02 Planning and Consents Flashcards
What is planning permission?
Planning permission is the legal process followed in order to decide whether proposed developments should be allowed to go ahead
What main legislation governs the planning procedure?
Town and Country Planning Act 1990
When is planning permission required?
Planning permission is only needed if the work being carried out meets the statutory definition of ‘development’ under Section 55 of the Town and Country Planning Act 1990
What is included under the statutory definition of ‘development’?
- Building operations (e.g. structural alterations, construction, rebuilding, most demolition)
- Material changes of use of land and buildings
- Engineering operations (e.g. groundworks)
- Mining operations
- Other operations normally undertaken by a person carrying on a business as a builder
- Subdivision of a building (including any part of it) used as a dwellinghouse for use as two or more separate dwellinghouses
What is excluded under the statutory definition of ‘development’?
- Interior alterations (except mezzanine floors that increase the floorspace of retail premises by more than 200sqm)
- Building operations that do not materially affect the external appearance of a building
- A change in the primary use of land or buildings where the before and after use falls within the same use class
Does all ‘development’ require a planning application to be submitted?
Not when the development is classed as a ‘permitted developments’
What are permitted development rights?
The Town and Country Planning (General Permitted Development) Order 1995 enables central government to permit certain types of development so they do not require approval from the local planning authority - these are called ‘permitted developments’
Name some typical examples of permitted developments.
- Certain enlargements of houses not exceeding 50% of the curtilage (subject to a number of restrictions)
- Certain porches, doors and windows
- Installation of antenna and satellite dishes (up to a specific size)
- Gates, fences, walls and other enclosures (no more than 2m high)
- Exterior painting (other than advertisements)
- Internal alterations
- Certain changes of use class
- Temporary structures and plant for construction purposes
- Temporary structures remaining for no more than 28 days
- Demolition of a building
Are there any restrictions on permitted developments rights?
There are a range of exclusions that apply to permitted development rights for certain areas and building types:
- Listed buildings
- Conservation areas
- National parks
- Areas of outstanding natural beauty
- The Norfolk and Suffolk Broads
What are Article 4 Directions?
A mechanism whereby local authorities are able to remove permitted development rights by issuing an Article 4 Direction
Under what circumstances would you most likely come across an Article 4 Direction?
Most frequently applied to withdraw permitted development rights in conservation areas
What are the implications if an Article 4 Direction has been applied to an area in which you are looking to undertake construction works?
It does not mean a particular type of development cannot be carried out, only that it is not permitted without planning permission
Can local authorities add to permitted developments rights?
Yes, via a Local Development Order, which intends to relax planning controls for particular areas or categories of development, giving certainty to developers, reducing timescales and reducing costs associated with making a planning application
What is ‘prior approval’?
- ‘Prior approval’ may be required for some permitted developments, such as demolition of a building and change of use class from office to residential
- Application is much less onerous than a standard planning application since the principle of development has already been permitted
How would you determine whether a proposal is classed as a permitted development?
Ask the local planning authority by applying for a ‘Lawful Development Certificate’
What are ‘Use Classes’?
The Town and Country Planning (Use Classes) Order 1987 categorises uses of land and buildings
Name some of the different use classes for planning purposes.
- A1 - shops
- A2 - financial and professional services
- A3 - restaurants and cafes
- A4 - drinking establishments
- A5 - hot food takeaways
- B1 - business (offices excluding those in A2, research and development, light industry)
- B2 - general industrial
- B8 - storage and distribution
- C1 - hotels
- C2 - residential institutions
- C2A - secure residential institutions
- C3 - dwellinghouses
- C4 - small houses of multiple occupation
- D1 - non-residential institutions
- D2 - assembly and leisure
- Sui Generis - those that do not fall into the above, e.g. theatres, scrap yards, nightclubs, laundrettes, taxi businesses, casinos, mixed use (except where there is a primary use and other uses are ancillary)
What are the rules surrounding planning permission for changes of use?
- Not required when both the present and proposed uses fall under the same class, e.g. shoe shop to a greengrocer’s shop (both A1)
- Not required if permitted under the Town and Country Planning (Use Classes) Order 1987 - see Planning Portal for full list
- NB: permitted development rights may be removed by local authorities using Article 4 Directions
- Otherwise, planning permission is required
Is planning permission required to sub-divide a building?
