Property Practice 2 - Planning Flashcards
(20 cards)
Development
Statutory definition in s57(1) Town and Country Planning Act 1990 states that planning permission is required for carrying out any development of land. Development defined as the carrying out of any BEMO (building, engineering, mining or other operations) and any material change of use.
Matters that do not constitute development
Carrying out of maintenance, improvement or other alteration of any building or works which affect only the interior of the building, or do not materially affect the external appearance of a building.
In addition, some changes of use are excluded from the definition of development and so do not require planning permission - s55 excludes a change of use within the same class of use as specified in the Use Classes Order.
Use Classes Order in England
B2 - general industrial
B3 - storage and distribution
C - residential uses: hotels (C1) dwelling houses (C3) houses in multiple occupation (C4)
E - commercial, business and service
F - local community and learning
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 operational or administrative functions and research and development.
Wales Classes of Uses
A - shops (A1), financial and professional services (A2), food and drink (A3)
B - business (B1), general industrial (B2), storage and distribution (B8)
C - residential uses: hotel (C1), dwelling houses (C3), homes in multiple occupation (C4), dwelling houses not sole or main residence (C5), short term lets (C6).
D - non-residential institutions (D1), assembly and leisure (D2).
Sui Generis uses
These are uses which could potentially have adverse effects on their locality.
Changes to and from sui generis uses (classes of their own) will always require planning permission.
E.g. entertainment establishments (bingo halls, cinemas etc), drinking establishments (pubs etc), hot food takeaways (sale of hot food for consumption off the premises).
Effect of planning permission
Usually states that it has to be implemented within a certain time period and will lapse if not done before that time.
Usually 3 years in England and 5 years in Wales.
Planning permission does not usually state a time limit in which the authorised development has to be completed by but if the Local Planning Authority (LPA) decides that completion will not take place within a reasonable time, it can serve a completion notice stating that the permission will cease to have effect if completion has not taken place by the expiration period stated in the notice (rare).
Development that does not require express planning permission
Sometimes development within s55 is automatically granted and therefore no need to obtain planning permission.
Permitted development rights are set out in the Town and Country Planning (General Permitted Development) Order 2015. In Wales it is the GPDO 1995.
Common categories in the GPDO are developments within the curtilage of a dwelling house and minor operations. Also, between the same class uses and from certain sui generis are automatic.
It is possible for the Secretary of State in charge of Town and Planning or the LPA to exclude the effect of the relevant GPDO by issuing an Article 4 Direction. So this should be checked by a solicitor - enquiries to the LPA will reveal this.
In cases of doubt, it is possible to apply for a Certificate of Lawfulness of Proposed Use or Development under s192 TCPA 1990.
An application to the LPA before works are commenced, specifying the proposed works or change. The LPA must issue a certificate if satisfied the proposals do not constitute development or would be granted permission as development under GPDO, otherwise must refuse the application.
What does the LPA do prior to taking action, when they want to find out if there has been a breach?
The LPA can exercise a right of entry to the property or serve a planning contravention notice which requires the recipient to provide information about operations, use, or activities being carried out on the land and any matter relating to the conditions attached to planning permission.
Enforcement notice
Can be issued when it appears to the LPA that there has been a breach of any type of planning control and it is expedient issue the notice having regard to its planning polices for the area.
Must be served on the owner, occupier and any other person with an interest in the land (e.g. mortgagee) and will become effective 28 days after service.
Must specify the alleged breach, and the steps taken or activities to be discontinued, in order to remedy the breach and the timescale for this.
Possible for anyone with an interest in the land to appeal.
Enforcement Warning Notice
In Wales the LPA can serve an enforcement warning notice where it appears to the LPA that there has been a breach of planning control and there is a reasonable prospect that planning permission would be granted if an application was made. Warns that further enforcement action may be taken if an application not made within a specified time period.
In England, LPA can serve an enforcement warning notice when it appears that there has been a breach in planning control.
Stop Notice
An enforcement notice cannot become effective until 28 days after it has been served and its effect is suspended if the recipient appeals it.
LPA can use a stop notice to bring activities in breach of planning control to an end before the enforcement notice takes effect.
A stop notice cannot be used as an enforcement method in its own right - an enforcement notice must be served first.
However, an LPA can serve a temporary stop notice effective for 28 days only, which gives time for further investigation.
Breach of condition notice
Similar to an enforcement notice however can only be served where the breach of planning control is a breach of a condition attached to a planning permission.
Injunction
LPA can apply to court for an injunction to restrain an actual or apprehended breach of planning control.
Discretionary remedy.
Time Limits
In England, the LPA must take enforcement action within 10 years of the alleged breach. However, for breaches involving operations development or change in use to a single dwelling house that took place before 25 April 2024, the time limit is 4 years from the breach.
In Wales, its 10 years.
LPA can apply to a Ms’ Court for a planning enforcement order to enable enforcement action to be taken when statutory time limits have expired and the breach of planning control has been concealed.
Liability
Failure to comply is a criminal offence punishable by fine.
Current owner is the one held responsible.
Building Regulation Control
Following an application to the building control authority for building regulation consent, the work will be inspected by a building control officer. After the final inspection, he will issue a certificate of compliance.
Prosecuting for breach of building regulations control
In Wales, can prosecute for a breach within 2 years of the offence.
In England, there are now no time limits.
Can serve an enforcement notice requiring the work to be altered or removed.
In Wales, an enforcement notice must be served within 1 year of completion of work.
In England, it is 10 years within completion of the work.
They can also take out injunctions without time limits if the work is unsafe.
Regularisation certificate
If consent not granted, a B can ask a S to obtain a regularisation certificate from the building control authority - this will say all the work required to bring the required building up to standard.
Alternatively for buyers, they can get insurance but this will only cover the cost of compliance should the building control authority bring enforcement proceedings, not the cost of any personal injury or business interruption caused by a defective building.
Listed buildings
These require listed building consent to demolish, alter or extend, sometimes even if no planning permission is required.
One that has special architectural or historic interest by the relevant government minister - Department for Culture, Media and Sport & Welsh Ministers and Cadw.
Conversation areas
All the features within such an area, listed or otherwise, are recognised as part of its character making it more difficult to make changes to such property.
