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Development in the Law of Permitted Developments

About The Author

Former Author (Assistant Editor)

Author is a King's College London Law graduate, currently working as a corporate paralegal for a firm based in South West England. Author is due to begin his BPTC at the University of Law in September 2015, having attained a scholarship from Middle Temple.

In this year’s Budget speech, George Osborne, the Chancellor of the Exchequer, announced that there would be a review of permitted development rights and an introduction of a new system to allow greater freedom to build and alter sites without the need for full planning permission. The government has followed a programme of liberalisation, with the latest changes taking effect on 5 April this year. Many developers and contractors initially welcomed the government’s liberalising agenda regarding planning, but concern is growing that planning is becoming a free-for-all and the coherence of our planning system is under threat. As highlighted in my previous article on the precarious position of the greenbelt in the UK, the UK is suffering from a chronic housing shortage and measures need to be taken to address this. However, I seriously question whether the government’s current strategy is coherent when viewed against the overall objectives of our planning system. This article will focus on the law for England and Wales that is covered by the Town and Country Planning Act 1990 (TCPA 1990).

Planning Permission – What, how and why? 

Under TCPA 1990, planning permission must be sought for the carrying out on land of any development, which is defined in s. 55(1) as the ‘carrying out of building, engineering, mining or other operations, in, on, over or under the land or the making of any material change in the use of any buildings or other land’. As is clear, this definition is extremely broad and is designed to capture almost any activity. This definition is given such broad scope for two important reasons, firstly to ensure that the local planning authorities and the government are aware of how land is used across England so that the most efficient use can be made of the land available but secondly, it ensures that proper building regulations are adhered to and any developments are suitable for their intended use.

Permission is sought by submitting an application to the local planning authority (LPA) enclosing details of the proposed development, all required permissions and documents of title. These plans are often drawn up professionally but can be done by individuals if they are able to comply with the requirements. Once the application is lodged, the LPA must make a determination based on whether the proposed development complies with the requirements and objectives of the local plan and the wider National Planning Policy Framework (NPPF). These plans and frameworks set out objectives to be achieved through the planning system as a whole and ensure that there is a consistent decision-making base both at local and national level.

There are avenues of appeal if permission is refused, and LPAs are also given the power to impose conditions on grant under s. 106 TCPA 1990. These conditions will depend upon the type of development to be undertaken, typically involving large retail or residential, where the developer will be required to pay a certain amount as a 'community infrastructure levy' or commit to providing certain amenities in the local area.

However, the definition of ‘development’ is subject to certain exemptions under the secondary legislation of the Town and Country Planning (Use Classes) Order 1987 and the Town and Country Planning (General Permitted Development) Order 1995 (hereinafter the GPDO 1995). This is the area which the government have targeted as ripe for reform in order to remove controls on development and rejuvenate house building and the construction industry in England and Wales.

It is essential that the government are able to monitor development across England and Wales to ensure that there is a coherent network of infrastructure to cope with the demands that can come with population changes or changes in industry in certain areas. This coherence is under threat because of the steady increase of exemptions from the general requirement for planning permission. I believe that the government should reconsider their position and whether the ‘light touch’ approach may be creating more problems than solutions.

General Permitted Developments

The planning system of England and Wales follows the class system whereby certain developments are designated to a particular class and subject to certain controls when initial planning permission is sought. These classes range from minor residential through to heavy industrial and if remaining within these classes it is unlikely that a developer will require fresh planning permission due to the exemption in s. 55(2)(f) TCPA 1990.

Further to this, an individual or developer will not require planning permission if the proposed building modification is a change of class which is provided for within the GDPO 1995. As amended several times since coming into force, the GDPO 1995 sets out the circumstances in which developments will not require planning permission when changing from one class of development to another and this list has been steadily growing under the Coalition government.

