The government has recently introduced a number of amendments affecting permitted development rights. Anna Russell-Knee outlines the changes

Deemed planning permission is planning permission granted by parliament for certain minor forms of operational development and material changes of use. This is generally known as permitted development (PD). PD rights exist because it is considered by parliament that, as a general rule, such development will not cause significant amenity problems for others, and so will be acceptable in planning terms.

Deemed permission (as opposed to express permission) is granted by virtue of article 3 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (the GPDO). Article 3 grants planning permission for all those classes of development that are listed within schedule 2, which in turn contains 19 separate parts, each of which contains a number of classes. Where deemed permission exists, express planning permission is not necessary, unless PD rights have been removed (see below).

The new restrictions ensure that any incremental extensions cumulatively exceeding the stated limitations in class A do not benefit from permitted development

The government has recently introduced a number of amendments to the GPDO, as outlined below.

Part 1 of schedule 2 – Householder

Part 1 of schedule 2 to the GPDO allows certain enlargements, improvements, alterations and additions to a dwellinghouse and the area around it. It covers, for example, the installation of dormer windows or the carrying out of a loft conversion, and it allows for the erection of buildings within the ‘curtilage’ (garden) of a dwellinghouse, if those buildings are incidental to the residential use of the dwelling. If the development meets the criteria and does not exceed the limitations within part 1, it benefits from deemed planning permission.

Part 1 is one of the most commonly-referred to parts of the GPDO.

Class A of part 1 covers enlargement, improvement or alterations to a house, such as rear or side extensions, as well as general alterations such as new windows and doors.

Extensions on extensions

A recent amendment to the GPDO in relation to building extensions onto existing extensions came as a result of the controversial judgment in Hilton v Secretary of State for Communities and Local Government (CO/309/2016). The judge in this case determined that the term ‘enlarged part’ refers only to the development proposed under class A (as opposed to the ‘enlarged part’ comprising the sum total of the existing extension and the proposed extension together). Consequently, existing extensions to dwellings could be further enlarged under class A, creating a quantum of development that would exceed what would be permitted had the development been completed in one go (and where an express planning application would have been necessary, allowing the local planning authority (LPA) to retain some control over the development).

Naturally, this judgment was good news for householders who wished to develop their property by creating a large rear extension. Provided they extended their property in a piecemeal nature (so that each new extension met the PD criteria within class A), they could have ultimately a much larger rear extension than they could have achieved if all the works were carried out at one time – because if had they done the latter, the proposed / overall extension would not have met the criteria within class A.

In order to address this loophole, new paragraph (ja) within class A, introduced in April 2017, stipulates that the extension of an existing extension would not benefit from PD if ‘any total enlargement (being the enlarged part together with any existing enlargement of the original dwellinghouse to which it will be joined) exceeds or would exceed the limits set out in sub-paragraphs (e) to (j)’. This means that both the new extension, and the total new cumulative extension need to meet the criteria in class A.

The government also published a new version of ‘Permitted Development Rights for Householders – Technical Guidance’, dated April 2017, replacing the 2016 version. The new technical guidance firms up the position to avoid any ambiguity. ‘Enlarged part of the house’ is defined as the enlargement that is proposed to be carried out under class A. And ‘total enlargement’ is defined as the proposed enlargement together with any existing enlargement of the original dwellinghouse to which it will be joined.

The technical guidance is a practical document, outlining (not-to-scale) drawings to illustrate various examples.

The new restrictions ensure that any incremental extensions cumulatively exceeding the stated limitations in class A do not benefit from PD, and would therefore need to be assessed through the express planning application process.

Basements: clearing up the ambiguity

Ambiguity always existed as to whether basement developments fall within the remit of class A, and whether they could therefore benefit from PD. It is clear that the GPDO was not drafted with basement developments in mind; there is no reference to basements or underground development in the GPDO itself. This means that the matter has always been left to interpretation, with developers seeking to shoehorn their basement developments into class A.

A level of ambiguity has been cleared up following the judgment in Eatherley v London Borough of Camden [2016] EWHC 3108 (Admin). Lawyers for Mr Eatherley filed judicial review proceedings against the LPA in respect of its decision to grant a certificate of lawful development (CLD) confirming that the proposed basement works would constitute PD. The claim was that the works included a ‘substantial engineering operation’, which could not possibly fall within class A (or within the GPDO generally).

It was held that whilst the basement development itself may fall within class A, the excavation works may not. The judge held that the planning committee had asked itself the wrong question and that the LPA had therefore misdirected itself; the committee should have asked itself whether the excavation works comprised a ‘separate activity of substance’ – if they had, express permission would have been required for those separate works. A planning application for the excavation works would allow the LPA to assess the works on their planning merits (including the impact on the amenity of others, and on the surrounding area). Most basement developments (as opposed to conversions) will require excavation works, and those works will generally constitute a separate activity of substance, and therefore require permission.