Planning permission is not required to sub-divide a building where:
- Sub-division does not involve physical works that amount to ‘development’
- Newly formed units fall into the same use class as the existing, or there is a permitted development right allowing the new use
- Sub-division does not involve converting a single dwellinghouse to contain more than one residential unit
Is planning permission required for demolition generally?
- In most cases, planning permission is not required for demolition unless the local authority has made an Article 4 Direction restricting the permitted development rights that apply to demolition (e.g. in conservation areas)
- However, ‘prior approval’ (less onerous than standard planning application) may be required detailing how the demolition will be carried out
Is planning permission required for demolition of a listed building?
Planning permission is not normally required to demolish a listed building, however listed building consent may be needed
Is planning permission required for demolition in a conservation area?
Planning permission is usually required for demolition of a structure in a conservation area if:
- The volume of the building is more than 115 cubic metres
- A gate, fence, wall or railing is over 1m high next to a highway, public footpath or open space, or over 2m high elsewhere
There are a few exceptions to the above so it is always best to speak with the local authority first
Is planning permission required to run a business from home?
- Planning permission is not normally required to run a business from home, provided the dwellinghouse remains a private residence first and a business second
- May depend on the nature of the business however, e.g. increases in traffic, noise, smells and other disturbances
If a planning application is not required, what other considerations may be needed?
- Works to protected trees
- Advertisement consent
- Listed building consent
- Building regulations
- Hazardous substances consent
- Environmental permits/licences
How is the planning system enforced?
If a breach has occured (undertaking development without permission or breaking one of the planning conditions), the local authority can issue an enforcement notice requiring things to be put back as they were
What is the time limit for enforcement action?
Developments are immune unless enforcement action is issued within:
- Four years where the breach comprises either operational development (i.e. carrying out of unauthorised building) or change of use into a single dwellinghouse
- Ten years for all other breaches (e.g. unauthorised uses, contravention of planning conditions)
What factors are likely to affect the outcome of planning permission?
- Design - style, materials, size, location etc.
- Neighbours - enjoyment of property (e.g. overshadowing, blocking views etc.)
- Nature and wildlife - protected species (e.g. bats, badgers etc.)
- Environmental health - air pollution, unfit housing, unhygienic food preparation etc.
- Roads and highways - if affected during and/or after construction
What are the main types of planning application?
- Full Planning Application
- Outline Planning Application
What is the difference between an application for full planning permission and outline planning permission?
Full Planning Application:
- All details of the proposed development are submitted at the same time
- If permission is granted, subject to compliance with any planning conditions, no further engagement with the local planning authority is required (although other consents may be required)
Outline Planning Application:
- Submission of outline proposals before substantial costs are incurred developing a detailed design
- Permission is granted subject to approval of one or more ‘reserved matters’ at a later date
Your client has not got a full design on his building, but he wants to know if he can get planning permission - what can he do?
Submit an Outline Planning Application
What information are you asked for in a standard planning application?
- Application form (applicant/agent details, site address, existing use, changes in floorspace, existing and proposed materials, access alterations etc.)
- Ownership certificates
- Design and access statement
- Environmental Impact Assessment
- Flood Risk Assessment
- Location plan
- Site plan
- Other plans and drawings
- Fee
What is the difference between a location plan and a site plan?
Location plan:
- Shows the application site in relation to its surrounding area (adjoining roads, buildings etc.)
- Red line border showing the application site, blue line border showing any other land owned by the applicant close to the application site
Site plan:
- Shows the proposed development in relation to the property boundary
- Must also show the direction of north and any other buildings on the site
What information would you provide on the drawings in a planning application?
- Existing and proposed elevation, layouts, cross-sections, details etc.
- Should include key dimensions, brief notes on materials used, access routes etc.
What is a design and access statement?
Concise report explaining the design principles and concepts have been applied and how the proposed development can be adequately accessed by prospective users
When is a design and access statement required?
- Only required for buildings of more than 1000sqm, housing developments of 10 dwellings or more and developments requiring listed building consent
- In conservation areas, design and access statements are required for single dwellings or buildings of more than 100sqm
What information should be included in a design and access statement?
