Understanding Planning Law

Planning law covers a wide range of areas and is a highly emotive topic because it affects more than just land; planning decisions impact wider issues than just the development and use of the land identified. This article looks at some of the key areas.

Development

One central pillar of planning management in England and Wales  is the legal definition of ‘development’ provided in section 55(1) of the Town and Country Planning Act 1990 (as amended) (the Act) which states: 

“development” means the carrying out of building, engineering, mining or other operations in, on, or under land, or the making of any material change in the use of any buildings or other land.

There are two limbs to the definition of development:

1. Operational development e.g. building a new house
2. Material change of use e.g. converting a house to a hotel

Operational development covers three types of works:

1. Building operations, which includes demolition of buildings, rebuilding, structural alterations of or additions to buildings and other operations normally undertaken by a person carrying on business as a builder
2. Engineering operations, including the formation or laying out of a means of access to highways

• Mining operations

Material changes of use require an analysis of the use of the land and consideration of the facts of a matter. The change must be more than de minimus and must be something beyond a permitted change of use.

Exclusions from being considered a material change of use are:

• Internal maintenance, improvement, or other alteration or external works so long as they do not materially affect the external appearance of the building
• Works of maintenance or improvement carried out by the highways authority within the highway
• Statutory undertakers work to inspect, repair or renew
• The use of any building or other land within the curtilage of a dwelling house for any purpose incidental to the enjoyment of the dwelling house
• The use of any land or buildings for any purpose within the same use class

Use Class Orders

The Town and Country Planning (Use Classes) (Amendment) Regulations 2020 came into force 1 September 2020 and introduced a new Class E. Class E includes several of the earlier use classes:

• Class A1 – shops
• Class A2 – financial and professional services
• Class A3 – restaurants and cafes
• Class B1 – business

Class E permits residential conversion from restaurants and large shops, nurseries and day centres,  to professional services and GP surgeries.

New classes F1 and F2 take the place of Class D1 non-residential institutions and Class D2 assembly and leisure.

The new regulations also made a lot of uses sui generis. Sui generis use means that planning permission will always be required, for any change, even to another sui generis use. From 1 September 2020 the following uses fall within sui generis classification (subject to some minor exceptions about pending applications and transitional arrangements):

• Bingo halls
• Dance halls
• Live music venues
• Hot food takeaways
• Public houses

 

A building or piece of lands use is not always easy to categorise neatly, but a good starting place is its primary use i.e. what is its main function/use. Primary uses will usually determine the relevant use class in respect of any permitted development rights that stem from that use. Although it is possible that an ancillary use – a use that is ‘ordinarily incidental’ to the primary use might intensify and become the primary use.

Intensification is a material change of use that usually gives rise to the need to apply for planning permission unless the intensified use falls within the same use class, which might be more likely now as Class E includes such a wide variety of uses.

Permitted Development Rights

 The Town and Country Planning (General Permitted Development) Order 2015 (as amended) (the GDPO), Part 20 introduced a series of new rights to build new housing:

• Class A – new dwelling house or detached blocks of flats
• Class AA – new dwelling house or detached buildings in commercial or mixed-use
• Class AB – new flats in the airspace above terrace buildings (including semi-detached buildings) in commercial or mixed (including residential) use; two storeys if the existing building is two or more storeys tall, or one additional storey where the existing is one storey
• Class AC – new flats in the airspace above terrace dwelling houses (including semi-detached houses); two storeys if the existing building is two or more storeys tall, or one additional storey where the building is one storey
• Class AD – new flats in the airspace above detached dwelling houses; two storeys may be added if the existing building is two or more storeys tall, or one additional storey where the building consists of one storey
• Class ZA – allows the demolition of a single detached building in existence on 12 March 2020 that was used for office, research and development or industrial processes, or a free-standing purpose-built block of flats, and its replacement by an individual detached block of flats or a single-detached house within the footprint of the old building, with up to two additional storeys in the airspace

Part 20 permitted development rights are subject to prior approval, which is set out under Paragraph B which prescribes details that must be presented with that prior approval application.

