Permitted Development Rights
What are Permitted Development Rights?
‘Development’ is a term defined by the 1990 Town and Country Planning Act. Most building work, no matter what the size, is defined as ‘Development’. All ‘Development’ requires Planning Permission unless it is deemed to be ‘Permitted Development’. Accordingly, Permitted Development Rights allow certain works to take place without Planning Permission.
Permitted Development rights are granted by Parliament, rather than by a Local Planning Authority (LPA). The Town and Country Planning (General Permitted Development) (England) Order 2015 sets out the legislation. There are different rules for Wales, Scotland and Northern Ireland. The Order is a complex and technical document to navigate. However, at a more general level, it is useful to understand why Permitted Development rights exist.
Why Permitted Development Rights Exist?
There are two reasons. The first reason provides a mechanism to remove certain small scale development operations from the formal Planning process. The Government’s primary driver behind this is to reduce demand within the planning system and to allow it to operate more efficiently. An example being the possibilities that a homeowner may have to extend their house.
The second reason is wholly political: to provide a mechanism for Government to allow development works to go ahead at pace which they believe are in the overall interest of the country. An example being the 2013 introduction of Permitted Development rights to allow offices to be changed to residential homes. These PD rights were brought in (with arguable success) to try and mitigate the UK’s housing shortage.
Before some Permitted Development Rights can be used, the legislation requires the developer to obtain “Prior Approval” from the Local Planning Authority.
Recent changes to Permitted Development Rights.
Permitted Development Rights change regularly – particularly those influenced by political agenda. Changes can be made to primary legislation or by amendments to primary legislation. For example several amendments have been made to the primary 2015 General Permitted Development Order (GPDO); a recent amendment extended Permitted Development rights to allow rooftop extensions.
In recent years, amendments to Permitted Development legislation have predominantly focused on housing and the economy. For example new Permitted Development Rights were introduced in April 2021. Some of them were radical in their scope, such as:
– Permitted Development Rights (a new Class MA) to allow change of use from Commercial (Class E) to Residential (Class C3)
– Expansion of Permitted Development Rights at Ports to allow Ports to become ‘Free Ports’
– Changes to the Permitted Development Rights for Office to Residential conversions by introducing minimum space size standards.
– Permitted Development Rights to allow schools to enlarge their facilities
Does your project qualify for Permitted Development Rights?
Permitted Development Rights have been expanded in recent years and now apply to many different use classes such as Residential, Commercial, Ports, Schools, Hospitals and Agricultural Farms amongst others.
Rodic Davidson can evaluate the Permitted Development Rights that may apply to your project. Sometimes these can set a useful ‘baseline’ position, providing a useful point of negotiation with the Local Planning Authority. If a scheme would be against planning policy but allowable under Permitted Development, it can be more persuasive if a planning strategy is implemented that confirms the Permitted Development rights at the outset by obtaining a Certificate of Lawful Development from the Local Planning Authority. This serves to remove any ambiguity about the legality of the Permitted Development rights pertaining to the property, although it is important to remember that a Certificate of Lawful Development only confirms that the proposals are lawful at the date of issue. If planning legislation changes, the Certificate (unlike a Planning Permission which has a time limit) does not confer ongoing permission.
There are a number of instances where Permitted Development Rights do not apply or where they may have been removed.
For example a Local Planning Authority can remove Permitted Development Rights by imposing an Article 4 Direction. The imposition of an Article 4 Direction requires planning permission to be obtained for development that would otherwise be legally allowed by utilising Permitted Development Rights. The National Planning Policy Framework (NPPF) requires Local Authorities to utilise Article 4 Directions sparingly, stating that, ‘”They should be applied in a measured and targeted way.” Often Article 4 directions are applied to streets or groups of properties and they seek to control a particular aspect. A typical example could be the imposition of an Article 4 Direction that removes the Permitted Development Right to paint a house any colour. Or an Article 4 Direction that removes the right to position a satellite dish on a building. On occasion, Local Councils attempt to use Article 4 Directions more extensively. In 2013, Islington Borough Council, for example, adopted a borough-wide Article 4 Direction removing Permitted Development Rights for office to residential conversions (B1 to C3). The Secretary of State intervened the following year and successfully argued that the introduction of the borough-wide Direction was contrary to the guidance of the NPPF in that it was not applied in a ‘measured or targeted way’. The Secretary of State intervened and modified the direction to only cover specific clustered areas rather than the whole borough.
Permitted Development Rights do not apply to Listed buildings.
What is a Certificate of Lawful Development ?
A Certificate of Lawful Development confirms that the development works are lawful either as already implemented (Existing Use) or as may be implemented (Proposed Use). It is also possible to apply for a Certificate of Lawful Development to confirm that works to a Listed Building are already, or will be, lawful.
There is no legal requirement to obtain a Lawful Development Certificate. However, obtaining one removes any ambiguity that Planning Permission may be required. There are a number of reasons why obtaining a Certificate of Lawful Development may be prudent. For example, house extensions can often be built utilising Permitted Development Rights but, if a neighbour complains, it may be hard (and lengthy) to prove that the work is lawful if a Certificate has not been obtained. Indeed, the neighbour could potentially seek an injunction to stop that work and this may be more likely to be served by a court if there is no documentary evidence that the works are being undertaken legally.
The application procedure for a Certificate of Lawful Development is similar, but not exactly the same, as a Planning Application.
What are agricultural permitted development rights?
Agricultural Permitted Development Rights relate specifically to land (or buildings thereon) in agricultural use. Agriculture is defined by the Town and Country Planning Act 1990 as, “horticulture, fruit growing, seed growing, dairy farming, the keeping or breeding of livestock, the use of grazing land, meadow land, osier land, market garden and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes, and ‘agricultural’ shall be construed accordingly”.
Thus, when it has been established that the land is in agricultural use, Agricultural Permitted Development Rights may be available. There are other constraints that may limit the Agricultural Permitted Development Rights, most notably the land area. The area needs to be at least 0.4ha. If it is under this area, planning permission will be required. For agricultural land over 0.4ha, there are various Classes of Permitted Development Right – Class A (for land area over 5ha), Class O, Class Q, Class R & Class S:
– Class A Permitted Development Rights allow the erection or alteration of a building as may be reasonably necessary for the purposes of agriculture.
– Class O Permitted Development Rights allow farm buildings used as offices to be converted to houses.
– Class Q Permitted Development Rights allow change of use of an agricultural building to up to 5 houses.
– Class R Permitted Development Rights allow the change of use of agricultural buildings to commercial uses (such as retail, farmshop, restaurant, café, office or gym).
– Class S Permitted Development Rights allow the change of use of agricultural buildings to a state-funded school or registered nursery.
There are a number of exclusions and points of detail in connection with the above, such as the designation of the land – such as Area of Outstanding Natural Beauty, Site of Special Scientific Interest, Conservation Area or the designation of a building – for example if it is Listed.
Retail to Residential Permitted Development rights?
Recent changes to Permitted Development Rights allow retail to residential conversions. Referring to Use Classes, these Rights allow Use Class E to change to Use Class C3, subject to certain exclusions and points of detail.
The Rights were brought in by the Government in 2021 to try and make better use of vacant shops, many of which are boarded up.
Robert Jenrick, the Secretary of State for Housing, Communities and Local Government stated that the expanded Permitted Development Rights would, “regenerate and revitalize English town centers as well as help to solve the housing crisis”. The policy has caused controversy – not least because the effects of irreversible conversions (most authorities seek to protect housing) and the inevitability of fragmented retail parades.