link to page 17 link to page 3 link to page 4 link to page 4 link to page 5 link to page 6 link to page 8 link to page 9 link to page 9 link to page 10 link to page 10 link to page 11 link to page 11 link to page 13 link to page 13 link to page 14 link to page 15 link to page 16 link to page 17 link to page 19 link to page 19 link to page 20 link to page 21 link to page 22 link to page 22 link to page 22 link to page 23 link to page 27 link to page 28 link to page 28
The General Permitted Development Order &
Prior Approval Appeals
This
What’s New since the Last Version
publication
Revised on
6 November 2018, with changes highlighted in yellow:
Paragraphs 107-115 in relation to demolition have been updated.
is
CONTENTS
frequently
Background ................................................................... 3
The Construction and Operation of the GPDO 2015 .............. 4
The Grant of Planning Permission .................................................. 4
updated.
The Effect of Planning Conditions ................................................... 5
Matters of Lawfulness................................................................... 6
Repeal, Re-Enactment, Revocation & Transitional Arrangements ....... 8
‘Article 4’ Directions ..................................................................... 9
Other Exceptions to PD................................................................. 9
Only
Interpretation .............................................................. 10
General ..................................................................................... 10
correct
Highway .................................................................................... 11
Dwellinghouse ............................................................................ 11
Curtilage ................................................................................... 13
Agriculture ................................................................................. 13
as
‘Agriculture’, ‘Agricultural land’ and ‘Agricultural Buildings’ ..................... 14
‘Agricultural Unit’ .............................................................................. 15
of:
Floorspace ................................................................................. 16
Demolition .................................................................................
10 17
Prior Approval Applications and Appeals ........................... 19
January
Introduction ............................................................................... 19
Prior Approval Appeals ................................................................ 20
Validity ...................................................................................... 21
Appeal Template......................................................................... 22
2018
Lawfulness ................................................................................. 22
Development Commenced ........................................................... 22
Failure to Comply with Other Limitations and Conditions .................. 23
Information Requirements and Failure to Determine Cases .............. 27
Additional Submissions ................................................................ 28
Consultation .............................................................................. 28
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link to page 29 link to page 29 link to page 29 link to page 30 link to page 30 link to page 30 link to page 33 link to page 33 link to page 34 link to page 35 link to page 35 link to page 36 link to page 36 link to page 37 link to page 37 link to page 37 link to page 40 link to page 40 link to page 44 link to page 55 link to page 69 link to page 71 link to page 74 link to page 77
Development Outside of the Prior Approval Application .................... 29
Matters under Appeal .................................................................. 29
National Planning Policy Framework .............................................. 29
The Development Plan ................................................................ 30
Contamination ............................................................................ 30
This
Flood Risk .................................................................................. 30
Formal Decision .......................................................................... 33
Conditi
publication ons ................................................................................. 33
Planning Obligations ................................................................... 34
Other Statutory Duties .................................................. 35
European Protected Habitats ........................................................ 35
European Protected Species ......................................................... 36
UK Protect
is ed Habitats and Species................................................ 36
Listed Buildings .......................................................................... 37
frequently
Conservation Areas ..................................................................... 37
Human Rights and the Public Sector Equality Duty .......................... 37
Annexe A – PD Rights subject to Prior Approval and the Prior
Approval Matters .......................................................... 40
updated.
Annexe B – Part 1: Curtilage of a Dwellinghouse ............... 44
Annexe C – Part 3: Changes of Use ................................. 55
Annexe D – Part 4: Temporary Buildings and Uses ............. 69
Annexe E – Part 6: Agriculture and Fo
Only restry ...................... 71
Annexe F – Prior Approval Appeals & Heritage ................... 74
Annexe G – Template (Part 1, Class A example)
correct ................ 77
as of: 10 January
2018
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Background
1
This training material applies to English casework only1.
2
S55(1) of th
e Town and Country Planning Act 1990 (the TCPA90) as
This
amended sets out the meaning of ‘development’, with clarifications,
exclusions and inclusions set out in s55(1A), s55(2) and s55(3).
publication
3
S58(1)(a) of the TCPA90 provides that planning permission may be
granted [for development] by a development order; s59(1) states that the
Secretary of State (SoS) shall by order provide for the granting of
planning permission. S60(1) specifies that permission granted by a
development order may be granted unconditionally or subject to
conditions and limitations as specified.
is
4
General [permitted] development orders and amending orders are
frequently
statutory instruments (SIs). The first GDO was made in 1948. In this
chapter, the term ‘Order’ is used to refer to any or all general [permitted]
development orders.
5
The Town and Country Planning (General Permitted Development)
(England) Order 2015 (GPDO 2015) is a development order passed by
updated.
