Planning Permission and Building Regulations

Question 1

When is planning permission needed?

Answer 1

Planning permission is needed whenever there is a development on land, unless it falls within certain exceptions such as:
- building works that only affect the interior of the building; or
- building works that do not materially affect the external appearance of the building; or
- changes of use that are within the same use class

Question 2

What is a development for purposes of planning permission?

Answer 2

Development means carrying out of certain building works on land or a material change of use of the land.

Question 3

What are use classes?

Answer 3

Defined in the Town and Country Planning (Use Classes Order) 1987

• use classes are grouped by latter and subdivided by letter or number
• a change from one use class to another requires planning permission
• some uses are sui generis meaning they do not belong to a use class - meaning any change to or from that use or to a different sui generis requires planning permission

Question 4

Use classes

Answer 4

B2 - General industrial
C1 - Hotels
C2 - Residential institutions
C3 - Dwelling houses
E - Commercial, business and service
F1 - Learning and non-residential institutions
F2 - Local community

Sui generis (not a use class): examples:
- theatres
- amusement arcardes
- launderettes
- fuel stations
- pubs and nightclubs
- takeaways
- concert halls

Question 5

Permitted development

Answer 5

The Town and Country Planning (General Permitted Development) Order 2015 (GPDO 2015) allows certain development without planning permission. Operates like a general planning permission for certain developments:

e.g. decking is permitted in a residential garden providing it is no more than 30cm above the ground, covers no more than half the garden area and is to the back of the house.

Question 6

Listed buildings

Answer 6

Listed buildings are of special architectural or historic interest:

Grade I listed buildings are buildings of exceptional interest (Tower Bridge)

Grade II* listed are particularly important buildings of more than special interest (eg Battersea Power Station)

Grade II listed are buildings are of special interest (Adelphi Hotel, Liverpool)

Question 7

Listed building consent

Answer 7

Needed to demolish, alter or extend a listed building.

Separate requirement from planning permission and may be necessary even where planning permission isn’t such as internal alterations.

GPDO 2015 and 1995 do not apply to listed buildings.

Question 8

What are conservation areas?

Answer 8

Areas of special historical or architectural interest, the character or appearance of which it is desirable to preserve or enhance.

Local authority is under a duty to designate conservation areas within its locality.

Question 9

Effects of a conservation area

Answer 9

• The GPDO will be restricted so changes to external appearance may require planning permission (restricted by what are called article 4 directions)
• In England, planning permission is needed to demolish an unlisted building within a conservation area
• Consent is needed to cut back or cut down trees

Question 10

Building regulations

Answer 10

These are separate from planning permission and should not be confused.

Building Act 1984 creates a statutory system under which building regulations are creates and adapted using secondary legislation.

Building regulations regulate issues that affect health and safety, such as the structural integrity of the building, fire escape, water supply, stairways etc.

Question 11

What do building regulations apply to?

Answer 11

Building Regulations 2010 apply to “building work” which includes:

• erection or extension of a building
• installation or extension of a service or fitting that is controlled under the Building Regulations (e.g. windows, boilers)
• work required where there is a material change of use of the whole building

Question 12

Building regulations - consent

Answer 12

Before carrying out work covered by the regulations - building regulations consent is needed.

Note: this is separate from planning permission and it may be some works require both pp and br, and some will require one and not the other.

Question 13

Building regulations - approval

Answer 13

The work may be inspected by a building control inspector who will issue a:
— certificate of compliance –
if the work is in accordance with building regulations.

Some types of work have self-certification schemes e.g. a window installer registered with the Fensa will certify to Fensa that the windows comply with building regulations - Fensa then lodges a certificate with the local authority. Once lodged it will appear in the local search.

Other work by self certification schemes: roof replacement, gas boiler, cavity walls

Question 14

Breach of planning permission

Answer 14

Breach of planning permission control is when:
1. development has taken place without planning permission; or
2. a condition or limitation of planning permission has been breached

The local authority have different options for enforcement, but there are time limits within which they must use them.

A buyer’s solicitor must check for breaches of planning control, as enforcement is against the current land owner not the person who caused the breach.

Question 15

Planning permission enforcement options

Answer 15

• Enforcement notice
• Stop notice
• Breach of condition notice
• Injunction

Question 16

Planning permission enforcement: enforcement notice

Answer 16

Local authority gives 28 days’ notice that:
- land must be restored to condition it was in before unauthorised development; or
- comply with any conditions or limitations imposed by planning permission

After 28 days the land owner may be fined and the local authority can enter the land to carry out the work and recover its expenses from the land owner.

Question 17

Planning permission enforcement: Stop Notice

Answer 17

The Local authority can serve a stop notice only after serving an enforcement notice.

This requires that a specified activity (e.g. unauthorised use) stop immediately.

Cannot prohibit use a dwelling house or any activity that has been carried out for more than four years.

Question 18

Planning permission enforcement: breach of condition notice

Answer 18

Similar to an enforcement notice but only concerned with breach of conditions or limitations to planning permission.

Question 19

Planning permission enforcement: Injunction

Answer 19

Local authority can apply to court for an injunction, but it is discretionary and the local authority needs to show good reason.

Question 20

Enforcement time limits for planning permission: before 25 April 2024

Answer 20

For work completed before 25 April 2024, the local authority must take enforcement action (whichever type it is) within the following time limits:

4 years:
- Building works - starting with the date on which the building works were “substantially completed”
- Change of use to single dwelling house - starts with the date the use was begun

10 years:
- Other changes of use
- Breach of planning condition

Question 21

Enforcement time limits for planning permission on or after 25 April 2024

Answer 21

Limitation is now 10 years for all planning breaches.

Question 22

Building regulation enforcement options

Answer 22

• Prosecution (unlimited fines)
• Enforcement notice
• Injunction

Question 23

Building regulation enforcement

Answer 23

Old time limits (still apply in wales) pre-25 April 2024:

Prosecution: 6 months from discovery and max two years after completion

Enforcement notice: one year

Injunction: no limit if the work is unsafe

New time limits:
- Prosecution: unlimited
- Enforcement notice: ten years
- Injunction: no limit if unsafe

Question 24

Buyer’s solicitor implications

Answer 24

Buyer’s solicitor should should for compliance with planning law and building regulations.

• Local search: for planning permissions, building regulation consents and approvals, enforcement action, GPDO and Article 4 direction, Conservation area, listed building status
• Seller’s replies to enquiries: for work done or change of use that may have required planning permission or building regulation approval
• Buyer’s survey: survey may reveal work that is not mentioned in replies to enquires

If a breach is discovered the the buyer’s solicitor will need to advise on the options available

Question 25

Options available to a buyer on discovering breach of planning permission or building regulations

Answer 25

1. Invite seller to regularise matter before completion but removing/altering work or further paperwork. May need to be a term of the contract on exchange.

Seller may be able to obtain:
- retrospective planning permission for development
- regularisation certificate for works that did not have building regulations approval but otherwise apply

2. Obtain indemnity insurance (usually at seller’s expense) for breaches of planning or building regulation. However only covers financial loss for enforcement - for breaches of building regs, buyer should be advised of health and safety risks and the policy will not cover claims for personal injury or death.
3. Withdraw from transaction - drastic and most cases not necessary