Level of detail should be proportionate to complexity of the application and usually includes details of the layout, scale, landscaping, appearance, context, use and access
What is an Environmental Impact Assessment?
Aims to ensure the environmental effects of a proposed development, which is likely to have significant effects, are properly considered
Are Environmental Impact Assessments required on all planning applications?
Only required on a small proportion of developments where major development is proposed
When is a Flood Risk Assessment required on a planning application?
- In zone 2 or 3 of flood risk areas (see Flood Map from the Environment Agency)
- Where site has critical drainage problems (as classified by the Environment Agency)
- Where the development would increase flood vulnerability
- Developments larger than 1 hectare
What notifications do you have to give when submitting a planning application?
Notice of the proposed development must be served to any other owner or agricultural tenant
What is the definition of ‘owner’ in the planning process?
Anyone with a freehold interest, or leasehold interest with an unexpired term of seven years or more
What do the different ownership certificates relate to in a planning application?
- Certificate A - sole ownership and no agricultural tenants
- Certificate B - shared ownership (all other owners/agricultural tenants known)
- Certificate C - shared ownership (some other owners/agricultural tenants known)
- Certificate D - shared ownership (no other owners/agricultural tenants known)
How much does it cost to apply for planning permission?
Dependant on:
- Type of application (e.g. householder planning permission, full planning permission etc.)
- Size of gross floor space created or numbers relating to sub-division/change of use
Some consents require no fee (e.g. listed building consent, demolition in a conservation area, disabled access improvements to existing dwellings)
How is VAT dealt with on planning applications?
No VAT is charged on planning fees as the service is considered a ‘non-business’ activity
Can amendments to a planning application be made after it has been submitted?
Applicants can suggest changes to an application before a decision has been made, however it is at the discretion of the local planning authority whether to accept such changes or whether re-consultation or even a new application is required
What are the timescales for making a decision on a planning application?
- 8 weeks for standard developments
- 13 weeks for major developments
- 16 weeks for developments subject to an Environmental Impact Assessment
How is a decision made on a planning application?
- Once an application has been validated and registered, the LPA will publicise and consult on it
- A case officer is appointed who will visit site and suggest amendments to the application
- They will either notify neighbours or put up a notice on or near the site (may also advertise in a local newspaper)
- The parish, town or community council will usually be notified and other bodies such as the county council, Environment Agency and relevant Government Office may need consulting
- Specified information about all planning applications needs to be published on their websites
- Anyone can then comment on the proposal which the LPA can then assess in line with their own judgements
- Once a decision is made, written notification is sent to the applicant
For how long does planning permission generally last?
If granted, and unless the permission states otherwise, the applicant has 3 years from the date it is granted to start the development
What are planning conditions?
Planning conditions are used as an alternative to outright refusal, where the LPA may grant permission subject to certain conditions
What is a Section 106 agreement?
Planning obligations under s.106 of the Town and Country Planning Act 1990 are private agreements made between LPAs and developers attached to a planning permission that require fulfilling for the development to be acceptable
What is the difference between planning obligations and planning conditions?
The land itself, not the applicant, is bound by a s.106 agreement (planning obligations), therefore any future owners will need to consider them
Explain the planning appeal process.
- Appeals can be made against most LPA decisions
- Decisions are made by Planning Inspectors on behalf of the Secretary of State (however some larger appeals may be dealt with by the Secretary of State directly)
- Generally, appeals are determined on the same basis as the original application, however Inspectors will form their own opinions
- Appeal decisions can only be challenged through the courts
What timescales are involved in planning appeals?
- Usually need to appeal within 6 months of the decision notice, however depends on the type of appeal (e.g. 12 weeks for householder planning consent determined via the fast track service, 8 weeks for advertisement consent, 28 days for enforcement action etc.)
- Decisions are usually made within 8 weeks of the appeal, however also depend on the type of appeal
How are planning appeals paid for?
Normally, all parties meet their own costs, however where another party has behaved unreasonably which has led to wasted expense, costs may be awarded to the aggrieved party
Do you have to pay a fee to make a planning appeal?
Usually no fee to appeal, except for enforcement appeals
What is a listed building?