Space Standards

From 6 April 2021 all permitted development homes  must comply with the governments nationally described space standards issued March 2015, which set out a minimum internal space within new dwellings e.g. 37sqm for a one-bed studio flat and 50sqm for a two-person flat.

Space standards are part of the planning system, not building regulations.

Planning Applications

There are different forms of planning permission:

1. Outline permission – grants permission for the principle of development with the details to follow e.g. up to 300 dwellings
2. Reserved matters approval – approves the details of a development that has been granted outline permission
3. Full permission – grants permission for the development where all the details are known up-front
4. Section 73 application – relate to an earlier permission already granted but seek to amend specific detail of the earlier permission, often known as a ‘variation’ application it creates a wholly new planning permission i.e. both permissions remain in force and effect
5. Non-material amendment applications – relate to permissions already granted and seek to change minimal details of that permission without changing the overall principle of permission

Conditions & Planning Obligations

Planning permission will usually be granted subject to conditions. Conditions must meet legal tests to ensure that they are necessary, relevant, appropriate, precise, fair and reasonable and capable of enforcement.

Non-compliance with conditions granted on a planning permission can give rise to enforcement action by the local planning authority. Enforcement notices may be issued and non-compliance with an enforcement notice is a criminal offence.

Planning Obligations under Section 106 of the Act are often provided in support of an application for planning permission, although they can be provided at any time, by anyone with an interest in the land, to restrict or control the use or development of their interest in the land. They are most commonly used to provide for elements that would otherwise lead to an application for planning permission being refused e.g. a market housing scheme with no onsite affordable housing would be required to provide a financial contribution towards the LPAs provision of off-site affordable housing. Conditions cannot require the payment of monies, but S106 agreements can provide the mechanism by which payments may be made to the LPA. They should always be supported by local plan policies.

Community Infrastructure Levy (CIL)

CIL was introduced by the Planning Act 2008 and came into force 6 April 2010. The Community Infrastructure Levy Regulations 2010 (as amended) allow ‘charging authorities’ to choose whether to set a charge in its area for ‘new development’ although it is not mandatory.

There is a suggestion that S106 and CIL will be replaced by an Infrastructure Levy, but the details are awaited following the government’s Planning White Paper, August 2020, entitled Planning for the Future.

Enforcement

Section 171A of the Act prescribes a timescale within which the LPA can take enforcement action for breaches of the planning regime. These timescales are:

1. Building operation, engineering or mining operations without planning permission – 4 years from the date operation completed
2. Change of use of any building to use as a single dwelling house – 4 years from the date of breach/start of use as a dwelling house
3. Any other breach such as unauthorised changes of use, breaches of condition – 10 years from the date of the breach.

Where it appears to LPA that a breach has occurred the officers can issue a Planning Contravention Notice (PCN) to request information about the operations being carried out on the land which will assist the LPA in deciding whether to take enforcement action.

Enforcement Notices can be issued where there is a breach of planning and they will set out remediation steps that must be complied with within a prescribed timescale unless an appeal is made before that date. Appeals are heard by the Planning Inspectorate. If no appeal is made, or an appeal is unsuccessful, the notice takes effect and failure to comply with an effective notice is a criminal offence.

Breach of condition notices address breaches of condition and do not have a right to appeal, due to the fact that the condition will have benefited from a right of appeal upon its imposition on grant of permission. Non-compliance with a breach of condition notice is a criminal offence.

Stop Notices and Temporary Stop Notices can be issued by LPA when considered expedient that the relevant activity should stop immediately. These notices carry a risk of compensation so are rarely used by the LPA.

Injunctions may be used to prevent someone from commencing or continuing to breach planning management. These are most often used in relation to unauthorised encampments, most often used where other methods have been exhausted without full effect.

There are several circumstances of ‘strict liability’ offences that do not require the issue of a notice before prosecution proceedings may be issued by the LPA such as unauthorised works to a listed building, demolition of a building in a conservation area without prior planning permission and display of an unauthorised advertisement.

If you have any questions about planning law or would like to know more about this topic, please feel free to contact Pamela Chesterman, Head of Planning.