While Eatherley has redefined interpretation of basement developments, the GPDO is yet to be amended to reflect this new position. Currently, there is still no reference to basements in the GPDO – a lacuna that will no doubt be addressed by parliament in due course.

The current thinking (and advice in the government’s Planning Practice Guidance (PPG)) is that the conversion of an existing residential cellar or basement into a living space will, in most cases, be unlikely to require planning permission, unless:

  • it is a separate unit
  • the usage is significantly changed, or
  • a light well is added (altering the external appearance of the property).

In summary, major excavation works to create a new basement are unlikely to fall within class A, and will therefore require express planning permission.

Part 3 of schedule 2 – Changes of use

Under part 3, subject to certain criteria being met, PD is granted for some material changes of use, most of which are classified in the Use Classes Order 1987. Two new important classes, PA and Q, have recently been announced.

A ‘prior approval’ process in respect of these new changes of use affords LPAs retention of some control over these forms of development (changes of use). The procedure (outlined in ‘paragraph W’ of the GPDO) is different from a full planning application; it is intended to be a light-touch approach to controlling PD. The applicant is required to submit a supporting statement detailing the existing use, the proposed use and any proposed accompanying works. The applicant must demonstrate that the proposal meets the criteria in the relevant class. The LPA can refuse an application in certain circumstances if the criteria are not met.

While the Eatherley judgment has redefined interpretation of basement developments, the GPDO is yet to be amended to reflect this new position. Currently, there is still no reference to basements in the GPDO – this will no doubt be addressed by parliament in due course

Class PA

The very new class PA (which is not yet in force) permits ‘development consisting of a change of use of a building and any land within its curtilage from a use falling within Class B1(c) (light industrial) of the Schedule to the Use Classes Order to a use falling within Class C3 (dwellinghouse) of that Schedule’.

The maximum floor space that can be converted under this class is 500 square metres.

This is a temporary PD right, in force from 30 September 2017 to 1 October 2020, intended to help increase the housing supply across the country – an issue addressed in the housing white paper published earlier this year.

To benefit from PD under class PA, the development must comply with the criteria within PA.1 and then be assessed under PA.2, through the prior approval process.

Class Q

This relatively new class, introduced in 2015, permits development consisting of:

‘a) a change of use of a building and any land within its curtilage from a use as an agricultural building to a use falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order; and

b) building operations reasonably necessary to convert the building referred to in paragraph (a) to a use falling within Class C3 (dwellinghouses) of that Schedule.’

This class is also a temporary PD right, in force until March 2023, with the purpose of making use of redundant agricultural buildings as another way to address the housing supply shortage in England and Wales.

The development must meet the criteria in Q1, and then fulfil the conditions in Q2, through the prior approval process.

Fundamentally, to benefit from class Q, the development must be a ‘conversion’ rather than a ‘rebuild’ (see Hibbitt v Secretary of State for Communities and Local Government [2016] EWHC 2853 (Admin)).

Paragraph 105 of the National Planning Practice Guidance (NPPG) states that the PD right under class Q ‘assumes that the agricultural building is capable of functioning as a dwelling’. It further states that: ‘It is not the intention of the permitted development right to include the construction of new structural elements for the building. Therefore, it is only where the existing building is structurally strong enough to take the loading which comes from the external works to provide for residential use that the building would be considered to have the permitted development right.’

Professionally-drafted structural appraisals and/or construction method statements are recommended in the prior approval process to assist in showing the LPA that the development is genuinely a conversion as opposed to a fresh build.

Removal of PD rights

PD can be enjoyed by all householders (and developers generally) unless that PD right has been removed by the LPA.

In respect of new developments (operations and/or uses), the LPA may, if justified in planning terms, impose a planning condition removing PD rights. This will be lawful as long as the legal tests for imposing conditions are adhered to.

Where the development is already existing, the LPA may remove PD rights by making an article 4 direction.

Either way, PD can be removed in respect of one property, a group of properties, or a wider area such as a conservation area. An article 4 direction will state the specific classes / parts of PD that are prohibited.

Where PD has been removed, either by condition or by an article 4 direction, this does not necessarily prevent the development being carried out altogether; it simply means that the development will need express planning permission. For example, several LPAs are issuing article 4 directions across their borough / district removing PD rights for basement developments, to overcome any ambiguity in the interpretation of class A (as outlined above), and also due to the lengthy disruption caused by basement developments in residential areas – although this does not mean that basement developments are impossible to achieve.

Before advising a client in respect of undertaking any development or purchasing a property, checks should be undertaken with the LPA to determine whether PD has been removed.

Other Controls

It is also important to remember that planning permission (express or PD) does not negate the need to obtain other permissions or consents such as listed building consent, building regulations approval and/or awards under the Party Wall Act 1996.