Parliament through SI 2015/596, as secondary legislation to the TCPA90.
As with previous Orders, the GPDO 2015 grants planning permission for
certain classes of development, described as permitted development (PD).
6
Inspectors must determine prior approval appeals with regard to the
Order as in force at the date of the appeal decision, not as at the time of
Only
the LPA’s decision, if that was different, because previous relevant
provisions may have been revoked. Indeed, the LPA should determine
prior approval applications on the basis of legal and policy framework in
correct
force at the time of their decision, not the date of the application.
7
In enforcement appeals proceeding on ground (c) – whether the matter
alleged constitutes a breach of planning control – and where it is claimed
as
that the development is PD, it is necessary to look at the Order in force
when the development was begun;
Williams Le Roi v SSE & Salisbury DC
of:
[1993] JPL 1033. The onus is on the appellant to show when that was.
10
8
If a breach was found at that time, but the development would meet the
PD requirements of a subsequent amended or replacement Order, the
January
position would not change. This is because, as noted below, the Order
does not grant retrospective planning permission. The appellant might
have a fallback position of undertaking the same development as PD, but
this consideration would only be relevant to other grounds of appeal2.
2018
9
Similarly, lawful development certificate (LDC) appeals made under s191
of the TCPA90, on the basis that existing use or development is PD,
should be determined with regard to the Order as in force when the
1 PINS Wales produces separate material relating to Welsh legislation and policy.
2 Ground (a) – whether planning permission ought to be granted; (f) – whether the requirements of the
notice are excessive; and/or (g) – whether the period for compliance with the notice is reasonable
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link to page 43 link to page 54 link to page 68 link to page 70 link to page 39
development was carried out. LDC appeals made under s192, concerning
proposed use or development, should be determined with regard to the
Order as in force at the date of the application.
10 The Knowledge Library therefore contains these versions of the Order:
This
The
consolidated (up-to-date) GPDO 2015
publication
The
un-amended (pre-6 April 2016) version of the GPDO 2015
Amending orders to the GPDO 2015
The
current (up-to-date) GPDO 1995: as still in force in Wales, and with some
saved provisions for England
The
GPDO 1995 as current in England immediately prior to its replacement (i.e.
is
as on 14 April 2015)
frequently
11 It should be noted that some of the case law referred to in this chapter
pre-dates the current Order but should remain of general application.
12 S58-60 of the TCPA90 empower LPAs to make Local Development Orders
(LDOs) to grant planning permission for development not permitted by a
updated.
general [permitted] development order. While LDOs are rare, normally
being made only in respect of Enterprise or Employment Zones, it may be
necessary to know whether a LDO covers the appeal site.
13 Most GPDO 2015 casework relates to Article 3, Schedule 2, Parts 1, 3, 4
and 6; advice on these is set out in Annex
es B, C, D and E respectively.
Only
14 Advice on the provisions of and casework under Part 16 is set out
separately in the
Mobile Telecommunications chapter of the training
correct
manual. That chapter will be thus updated in due course to reflect the
changes to Class A of Part 16 from th
e Town and Country Planning
(General Permitted Development) (England) (Amendment) Order 2018.
as
The Construction and Operation of the GPDO 2015
of:
The Grant of Planning Permission
10
15 Article 3(1) of
the GPDO 2015 provides that, subject to the provisions of
the Order and Regulations 75-78 of th
e Conservation and Habitats and
January
Species Regulations 2017, planning permission is granted for the classes
of development described as permitted development in Schedule 2.
Planning permission was also granted via Article 3(1) in the GPDO 1995,
which will largely be relevant now only to enforcement and LDC appeals.
2018
16 Article 3(2) of the GPDO 2015 provides that any permission granted by
Article 3(1) is subject to any relevant exception, limitation or condition
specified in Schedule 2. Some classes of PD are conditional on a prior
approval procedure having been followed, and are listed i
n Annexe A.
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17 In paragraph 33
of Keenan v Woking BC & SSCLG [2017] EWCA Civ 438,
Lindblom LJ affirms that “crucially”, the grant of planning permission
made under the Order is made through the operation of Article 3(1) and
the provisions for PD in the relevant Class – but not through any
procedure to be followed under Article 3(2) or provisions for conditions in
This
the class3. The implications of this judgment are explained further below
in relation to prior approval applications and appeals.
publication
The Effect of Planning Conditions
18 Nothing in the GPDO 2015 permits any development contrary to any
condition on any express or deemed planning permission; Article 3(4).
