Planning Law Flashcards
when is PP required?
- Planning permission (PP) is required for developing land.
what is the definition of developing?
o Developing inc.: building; engineering; mining or other operations in, on, over or under land; making use of any material change in the use or any buildings or other land
what are the two strains of ‘developing’?
o Generally 2 strands: 1) operational development 2) change of use
what things are not ‘developing’?
Matters which are not ‘developments’ (i.e. do not require PP):
o Maintenance, improvement or alteration which affects only the interior or does not materially affect the external appearance
o Some changes of use
when does change of use not require PP?
Change of use within the same Use Class do not require PP (i.e. from clothes shop to restaurant as both are within class E)
when does change of use require PP?
Change of use from one Use Class to another or to/from Sui Generis will require PP, unless PP is automatically granted (see: matter which do not require express PP)
what is Use Class Order B in England?
o B2 – general industrial
o B3 – storage and distribution
what is Use Class Order C in England?
C – residential uses
C1 – hotels
C3 – dwelling houses
C4 – multiple houses in occupation
what is Use Class Order E in England?
E – commercial, business and service
E(a) – retail sale of goods, other than hot food
E(b) – sale of food and drink for consumption on the premises
E(c) – financial and professional services
E(g) - uses which can be carried out in a residential area without detriment to its amenity, including offices to carry out any operational or administrative functions and research and development.
what is Use Class Order F in England?
F – local community and learning
F1 – learning and non-residential institutions
F2 – local community (including shops selling essential goods in premises not exceeding 280m2 with no other such facility within 1000m)
what is Use Class Order A in Wales?
o A1 – shops
o A2 – financial and professional services
o A3 – food and drink
what is Use Class Order B in Wales?
o B1 – business
o B2 – general industrial
o B8 – storage and distribution
what is Use Class Order C in Wales?
C – residential uses:
C1 – hotels
C2 – residential institutions
C3 – dwelling houses or main residence
C4 – homes in multiple occupation
C5 – dwelling houses not sole or main residence
C6 – short term lets
what is Use Class Order D in Wales?
o D1 – non-residential institutions
o D2 – assembly and leisure
what does PP usually state as to timing?
PP usually states a time it has to implemented (i.e. started) within:
o England 3 years from date of permission
o Wales 5 years from date of permission
what is sui generis? give examples
uses which could have a potentially adverse impact on locality i.e. entertainment establishments (eg. cinemas, bingo), drinking establishments, hot food takeaways
what is the general rule on the duration of PP?
- General rule once obtained PP & any conditions run with the land and, once implemented, last forever (unless a completion notice is served)
when must PP usually be implemented by in England and Wales?
o England 3 years from date of permission
o Wales 5 years from date of permission
what happens if PP is not implemented within the timescale provided?
- If PP is not implemented within this time, it will lapse and obtained again
what is the position as to the PP completion date?
- PP don’t generally state a completion date, but if the Local Planning Authority think completion won’t take place in a reasonable time, they can serve a completion notice which states the PP will cease to have effect if completion has not taken place by a given date (completion notices are rare)
what will a LA do if they think a project will take too long?
- PP don’t generally state a completion date, but if the Local Planning Authority think completion won’t take place in a reasonable time, they can serve a completion notice which states the PP will cease to have effect if completion has not taken place by a given date (completion notices are rare)
what must be considered as well as PP?
- The application will need to obtain other relevant permissions and PP does not confer a right to breach an enforceable covenant
when is PP not required?
- PP is automatically granted in some cases (i.e. no need to apply) under Town and County Planning (General Permitted Development) Order (England GDPO 2015) (Wales GDPO 1995)
what are common ‘permitted’ developments?
Most common GDPO ‘permitted developments’ are:
o Developments within the curtilage of a dwelling house (i.e. extensions below a certain size);
o Minor operations (i.e. painting or installation of CCTV)
o Specified changes between use of classes; and
o Changes from certain sui generis uses
how can ‘permitted developments’ be changed?
- The SOS or LPA can exclude a permitted development by issuing an Article 4 Direction. Solicitor must always check the latest GPDO before relying on automatic PP and make enquiries of the LPA (i.e. local search pre-exchange)
what should a solicitor check before advising as to a ‘permitted development’?
- The SOS or LPA can exclude a permitted development by issuing an Article 4 Direction. Solicitor must always check the latest GPDO before relying on automatic PP and make enquiries of the LPA (i.e. local search pre-exchange)
what enforcement rights do the LPA have?
- LPA has the right to enter a property or ask for information using a Planning Contravention notice to ascertain if there has been a breach of PP.
what should be done if there is any doubt as to whether the development is ‘permitted’?
- If there is doubt, a Certificate of Lawfulness of Proposed Use or Development under s192 TCPO should be applied for.
explain the process and possible outcomes of a Certificate of Lawfulness of Proposed Used
Application is made to the LPA before the works have started.
Possible outcome:
o Approved it is either not a development or is covered by GPDO; or
o Refused not either of the above. PP must be obtained.
what can the LPA do if there has been a breach of planning law?
issue:
- an enforcement notice
- stop notice
- breach of condition notice
- injunction
what happens if there is a breach of an issued notice?