Listed buildings are buildings of special architectural or historic interest
What is the purpose of listing?
The purpose of a listing is to identify the most important parts of our heritage so they can receive special protection, making sure our history can be enjoyed by present and future generations
What legislation protects listed buildings and how?
Listed buildings are protected by the Planning (Listed Buildings and Conservation Areas) Act 1990, which makes it a criminal offence to demolish, alter or extend listed buildings without listed building consent
How can you find out whether a building is listed?
All designated assets can be viewed on the National Heritage List for England (NHLE)
What is the difference between Grades I, II* and II for listed buildings?
- Grade I - buildings of exceptional interest, sometimes considered to be internationally important
- Grade II* - particularly important buildings of more than special interest
- Grade II - nationally important buildings of special interest
Are there any other categories of listing apart from Grades I, II* and II?
- Scheduled ancient monuments
- Historic parks and gardens
- Conservation areas
- Historic battlefields
- Designated wrecks
- World heritage sites
- Local listings - maintained by some LAs, offer no statutory protection but receive a degree of protection locally
What is the difference between Historic England and English Heritage?
Historic England:
- Formerly known as English Heritage (before 1st April 2015)
- Public body that looks after England’s historic environment by securing the preservation of ancient monuments and historic buildings as well as promoting the preservation of the character and appearance of conservation areas
- Champions the nation’s wider heritage, runs the listing system, deals with planning matters and gives grants
English Heritage:
- Formerly provided the role Historic England now performs (before 1st April 2015)
- English Heritage is now a charitable trust that manages the national collection of over 400 historic sites (including Stonehenge, Dover Castle and Hadrian’s Wall)
When is listed building consent required?
- Demolition, alteration or extension of a listed building in a way that is likely to affect its special architectural or historic interest is only allowed with the consent of the LPA or Secretary of State
- Specific to each building so there are no general rules about what can and cannot be done - need to speak to a Local Authority Conservation Officer to determine what is required
Explain the listed building consent process.
Applications for listed building consent can be submitted via the Planning Portal:
- Must be submitted in addition to standard planning applications (or on its own when no planning application is required)
- Decisions generally take 8 - 13 weeks
- Appeals can be made to the Secretary of State within 6 months of the decision
- It is not possible to make ‘outline’ applications for listed building consent
- There is no fee attributed to listed building consent
What information are you asked for in a listed building consent application?
- Applicant/agent/site details
- Listed building details
- Description of proposed works
- Materials details
- Drawings/plans
- Design and access statement
- Pre-application advice obtained
- Neighbourhood and community consultation details
- Immunity details (if applicable)
- Ownership certificates
- Declaration signatures
What is a Certificate of Immunity?
Application that can be made to give developers reassurance that the development will not be prevented by the building becoming listed
What is a Building Preservation Notice?
Can be used to prevent un-listed buildings from being demolished or altered (for up to 6 months) whilst an application to list them is considered
What considerations do you have to make when working on a listed building?
- Liaise with the local authority to determine whether consent is required
- Show consideration to preserving the character/historic interest/special features of the building in any proposed works
- Talk to a conservation officer to agree what work is/is not allowed and what materials can/cannot be used
- Submit listed building consent application
- Submit a heritage statement
What is a heritage statement?
- Required by the National Planning Policy Framework (NPPF) to help LAs determine whether the proposed works to a heritage asset should be granted approval
- Required for any planning application within designated conservation areas, registered historic parks, archaeological sites or for listed building consent
What is contained in a heritage statement?
Level of detail should be proportionate to the works, containing:
- Assessment of heritage significance
- Assessment of impact
- Mitigation - i.e. the proposed strategy to address any impact to the heritage asset
What are the VAT issues relating to listed buildings?
- Previously, the cost of approved alterations to listed buildings and scheduled monuments was zero rated
- However, as of October 2012, VAT at the standard rate applies to all materials and services supplied for such works
What is a conservation area?
Conservation areas are areas that have been designated by local authorities as being of special architectural or historic interest, the character or appearance of which it is desirable to preserve or enhance
Who decides what areas are conservation areas?
