Planning Permission

REQUIREMENTS FOR PLANNING PERMISSION                               

Planning Law is a framework through which PLANNING CONTROL over land use can be exercised.

It balances the interests of private property ownership with “the public good”. In essence Planning Control deals with the Development of Land.

Section 55 of the Town & Country Planning Act 1990 defines two specific categories of Development

  • “The carrying out of building, engineering, mining or other operations in, on, over, or under land” This is termed  “Operational Development”
  •  “The making of any MATERIAL change of use of any buildings or other land”

This is termed “Use Change Development”

 NOTE; Converting a house (a single unit) into flats (more than one unit in a building) will always amount to a change of use which requires Planning Approval

A) The Act defines that certain works are not “Development” and therefore not needing planning, and these include                     

  • Building work involving the maintenance improvement or other alteration which affects the INTERIOR OF THE BUILDING only or WHICH DO NOT MATERIALLY AFFECT THE EXTERNAL APPEARANCE of the building (Provided the building is not LISTED).
  • Use of any existing building or other land within the curtilage of the dwelling house (land serving the building) for any purpose which is incidental to the use and enjoyment of the dwelling house- provided it is not a listed building

The key words are “INCIDENTAL TO THE USE AND ENJOYMENT OF THE PROPERTY”

The Courts look at each case on its individual facts and decide subjectively and objectively whether an actual use of part of the house and its grounds is consistent with the primary purpose namely as a dwelling house. Incidental has been defined to mean “subordinate to the enjoyment of a house for residential purposes”. The Courts have looked at the size and location of the house and grounds and the nature of the operation being carried out. Examples of uses which have not been held as “incidental” and constituted “development” for which planning approval would be needed have been

  • A home owner keeping of 44 dogs in the house as a hobby and not as a commercial venture
  • a home owner kept a life size model of a spitfire in the garden
  • the building of an aircraft hanger for a light aircraft in the garden

NOTE; Conversion of a garage into a study will not itself amount to use change development, but if it is used for professional purpose such as an advertised office, then planning may be needed. The “de minimis” rule applies and uses incidental to the use of a building as a dwelling are disregarded. An example would be- Use of an existing garden shed for sleeping accommodation would not need a change of use approval for this use is consistent with the dwelling.

Planning legislation first came into effect in 1948 and there have been a number of amending and consolidating Acts of Parliament since. The current legislation comprise The Town & Country Planning Act 1990 and the Planning & Compensation Act 1991

NOTE ; All houses built since 1947 should have a planning permission for their initial construction  and  for any extensions added since then.

PLANNING PERMISSION ON BUILDING WORK (original construction /later extensions)

If a property was built prior to 1948 there will be no planning permission relating to its first construction. Likewise there will be no planning permission for any extension built prior to 1948

Where a property was built after 1947 or an extension to an existing house has been added after that year, you will need to see a planning permission. This is to check firstly that the original development was authorised and secondly check what (if any) planning conditions were imposed and that such conditions were complied with.

Planning conditions are, potentially, indefinitely binding on the property and whoever owns the property. They are capable of enforcement by the local authority on a property up to 10 years after the condition has been breached. It is fundamental that you read closely the conditions contained in any planning permission which we send you, as they may well have an effect on your use and enjoyment of the property.

Examples include

  • Removing the General Development Order, rights for small scale development
  • Remove or limit the erecting of enclosures around boundaries

GENERAL DEVELOPMENT ORDERS

The current Town and Country Planning (General Permitted Development) Order 1995 as amended, (the latest amendment came in 2010) contains  “classes” where planning approval will be “deemed” to be granted for development.  The Order does NOT apply to FLATS

Whether or not an extension or any other development on a property is covered by a General Development Order must be checked against the regulations published by The Secretary of State. We have below re-printed the latest Rules so far as they affect Dwelling Houses in England ( note Wales has slightly different Rules. However let us give you the following Health Warning.