- Failure to comply with a notice is punishable by fine
what are the time limits for the LPA to take enforcement action?
o Operational development without PP within 4 years of the breach
o Change of use to a single dwelling house within 4 years of the breach
o All other breaches within 10 years of the breach
what are the time limits for the LPA to take enforcement action for a change of use to a single dwelling house?
4 years from the breach
what are the time limits for the LPA to take enforcement action for an operational development without PP?
4 years from the breach
what are the time limits for the LPA to take enforcement action for all other breaches?
10 years from the breach
who can action be taken against when there has been a breach?
- Action is taken against the current owner. This may not necessarily be the person who built the works.
when is an enforcement notice issued?
Issued when there is a breach of planning control and it is expedient to do so in light of planning policies for the area.
who must the enforcement notice be served on?
the property owner; occupier (if different) and any other person with an interest in the land (i.e. mortgagee)
what must the enforcement notice specify?
the alleged breach, steps to remedy, timescale for doing so
when does an enforcement notice become effective?
- It becomes effective 28 days after service
who can appeal an enforcement notice?
- Any person interested in the land can appeal an EN
what additional powers are there in Wales in relation to enforcement notices?
- LPA can issue an enforcement notice warning if they think there has been a breach but PP might be granted if an application was made
- The warning must describe the breach and warn that further action may be take if an application is not made within a specified time
re: stop notice
when can this be issued?
- This can only be used if an EN has been issued.
re: stop notice
what effect does this have?
- A stop notice immediately halts activities (whereas an EN doesn’t take effect for 28 days and is paused if it is appealed)
re: stop notice
what interim measure might be taken?
- LPA may issue a temporary stop notice which is effective for 56 days (England) (28 days Wales). This gives the LPA time to investigate before deciding on enforcement action.
explain a breach of condition notice
- Similar to EN but specifically where the breach involves a condition attached to an existing PP.
who can appeal a breach of condition notice?
- There is no right of appeal
explain an injunction
- Used for actual or apprehended serious breach (rare). LPA would need to show an inj. is necessary and appropriate in the circumstances.
what are building regulations?
- Building regs focus on health and safety, materials, construction methods
what is building regulations control?
Building regulation control is the process of ensuring that building work complies with the minimum standards set by the English and Welsh Governments
re: building regulation control
what is the relationship between BRC and PP?
- BRC required in most instances, even if PP isn’t (i.e. for internal alterations)
re: building regulation control
what is the procedure to obtain this?
- Application made to local authority before starting the work
- Building control officer undertakes inspections to ensure compliance.
- Once complete, LA inspect and issue a certificate of compliance
re: building regulation control
when does the standard procedure not need to be adhered to?
there are self-certification schemes for some trades (i.e. plumbers, window fitters). If the workman is part of the scheme, they do not need to make an application to the LA, they self-certify their work and inform the LA on completion.
re: building regulation control
how can a buyer check the BRC?
- A buyer can check whether building regs have been followed i.e. local search CON29 will show whether any BRCs have been issued and enquiries can be made of the seller
re: building regulation control
what can a buyer do if there is no BRC?
o If BRC was not obtained, the buyer can ask the seller to obtain a regulation certificate from the LA. The certificate lists work required to bring the building up to standard
re: building regulation control
what are the potential consequences if there is no BRC?
- a lender may be reluctant to give a mortgage and may require a full structural survey
- enforcement action
re: building regulation control
what enforcement action may be taken?
- Prosecution
- Enforcement notice
- Injunctions
re: building regulation control
explain prosecution
LA can prosecute if building regulations haven’t been complied with. They must do so within 2 years of completion.
re: building regulation control
explain enforcement notice
requires owner to alter/remove the work if it doesn’t comply with the regs. Must be issued within 1 year.
re: building regulation control
explain injunctions
not time limited. Would be used if the work was unsafe.
what is a listed building?
- i.e. a building of special architectural or historical value subject to regulations
re: listed building
what are the grades and effect of this?
- 3 grades: I) exceptional interest; II) more than special interest; III) special
Higher the grade = harder to get consent
re: listed building
what does the listing include?
- The listing inc. the building; any object/structure fixed to the building; or any object/structure within the curtilage since 1948
re: listed building
when is listed building consent required?
- Listed building consent (and PP) is required to demolish, alter or extend
- Listed building consent may be needed even if PP isn’t (i.e. internal alteration)
re: listed building
what is the relationship between listed building consent and the GDPO?
- Some GDPO permitted developments do not apply to listed buildings
what are conservation areas?
- i.e. LPAs are obliged to designate areas which have special architectural/historic interest and their character or appearance means it should be preserved/enhanced for conservation
when will PP be required in a conservation area?
- Changes to a building within a CA may require PP that is not elsewhere
- Demolition (or substantial) will require PP
what is the position regarding trees in a conservation area?
- LPA must be given 6 week’s notice of proposed work to a tree in a CA to determine if / how the work should take place