Planning permissions granted under an Order may be taken away by
conditions imposed on an express grant of permission;
City of London v
SSE [1971] 23 P&CR 169.
is
frequently
19 Existing conditions which potentially invoke Article 3(4) should be
assessed based on their wording; the condition must go beyond specifying
the development for which permission is being granted and contain
‘something more’ which explicitly or implicitly restricts development.
20 When
imposing a condition to restrict PD rights, it is best practice to
updated.
construct the condition in clear terms, and refer specifically to the relevant
provisions of the Order and/
or Town and Country Planning (Use Classes)
Order 1987 as amended (UCO 1987)4. When
interpreting a condition, it
will be a question of fact as to whether it restricts PD rights or not.
21
In Dunnett Investments Ltd v SSCLG & East Dorset DC [2016] EWHC 534
Only
(Admin); [2017] EWCA Civ 192, a condition was imposed that: ‘This use
of this building shall be for purposes falling within Class B1 (Business) as
defined in the [UCO 1987], and for no other purpose whatsoever, without
correct
express planning consent from the [LPA] first being obtained’.
22 The High Court and then Court of Appeal (CoA) held that ‘express
planning consent from the LPA’ means a grant of permission by the LPA,
as
which it can only make on receipt of a planning application. Taken with
the phrase ‘
and for no other purpose whatsoever’ the condition excludes a
of:
grant of permission by the operation of statutory provision under the
Order. The second part of the condition was designed to and does prevent
10
the operation of the Order.
January
23 If a PD right is restricted by a condition on a previous permission, the
Inspector’s finding might be:
In order to benefit from any planning permission granted by Article 3 of the GPDO
2015, the development must not be contrary to any condition on an existing
2018
planning permission; Article 3(4). Here, condition [x] attached to planning
permission [y] restricts such development by …
3
Keenan concerned an appeal pertaining to the GPDO 1995 but is applicable to the GPDO 2015.
4 See
Carpet Decor (Guildford) v SSE [1981] JPL 806
; Dunoon Developments Ltd v SSE & Poole BC (1993)
65 P&CR 101; Rugby Football Union v SSTLR [2002] EWCA Civ 1169; Royal London Mutual Insurance Society
Ltd v SSCLG [2013] EWHC 3597
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The [development] is not permitted by the GPDO 2015. It is development for
which express planning permission is required, and that could only be granted on
application made to the local planning authority in the first instance.
24 Some PD rights are removed by conditions and limitations within Schedule
2 of th
e GPDO 2015; for example, Part 1, Class A, paragraph A.1(a)
This
provides that the enlargement, improvement or other alteration of a
dwellinghouse is not permitted if permission to use the dwellinghouse as
such
publication was granted by Part 3, Class M, N, P, PA or Q.
25 Where it appears that development could not be PD because of a condition
within the GPDO 2015, the Inspector’s findings might be:
In order to benefit from the provisions of [ref to relevant Part of Schedule 2] the
proposed [development] must comply with paragraph [insert relevant condition
is
or limitation]. In this case [explain in what way the development does not meet
the condition or limitation].
frequently
The development is not permitted by the GPDO 2015. It is development for which
express planning permission is required and that could only be granted on
application made to the local planning authority in the first instance.
26 Where these issues have not been raised by the parties, but nevertheless
updated.
it is clear from the evidence that a condition or a limitation in an Order
has been breached, the parties may well need to be given an opportunity
to make representations in the interests of natural justice.
Matters of Lawfulness
Only
27 Article 3(5) provides that the planning permissions granted by Schedule 2
of th
e GPDO 2015 do not apply if the building operation or use is unlawful.
This aims to prevent unlawful development from acquiring PD rights, so
correct
that, for example, an unlawful dwellinghouse could not be extended under
Part 1, Class A; or an unlawful office could not be changed to residential
use under Part 3, Class O.
28
as
It was held in
Evans v SSCLG [2014] EWHC 4111 (Admin) that, where the
word ‘building’ is defined for the purposes of an Order as including ‘part of
of:
a building’, the effect of Article 3(5) is that PD rights granted in respect of
a building shall not apply if the operations involved in the construction of
10
any part of that building are unlawful.
January
29 Under Part 4, Class A of the GPDO 2015, the provision of buildings,
moveable structures, works, plant or machinery required temporarily in
connection with and for the duration of operations being or to be carried
out is PD. Paragraph A.1(b), however, provides that development is not
permitted by Class A if planning permission is required but not granted or
2018
deemed to be granted for the operations.
30 Since PD rights apply to lawful operations and uses, this will include those
subject to a LDC or which are immune from enforcement action under
s171B
of the TCPA90. Under s191(6), lawfulness as specified in a LDC is
‘conclusively presumed’, unless there has been a subsequent breach of
planning control or other material change in circumstances.