CHECK your proposed development of your property with the Council Planning Department

CLASS A

Development of Your Dwelling-house  by Enlargement, Improvement or Alteration

(not include porches)

Such Development will not be treated as Permitted  under Class A if any of the following applies

  • As a result of the works the total area covered by buildings within the curtilage of the dwelling-house (other than the dwelling house itself) would exceed 50% of the total area of the curtilage (excluding the ground area taken up by the ‘original dwelling-house’)
  • The height of the part of the dwelling-house enlarged, improved or altered would exceed the height of the highest part of the roof of the existing dwelling-house
  • The height of the eaves on the part of the dwelling-house enlarged improved or altered would exceed the height of the highest part of the eaves to the existing dwelling-house
  • The enlarged part (the extension) ( this does not apply to Porches which come within Class D of the GDO) would extend beyond an existing wall which fronts a highway and such existing wall formed the principal or side elevation of the original dwelling-house
  • The enlarged part of the dwelling-house (the extension) would have a single storey and either

i)                    The single storey extension would extend beyond the rear wall of “the original dwelling-house” by more than 4 meters in the case of a detached house or 3 meters in the case of any other dwelling-house or

ii)                  The single storey extension would exceed 4 meters in height

  • The enlarged part of the dwelling-house  (the extension) would have more than one storey and either

i)                    Any part of the extension would extend beyond the rear wall of “the original dwelling-house” by more than 3 meters or

ii)                  Any part of the extension would be within 7 meters of any boundary of the dwelling-house which is immediately opposite the rear wall of the dwelling-house

  • The enlarged part of the dwelling-house (the extension) would be within two meters of the boundary of the curtilage to the dwelling-house ( in other words any part of the extension would be within 2 meters of the boundary of the Property)  and the height of the eaves of the enlarged part would exceed 3 meters
  • The enlarged part of the dwelling-house (the extension) would extend beyond a wall forming a side elevation of “the original dwelling-house” and

i)                    The enlarged part (the extension) would exceed 4 meters in height and have more than one storey or

ii)                  The enlarged part (the extension) would have a width which is greater than one half of the width of the original dwelling-house or

iii)                The enlarged part (the extension) would consist of or include any of the following

a)      The construction or provision of a veranda, balcony or raised platform

b)      The installation, alteration or replacement of a microwave antennae

c)      The installation alteration or replacement of a chimney, flue pipe, soil pipe or   

      vent pipe

d)     The alteration of any part of the roof to the original dwelling-house

The term “Original Dwelling-house” means the house as built or if built before 1st July 1948, the house that was standing on that date.

NOTE; Where a property is located in any of the following designated areas, ( called “Article 1(5) Land)

  1. a National Park or
  2. an Area of Outstanding Natural Beauty or
  3. a Conservation Area,
  4. A World Heritage Site or
  5. An area of Special Scientific Interest
  6. The Norfolk Broads

There are automatic further restrictions on the Permitted Development Rights under Class A with the implication that Planning Permission would be needed for each of the following namely

  • The cladding of any part of the exterior of the dwelling-house with stone, artificial stone, pebble dash render, timber plastic or tiles or
  • The enlarged part of the dwelling-house (the extension) would extend beyond a wall forming a side elevation of “the original dwelling-house” or
  • The enlarged part of the dwelling-house (the extension) would have more than one storey and extend beyond the rear wall of “the original dwelling-house”

CLASS B

Development of Your Property by making an addition or alteration to the Roof

Examples would include Building a Roof Extension, Loft Conversion or Dormer Windows

Such Development will not be treated as Permitted  under Class B if any of the following applies

  • Any part of the dwelling-house would as a result of such works exceed the height of the highest part of the existing roof to the dwelling-house
  • Any part of the dwelling-house would as a result of such works extend beyond the plane of any existing roof slope which formed part of the principal elevation of the house as fronts a highway
  • The cubic content of the “Resulting Roof Space” would exceed the cubic content of the original roof space by more than

40 cubic meters in the case of Terrace House or 50 cubic meters for a semi detached or detached Property

“Resultant Roof Space” means the roof space as enlarged by the proposed works and any earlier additions

  • The enlarged part (the Roof ) would consist of or include any of the following

            The construction or provision of a veranda, balcony or raised platform

            The installation alteration or replacement of a chimney, flue pipe, soil pipe or vent pipe