The liberalising agenda of this government is clearly an attempt to rejuvenate the construction industry, but as noted by Gerry Hughes of GVA, one of the largest commercial property advisers in the United Kingdom, ‘a key risk [of the liberalising agenda] is that this could be growth at the expense of quality and design and future moves to further free up permitted development rights only act to heighten this risk’. This risk is apparent because permitted developments are not regulated by the local council and thus are not subject to any inspections or conditions upon their development. 

Agricultural buildings – farmers under threat?

One of the more controversial recent changes to permitted development rights has been the introduction of the right to convert agricultural buildings into dwelling houses (class C3) without the need for planning permission. The Landworkers’ Alliance have come out in staunch objection to this change and their fears are indicative of how coherence is required when considering modification to the planning system in this country. Although allowing one new class as a permitted development may seem to be a minor alteration when viewed against the backdrop of the entire planning system, such a change may have major long-term repercussions.

In their response to the consultation paper issued by the government titled ‘Greater Flexibilities for Change of Use’ the Landworkers Alliance’s highlight a growing fear that the long-term future of farming within the UK is under real threat. The Alliance note that there are only modest financial returns usually available through farming and it would be a natural response of many landowners to cash in on their land through converting old agricultural buildings into residential due to the vastly higher prices paid for residential land compared to agricultural. The government has already noted in their Future of Farming Review Report that the difficulty of gaining access to land is one of the key impediments for new entrants, yet they have loosened the controls over agricultural land through the increase in permitted development rights. With the average age of farmers in the United Kingdom increasing steadily and less and less young people taking up roles within agriculture, surely the government should be doing more to protect agricultural land rather than encouraging its sell-off into residential. Of course there is a need to increase housing demand, but as noted in my previous article, housing needs are greatest in our urban spaces rather than allowing developments to sprawl out into the countryside.

The Alliance also made an important observation that the over-liberalisation of our planning system is conflicting with the key objective of the NPPF: sustainable development. Specific reference is made within the NPPF for the need to avoid isolated new homes in the countryside (paragraph 55) and patterns of development should seek to reduce greenhouse gas emissions by facilitating the use of sustainable transport. If we allow more agricultural land to be converted into residential it will only increase the need for a more extensive transport infrastructure which will be to the detriment of the environment and will also require significant investment from the government.

The changes that have been brought in to allow the conversion of agricultural land to residential appear to me to be one step too far and not enough consideration has been given to the long-term impact of these proposals. Another element which the government should consider is that it will be extremely difficult for any land which was previously devoted to agriculture to be converted back to farmland from residential, and the dwindling amount of land available for agriculture will only make the united Kingdom more reliant on importing food.

Warehouse to residential

Another consultation issued by the government this year would see the introduction of a new general permitted development of converting light industrial buildings to residential, with a developer only requiring the council to consider the impacts in terms of flooding risk, transport, contamination and noise in a summary review. Although this may seem initially to be still quite substantial control, these reviews are far more limited than the rigour expected within the traditional planning framework, where the development is assessed holistically rather than merely confining a review to certain areas. The Planning Officers Society’s response to the consultation, as reported by Planning Resource, said this suggestion was ‘entirely inappropriate. If this were to go ahead, the prior approvals would result in low-quality residential being provided in an industrial area.’ Again, this potential change clearly shows that coherence is one of the most important tenets of a successful planning system and the constant emphasis on liberalisation is seriously undermining this. The government has consistently loosened our planning framework in the last four years and I believe that there is a real need to stop any further relaxation to allow time for the effects of these changes to be fully appreciated. Many representative bodies and organisations are coming out against these changes, most notably the National Housing Federation who have stated that these changes are ‘running the risk that inadequate accommodation will be provided’. It is notable that such an organisation would come out against these proposals when one of the major stated aims of the relaxation of controls is to alleviate our housing shortage.

Too far, too fast?

Although planning permission may be considered a burdensome process by some developers, and the need to solve our housing crisis requires innovative approaches, I seriously question whether the government is taking the correct approach. As highlighted by the example of the conversion of agricultural or light industrial buildings to residential, the removal of oversight by the local planning authority may have adverse long-term impacts which will be very difficult to reverse.

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Tagged: Environmental Law, Property Law

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