Local authorities have a legal duty to designate and review conservation areas under the Planning (Listed Buildings and Conservation Areas) Act 1990
How can you find out whether a building or site is within a conservation area?
Local authority websites usually contain maps outlining conservation areas, however it is also best to speak to a local authority conservation officer if unsure
What are the implications of a building being in a conservation area?
Changes to the external appearance (including demolition) of a building in a conservation area will require planning permission if the local authority has issued an Article 4 Direction to remove certain permitted development rights in that area
Is separate conservation area consent required to work on buildings within conservation areas?
Separate conservation area consent was abolished by the Enterprise and Regulatory Reform Act 2013
What are the implications if you worked on a building in a conservation area without consent?
It is a criminal offence to demolish or alter a building in a conservation area without consent through the planning permission procedure - may be asked to fully reinstate
Is planning permission required for work on a listed building that is also in a conservation area?
Planning permission will not be required for demolition of a structure in a conservation area that is also a listed building or scheduled monument - in this case, only listed building consent or scheduled monument consent will be required
What is the NPPF?
- The National Planning Policy Framework (NPPF) was published by the DCLG in March 2012 and sets out government planning policy for England
- It gives guidance to LPAs in drawing up local plans and on making decisions on planning applications (e.g. promotion of sustainable development)
What are local plans and neighbourhood plans?
- Local Plan: the plan for the future development of a local area, drawn up by the LPA in consultation with the community
- Neighbourhood Plan: a plan prepared by a Parish Council or Neighbourhood Forum for a particular neighbourhood area
What is the purpose of a local plan?
The NPPF aims for every area to have a clear local plan which sets out local people’s views of how they wish their community to develop, against which planning applications can be judged
What impact has the NPPF had on PPSs and PPGs?
The NPPF replaces planning policy statements (PPS) and planning policy guidance (PPG):
- PPG were UK government guidance of national planning policy (until March 2012)
- PPS were gradually replacing PPG until the NPPF was introduced, which has consolidated both PPG and PPS
What is a scheduled monument?
- A scheduled monument is a historic building or site that is included in the Schedule of Monuments
- Includes sites such as Roman remains, burial mounds, castles, bridges etc.
What legislation governs scheduled monuments?
Ancient Monuments and Archaeological Areas Act 1979
What general rules apply to scheduled monuments?
- By definition they are considered to be of national importance and scheduled monument consent from the Secretary of State (not the LPA) is required for any works to, or that may affect (e.g. excavation, flooding), the monument
- It is a criminal offence to destroy, damage or alter a scheduled monument without written consent
What information is required for a scheduled monument consent application?
- Applicant details
- Agent details
- Owner of the monument details
- Monument name, location and grid reference
- Description of proposed work
- Plans / drawings detailing the work
- Any other relevant information
- Signature
- Ownership certificate (as per planning applications)
Who manages the scheduled monument consent process?
Historic England manages the process of scheduled monument consent on behalf of the Secretary of State for Culture, Media and Sport
How would you determine if an area contains a scheduled monument?
The Schedule can be viewed online on the National Heritage List for England (NHLE)
What is a TPO?
Tree Preservation Orders (TPOs) prohibit the cutting down, uprooting or lopping of protected trees or woodlands without the LPA’s written consent
When might you expect a TPO to be issued?
LPAs make TPOs if they appear to be expedient in the interests of amenity (e.g. add to the character of a conservation area, screen an eyesore, generally scarce etc.)
Who is responsible to maintain trees that are protected by TPOs
Tree owners are responsible for their maintenance, however there are no rules stating how often or to what standard they need to be maintained
What is a SSSI?
A Site of Special Scientific Interest (SSSI) is an important site of natural habitat, wildlife and geological heritage that should be taken into account during the planning process
Who is responsible for identifying SSSIs?
Natural England has the responsibility of identifying and protecting SSSIs under the Wildlife and Countryside Act 1981
What is a Section 278 agreement?
Section 278 of the Highways Act 1980 allows a developer to carry out works to a public highway
When would a Section 278 agreement be required?
Generally necessary where planning permission has been granted for a development that requires improvements or changes to a public highway, such as:
- Roundabouts
- Junctions
- Traffic lights
- Improved pedestrian and cyclist facilities
- Traffic calming measures