  • The dwelling-house is within Article 1(5) Land

Where Roof alterations and additions does come within this Class of Permitted Development,

a)      the materials used should be in keeping with the materials for the existing Property

b)      the enlargement closest to the eaves should not be less than 20cm from the eaves to the original roof

c)      any window installed on a wall or roof slope forming the side elevation of the dwelling-house shall be of obscured glass and non opening unless the part of the window which can be opened is more than 1.7 meters above the floor of the room in which the window is located

Planning permission is not usually needed for re-roofing, or inserting a skylight or roof light, where the property is not within a Conservation Area, Area of Outstanding Natural Beauty or National Park (termed Special Planning Areas). If a Property is in any of those areas, any alterations or additions to the roof which materially alter it’s appearance would normally require planning approval

CLASS C

An other alterations to the Roof

Such Development will not be treated as Permitted  under Class C if any of the following applies

  • the alteration would protrude more than 150 mm beyond the place of the slope of the original roof when “measured from the perpendicular with the external surface of the original roof
  • Any part of the dwelling-house would as a result of the alteration exceed the height of the highest part of the existing roof to the dwelling-house
  • The works amount to an  installation alteration or replacement of a chimney, flue pipe, soil pipe or vent pipe
  • The works amount to the installation alteration or replacement of solar photovoltaics or solar thermal equipment

CLASS D

The erection or construction of Porch outside any external door to the dwelling-house

This is one of the most common forms of development.

Planning permission is needed if the proposed porch

  • Would have an external ground space of more than 3 square meters and  height from the highest part of the ground surface of more than 3 meters or
  • Any part of the porch would be less than 2 meters away from the property’s boundary with the highway.

CLASS E

Development of a Building or Enclosure or Swimming or other Pool REQUIRED FOR A PURPOSE INCIDENTAL TO THE ENJOYMENT OF THE DWELLING HOUSE or the maintenance improvement or other alteration to an existing Building, Enclosure, Swimming or other Pool

Or

A Container USED FOR DOMESTIC HEATING PURPOSES FOR THE STORAGE OF OIL OR LIQUID PETROLUEM GAS

Planning permission is needed for any of these works of development where one of the following applies

  • As a result of the works the total area covered by buildings, enclosures and containers  within the curtilage of the dwelling-house (other than the dwelling house itself) would exceed 50% of the total area of the curtilage (excluding the ground area taken up by the ‘original dwelling-house’) (this replicates the first exception of Class A)
  • Any part of the Building Enclosure, Pool or Container would extend beyond an existing wall which forms the principal elevation of the original dwelling-house
  • The building would have more than one storey
  • The height of the building, enclosure or container would exceed

i)                    4 meters where the building has a dual pitched roof

ii)                  2.5 meters in the case of a building, enclosure or container within 2 meters of the boundary to the Property

iii)                3 meters in all other instances

  • The building, enclosure or container would be situate on land where the dwelling-house is a listed building
  • The works would include the construction or provision of a veranda, balcony or raised platform
  • The works would include the installation of a microwave antennae
  • The capacity of the container would exceed 3,500 litres
  • It can be shown that the Building, Enclosure, Swimming or other Pool goes beyond what would be reasonable for the incidental enjoyment of the Property- so for example bee keeping in a building where the honey is for personal use may be held to be “incidental” whereas use as part of a commercial enterprise would not be

NOTE- where a Dwelling-house comes within Article 1(5) land as described on page 3 of this Guidance Note, the installation of these type of works will not be permitted

1)      where the buildings, containers, enclosures and pools situate more than 20 meters from any wall of the dwelling-house would exceed 10 square meters or

2)      would be situate on land between the side elevation of the dwelling-house and the boundary

CLASS F

Development within the curtilage (boundaries) of the Dwelling-house by installing Hard-standing for a purpose incidental to the enjoyment of the Dwelling-house or the replacement in whole or part of an existing Hard-Standing

