The Importance of Planning Permission
Paralegal, Nicola Newton, covers the when, what and why’s of planning permission…
A recent news headline shows the importance of planning permission and costly impact on being caught out by local planning authorities. The article discussed how a grandmother had spent £11,000 on adding pillars, gates and a canopy to her house only to be told by her local council that she must now remove them otherwise face court action.
When is planning permission required?
Planning permission is required for the carrying out of any development of land according to s57(1) of the Town and Country Planning Act 1990 (TCPA 1990). Under this Act, development is defined as being either; the carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change in the use of any buildings or other land. It is clearly a wide definition and covers a lot of works so as well as applying to the local planning authorities for permission, some development is deemed as permitted under development orders, such as the Town and Country Planning (General Permitted Development) (England) Order 2015. This Order is effectively a blanket permission for certain kinds of works or changes of use meaning no prior formal application is required. Such permitted developments can include small extensions or alterations of a dwelling house, the erection or construction of a porch, installation or replacement of chimneys, the erection, construction or alteration of a gate or fence or exterior painting. However, there are a number of conditions attached to these permitted developments so it is vital to carry out research and speak to planning specialists.
If an application is required to the local planning authorities then there are two types:-
1. Outline planning permission seeks to establish whether the scale and nature of the proposed development is acceptable. If outline consent is granted it may be subject to reserved matters and approval of these matters must be obtained before any work can commence and in any event no later than 3 years of the date outline consent was granted and the work itself must have started no later than 2 years after the final approval of the last matter to be approved.
2. Alternatively, a full planning application may be made which includes all the necessary details to enable the development to proceed once planning permission has been granted. Full planning permission is usually granted subject to a condition requiring the development to start within a specified time period, in England this is usually 3 years from the date of the permission granted. If development has not started and the permission expires then a new permission will need to be obtained. If works have started but remain only partially complete then the local planning authority can serve a Completion Notice which threatens to withdraw planning permission.
Planning permission may be granted retrospectively for works already carried out before the date of the planning application, however, it is recommended to always seek prior approval and not risk being required to pull down works already carried out.
Who benefits from a planning permission?
It is important to note that generally planning permission is granted for the benefit of the land and for all persons for the time being interested in the land and not necessarily just for the applicant.
Breach of planning control
A breach occurs if development requiring permission is carried out without obtaining planning permission or a condition or limitation attached to a permission is not complied with. A local planning authority must decide whether or not to take enforcement action. Enforcement is discretionary and there is no obligation on the planning authority to do so. They consider whether the breach unacceptably affects public amenity or the existing use of land, whether it is in the public interest, personal circumstances of the person in breach such as their health and welfare and also human rights.
What action might the planning authority take?
The planning authority will most commonly issue an Enforcement Notice requiring steps to be taken within a specified time period. Such a notice cannot be issued where there is an anticipated breach, in those instances a court injunction should be applied for. Generally, planning enforcement action must be taken within 4 or 10 years, depending on the breach. No planning enforcement can be taken after 4 years if the breach relates to:
building, engineering, mining or other operations in, on, over or under the land. The four year period starts when the operations were substantially completed.
a change of use of any building or part of building to use as a single dwelling house.
No planning enforcement action can be taken after 10 years, starting with the date of the breach, in respect of all other breaches of planning control including:
material change of use (other than change of use to a single dwelling house).
breach of condition.
However, there are instances where authorities can take action outside of these time limits, for example;
where a planning enforcement notice has been issued, a breach of condition can be served.
where action has been taken in the previous four years, a further enforcement notice or breach of condition can be served.
where a breach has been concealed the authorities can apply to a Magistrates Court for a planning enforcement order outside of the statutory time limits.
for listed buildings control can be enforced against an owner no matter when the breaches were committed and it can even be a criminal offence to carry out works to a listed building without obtaining listed building consent, although current owners cannot be prosecuted for works carried out by previous owners.
The enforcement notice must be served on the land owner, occupier and any other persons with an interest in the property.
There is a right to appeal an enforcement notice to the Secretary of State which suspends the enforcement notice enabling the alleged unauthorised works or use to continue without penalty pending determination of the appeal by the Secretary of State. There are a number of grounds to appeal however, there is a time limit and any appeal must be made prior to the date the enforcement notice comes into effect, this date will be specified on the notice and will be at least 28 days after service of the notice.
Failure to comply with an enforcement notice is a criminal offence and the offender is liable to pay an unlimited fine.
The planning authority may wish to take urgent action and they can do this by also serving a Stop Notice which prohibits almost immediately the carrying out of any specified activity in respect of which an enforcement notice has been served. There is no right to appeal this type of notice.
Where unauthorised activity relates to a breach of condition attached to a permission then the planning authority can serve a Breach of Condition Notice which specifies the recipient to remedy the breach of condition within a specified time period. Like with a Stop Notice there is no right of appeal against a Breach of Condition Notice.
Where the planning authority anticipates a breach of planning then they may apply to a magistrate’s court for an injunction to prevent an actual or apprehended breach and they may apply for this whether or not it has already used other enforcement mechanisms. Failing to comply with terms of an injunction can result in the person being in contempt of court and can even risk imprisonment.
Planning control is a subject to be taken seriously. If you are selling property, be sure to establish planning control has been complied with in all respects and if not be in a position to explain any irregularities and expect to bear the cost of correcting such, for example by putting in place indemnity insurance to protect buyers of your property. Buyers must be sure to make all necessary enquiries to establish whether planning has been complied with and whether any enforcement action has been taken or is pending because remember planning benefits the land and you may end up suffering as a consequence of the seller being in breach of planning.