it appropriate to use article 4 directions’ (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.

92015 Order, art 4(2)(a)–(f).

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 mirror those 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 2015 Order 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 3 years following the date when prior approval had been granted, at which point any development must have been completed.

The scope of permitted development – overview

41.5 Article 3 of the 2015 Order gives effect to the permitted development rights contained in Schedule 2.13If a person is dissatisfied with the scope of his permitted development rights, he should obtain an express planning permission.

41.6 Certain elements of article 3 of the 2015 Order should be noted:

(a) Nothing in the 2015 Order permits development contrary to any condition imposed by an express grant of planning permission.14

(b) Rights under the 2015 Order 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),15nor will a permission granted in the case of an existing use validate that use where the use is unlawful.16

(c) The development order does not (with limited exceptions)17authorise 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.18

(d) The 2015 Order does not permit the laying or construction of a notifiable pipe-line (except for works by statutory undertakers under Part 15, Class A) where the appropriate procedure is laid down under the Pipelines Act 1962.19

(e) The 2015 Order does not permit demolition except as provided for in Part 11, Classes B and C.20

(f) Nor is development permitted where the application for development is one which requires an environmental impact assessment (EIA) unless, that is, the LPA has adopted a screening opinion21that the development is not an EIA development22or where the Secretary of State has made a screening direction that the development is not an EIA development,23or where the

13Made pursuant to TCPA 1990, s 58(1)(a), which provides for the grant of planning permission by a development order.

142015 Order, art 3(4). East Barnet Urban District Council v British Transport Commission [1962]

2 QB 484; Newbury District Council v Secretary of State for the Environment [1981] AC 578; Adur District Council v Secretary of State for Environment, Transport and the Regions [2000] 1 PLR 1.

15TCPA 1990, s 191(2), which is 4 years from the time of the substantial completion of the operations (s 171B(1)).

162015 Order, art 3(5). Where a particular use or operation is subject to an enforcement notice, permitted development rights will not operate to override the notice (Masefield v Taylor [1987] JPL 721).

17Classes A, B, D, and E of Part 9 and Class A of Part 18 to Sch 2.

182015 Order, art 3(6).

192015 Order, art 3(8).

202015 Order, art 3(9).

21Under 2011 Regulations, reg 5.

222015 Order, art 3(10)(a).

23Under 2011 Regulations, reg 4(7) or reg 6(4); 2015 Order, art 3(10)(b).

400 Restrictions on the Use of Land

Secretary of State has given a direction that the development is exempted from the application of the regulations.24Development excluded from the 2015 Order under this head is, however, subject to a number of exceptions such as, for instance, arises in the case of development which consists of the carrying out by a drainage body of improvement works.25

(g) The 2015 Order is also subject to various restrictions contained in the Conservation of Habitats and Species Regulations 2010.26

41.7 The 2015 Order provides a different regime in the case of the use of land for mineral exploitation (Part 17, Class K) and the removal of material working-deposits other than a stockpile (Part 23, Class B).27These classes require notification to be made to the mineral planning authority of the intention to carry out the development, and the authority has the power to make a direction excluding permitted development rights (which the Secretary of State has...

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