Planning permission is not needed where

  • it is to be used for domestic purposes- use is in relation to a business or the parking of a commercial vehicle would not come within Permitted Development
  • the hard standing would be situate on land between the a wall forming the principal elevation of the dwelling-house and a highway and the hard standing does not exceed 5 square meters
  • the hard standing would be situate on land between the a wall forming the principal elevation of the dwelling-house and a highway and the hard standing does exceed 5 square meters provided the hard standing

i)                    is made of porous material or

ii)                  provision has been made for a soakaway within the cartilage of the Property to take away surface water

The purpose of this Class is to ensure that hard standing does not result in extra surface water from the Property putting an increased burden on the surface water drainage in the Highway

CLASS G

The Installation or Alteration or Replacement of a Chimney, or a Flue or a Soil Pipe or Vent Pipe on a Dwelling-house

Planning Permission is needed where any of the following applies

  • the height of the chimney, or flue, or soil pipe or vent pipe would exceed the highest part of the roof by 1 meter or more
  • Where a Dwelling-house is located on Article 1(5) land as defined on page 3 of these Guidance Notes, the chimney, or flue or soil pipe or vent pipe would be installed on a wall or roof slope which

i)                    Fronts a highway and

ii)                  Forms either the principal or side elevation of the dwelling-house

CLASS H

The Installation, or Alteration or Replacement of a Microwave Antenna (a satellite mechanism for receiving TV or Radio) on a Dwelling-house or within the cartilage (boundary) of the Dwelling-house

Planning Permission is needed where as a result of the proposed Development there would be on the dwelling-house or within its curtilage any of the following

  • More than two antennas
  • A single antenna which exceeds 100 cm in length
  • Two antennas which do no meet the size criteria namely where both exceed 60cm in length or a single antenna exceeds 100cm in lenght
  • An antenna installed on a chimney where its length would exceed 60cm
  • An antenna  installed on a chimney which would protrude above the chimney
  • An antenna with a cubic capacity in excess of 35 litres
  • An antenna installed on a roof to a Dwelling-house without a chimney where the highest part of the antenna would be higher than the highest part of the roof
  • An antenna installed on a roof to a Dwelling-house with a chimney, where the highest part of the antenna would behigher than the highest part of the chimney or 60 cm measured from the highest part of the ridge tiles of the roof whichever is the lower
  • Where the Dwelling-house is located in Article 1(5) Land as defined on page 3 of this Guidance Note and the installation of an antenna is on any of the following

i)                    A chimney, wall or roof slope which faces on to and is visible from the a highway

ii)                  Where the dwelling-house is located on the Norfolk Broads AND the antenna is on a chimney, roof slope or wall which faces on to a watercourse

iii)                On a dwelling-house which exceeds 15 meters in height

Other Specific Areas of Development

Decking Within The Grounds of a Dwelling-house

Newly introduced from 1st October 2008, installation of decking or a raised platform would not need planning permission provided both of the following conditions are met

  • The decking or platform at any point is no more than 30cm above the ground and
  • The decking or platform on its own or when added to any other building(s) added does not take up more than 50% of the available area of the extent of the ground area of the dwelling-house excluding the area taken up by the original dwelling itself or the dwelling which existed as at 1st July 1948

Development of Your Property by creating a new or alternative vehicular access

Formal planning permission is not needed unless the road on to which access is required is either a “classified road” or a “trunk road. A Vehicular Crossing Agreement would be needed for any access to any other type of road, and this is applied for from the Council Highways Department and works must be carried out by a Council nominated contractor

Development of Your Property by erecting fences, walls and gates

This is regulated under Part 2 of the Order. This permits the following development within the grounds of a house

  • The erection, construction, maintenance, improvement or alteration of a gate, fence, wall or other means of enclosure unless  the fence, wall or gate abuts a highway and exceeds 1 meter in height or for any other boundary which exceeds 2 meters in height
  • The painting of the exterior of the house unless the property is listed as a building of special architectural or historic interest

Planning permission is needed in any of the following

  • The property is listed as a building of special architectural or historic interest
  • The fence, wall or gate abuts a highway and exceeds 1 meter in height or for any boundary which exceeds 2 meters in height
  • Where an earlier planning permission which regulates this property contains a condition requiring a particular boundary to remain “open planned”. This condition is fairly common on Modern Estate Properties where a Local Authority wishes to ensure for reasons of road visibility that a boundary fronting a road is not built upon or not planted with trees and or hedges.

