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Permitted Development - Issues for Homeowners

on Thursday, 02 March 2023.

Permitted Development rights allow certain development to be carried out without the need to navigate the full planning process. Nevertheless, there may still be hurdles to overcome.

Introduction to Permitted Development

In England and Wales, planning permission must be obtained before carrying out "development". Development largely falls into two categories:

  1. building operations, such as construction, engineering or other works to land; and
  2. changes from one use of a particular building or piece of land which falls into one use class, to another use within a different use class.

Planning permission is normally obtained from the local planning authority ("LPA").

An exception exists for certain types of development that are automatically "permitted" by law. One key area of Permitted Development ("PD") used by homeowners are permitted development rights to extend their home, either by building into its existing curtilage or by adding additional storeys.

However, PD rights are not always available. This area of law is regularly changing and can be complicated to navigate.

This article briefly lists some common barriers of which it is important to be aware before beginning a development falling within PD rights.

Restrictions Within PD Rights Themselves

PD rights, including those governing household extensions, often contain conditions and restrictions which, if not met, may remove the availability of the PD right in particular circumstances.

If the circumstances mean the relevant conditions are not met and the PD right is not available, a formal application for planning permission will be necessary to carry out any development, even if it would normally fall within PD.

Prior Approval Process

Although PD rights can obviate the need for a formal planning application, certain PD rights are conditional on a successful application for prior approval being made to the LPA first. The grant of prior approval may contain conditions which must be followed when carrying out the development.

When determining a prior approval application, the LPA will consider whether the proposed development falls within the scope of the PD right, and other planning-related prior approval matters.

The applicant must prove that they fall within the scope of a particular permitted development right. There is a set list of evidence that must be included in a prior approval application and the LPA may request further information to assist its determination.

It is essential to wait for a grant of prior approval before beginning the development. If commenced before the LPA has determined the prior approval application, development that falls within PD can be unlawful and subject to enforcement action by the LPA.

Article 4 Directions

LPAs can make Article 4 directions which remove certain PD rights for a particular geographical area. Article 4 directions cannot prevent changes between uses that fall within the same statutory use class, but may remove building operation or change of use PD rights.

Before considering a new development, it is essential to ascertain whether the LPA has made any Article 4 directions. Article 4 directions may be non-immediate i.e. coming into force at a later date, so it is important to check the details.

Conditions in Planning Permission

PD rights can also be removed by planning condition in a planning permission for the existing development/use of the building. Planning conditions will override PD rights.

Unlike Article 4 directions, planning conditions can prevent changes from one use to another where those uses fall within the same use class.

Even where they do not expressly refer to permitted development, conditions may implicitly remove PD rights. For example, if a planning permission is states that a development may "only" be used in a certain way, it will often be interpreted as excluding any PD rights to change the use.

It is therefore essential to check the terms of any existing permission prior to carrying out new development.

Lawfulness of Previous Development and Current Use

PD will not apply to an existing development where previous development or the existing use is unlawful.

Moreover, where part of the construction of a building is unlawful, PD rights are unlikely to be available for the entire building, even if the unlawful works are removed after the PD has been carried out.

Changes of Use

Where a PD right exists allowing a change of use from Use "A" to Use "B":

  • Use A must be the current use. Intervening uses of the land or building since that use will remove PD rights.
  • Uses A and B must fall entirely within the scope of the relevant statutory provisions. This means that mixed uses cannot normally benefit from PD rights.

The courts have also rejected arguments that a proposed use is close to or analogous to a particular use class which enjoys PD rights; the proposed use must fall squarely within the provisions of the GPDO.

How We Can Help

VWV's Planning team can provide advice on the availability of PD rights and any associated restrictions, along with the content and limitations of current planning permissions. VWV can also advise on planning enforcement matters and planning obligations.

For more information, please contact Bethan Sykes in our Planning team at bsykes@vwv.co.uk, or complete the form below.

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