These above rules under the General Planning Development Order can be lost if

ü  Our Local Authority Search shows an Article 4 Direction has been made by either the Secretary of State or Local Authority removing or reducing the affect of the Order

ü  An existing planning approval provides a provision that the Order be excluded or restricted

ü  A Special Development Order for an area is made

SPECIAL RULES ON FLATS

Planning permission is needed to build an extension, an outbuilding such as a garage, shed or greenhouse or any other building work which may materially effect the appearance of the building or its grounds.

This would include the installing of hand standing. Unless the flat is in a conservation area, planning permission is not needed to paint the flat.

All these works are likely to also need Landlord approval under the terms of the Lease

BREACH OF PLANNING REGULATION

Breaches can fall into three types. The first is an unauthorised development (e.g. an unauthorised extension), the second is an unauthorised use. The third is a breach of planning condition

  • Where there has been development in the form of building works,  proceedings for enforcement of planning restrictions must normally be taken within four years of the date of the breach  This is defined as the date when the works were substantially completed e.g. an extension on a house
  • Where there has been development amounting to a material change of use,  proceedings for enforcement of  planning restrictions can take place within ten years.   After ten years what would have been an unlawful use can  become an authorised use upon application for a Lawful Use & Development Certificate
  • Where there has been a breach of one or more of the conditions contained in an existing planning permission, proceedings for enforcement of planning restriction can take place within ten years of breach of the said condition.

There is no time limit on the enforcement of planning restrictions for properties which are listed or are in Special Planning Areas

WHEN DOES WORK UNDER A PLANNING PERMISSION COMMENCE?

The normal planning approval will contain a Condition to state that work must be commenced within 5 years of an outline approval or 2 years after the approval of matters reserved (not included) in the outline approval. The 1990 Act Section 56 provides clarity as to when works are said to have commenced. This provides that work commences on the happening of the earliest of the following “material operations”

  • Digging a trench for the foundations
  • The laying of a pipe or an underground mains
  • Any operation for the laying out or constructing a road to serve the development
  • Any act of demolition
  • A Change in the use of land
  • The construction of a building.

Provided any one of the above operations has been undertaken, work is said to have commenced for planning purposes and therefore this condition will have been satisfied. 

IS THERE ANY RISK OF STARTING WORKS AS SOON AS THE PLANNING PERMISSION IS GRANTED

The answer is “yes” as the Law gives ‘Interested Parties’ to a Planning Permission a period of three months 14 days to challenge in the High Court the grant of a Planning Permission where such a Party can show a failing on the part of the Local Authority in the application process

DOES THE DEVELOPMENT THE SUBJECT OF A PLANNING PERMISSION HAVE TO BE COMPLETED WITHIN A CERTAIN TIME PERIOD?

There is no AUTOMATIC statutory time limit for the “life” of a planning approval once the works have been started within the first 5 years. This was confirmed by the Courts in 2004 which ruled that a 1967 planning permission to demolish a house and build two semi-detached houses remained a valid planning permission notwithstanding that the only works carried out by the developer was in 1969 to demolish the house! 

However Section 94 of the 1990 Act  does give Local Authorities powers to accelerate the carrying out of works under a Planning Permission, by serving a Completion Notice on the Applicant. This Notice gives the Applicant warning that the Planning Permission will cease to have effect within a specified period of time. Work carried out up to the date of the expiry of the Notice will be lawful, but not further works can be carried out thereafter without a new planning permission. 

ACTION BY YOU

If you are aware of any building works or extensions or any  change of use at any time on a property at any time on the property, but especially during the last four years prior to your purchase, please alert us.

Always play safe and check with the Local Authority, before doing work on a property to see if a planning consent is needed for future works or change of use.   The planning department of most Local Authorities issue helpful guidance notes prepared by the Secretary of State supplemented by details of their own local arrangements.