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31 However, in
Arnold v SSCLG [2015] EWHC 1197 (Admin), works began to
a dwellinghouse following the grant of LDCs for proposed extensions – but
the works did not directly implement the LDCs, and few elements of the
original house remained. The High Court held that the parent dwelling
This
must be retained in order for the householder to benefit from the PD
rights relied upon. The rights assumed the continuing existence of the
original structure; if that was lost, so were the rights5.
publication
32 PD rights only apply when the development fully accords with the
limitations set out in the Order. Any claim of PD rights must be measured
against each of the sub-clauses of the relevant part of Schedule 2. If
development is commenced but any limitation is exceeded, the whole
development would be unlawful, not just the element in excess of PD
rights;
Garland v MHLG [1968] 20 P&CR 93.
is
frequently
33 Limitations to, for example, the size of development are expressed
precisely in the Order. There cannot be a
de minimis infringement. PD
rights cannot be claimed retrospectively by the removal of an element so
as to return the residual development to the permitted tolerance, as held
i
n R (oao Watts) v SSETR & Hammersmith and Fulham LBC [2002] JPL
1473, summarised in th
e Enforcement Case Law chapter.
updated.
34 An exception would be where there are clearly severable elements, such
as a ground floor extension and a loft conversion. In such cases, PD rights
may be claimed for one element or the other, if either on its own it meets
the provisions of the Order and the two elements were not or would not
be carried out as one development, as a matter of fact and degree.
Only
35 Where development is undertaken that is subject to a condition
in
Schedule 2 and the relevant Part and Class which requires the following of
correct
a prior approval procedure, and the notification to the LPA is not given,
the development will again be unlawful as a whole. Subject to the time
limits set out in s171B of the TCPA90, the LPA could enforce against
development without planning permission.
as
36 There is no provision for a retrospective grant of prior approval or to grant
of:
a LDC for existing development under s191 where the prior approval
procedure has not been followed. A LDC could not be granted for proposed
10
development under s192 if a prior approval condition has not been
complied with by the date of the application. A LDC may be granted under
January
s191 or s192 for PD which did or does not require prior approval.
37 Where development has commenced in accordance with the Order and
prior approval conditions, but then there is a failure to comply with other
conditions set out in Schedule 2 that have a ‘continuing effect’, the LPA
2018
could only enforce against a breach of a condition, just as it would enforce
against a failure to comply with a condition imposed on an express
planning permission6. This includes a breach of ‘temporary’ conditions.
5
Arnold went to the Court of Appeal, but without permission to appeal on this ground;
[2017] EWCA Civ 231
6
Clwyd v SSW [1982] JPL 696;
R v Elmbridge BC ex parte Oakimber [1992] JPL 48
; Whitley & Sons v SSW
[1992] 3 PLR 72
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38 PPG paragraph ref ID 13-041-20180222 states that a planning application
fee may be payable where development that would otherwise be PD
requires [express] planning permission. While this is largely a matter for
LPAs, it may be relevant to enforcement appeals where a fee is payable
This
for a deemed planning application.
Repeal, Re-Enactment, Revocation & Transitional Arrangements
publication
39 Under s17(2)(b) of th
e Interpretation Act 1978, where an Act repeals and
re-enacts a previous enactment, with or without modification, then in so
far as any subordinate legislation made under the enactment so repealed
could have been made under the provision re-enacted, it shall have effect
as if made under that provision – unless the contrary intention appears.
is
40 Thus, if development was permitted or granted prior approval under a
frequently
previous Order, and could be so under the Order as re-enacted, it shall be
treated as if permitted under the Order as re-enacted.
41 Case law has established that a planning permission granted by the Order
is ‘crystallised’ when the development begins or, in the case of prior
approval development, when the LPA has stated that prior approval is not
updated.
required – or failed to make a determination within the specified period
; R
(oao Orange Personal Communication Services Ltd & Ors) v Islington LBC
[2006] EWCA Civ 157.
42 Under s61D(1) of
the TCPA90, a development order may provide for the
completion of development if that was permitted by the Order but the
Only
permission is withdrawn [through revocation or amendment of the Order]
after the start but before the completion of the development. However,
s61D(2) provides that the permission granted by an Order is withdrawn
correct
where the Order is revoked or amended so as to cease to permit the
development, or materially change any condition or limitations.
43 Article 8(1), and Paragraphs 1 and 12 of Schedule 4 to th
e GPDO 2015
as
revoked the GPDO 19957. The GPDO 2015 made no provisions under s61D
in respect of development that was permitted and started but not
of:
completed. Nonetheless, development that was commenced in accordance
with the GPDO 1995 but not the GPDO 2015 can still be completed under
10
the terms of the withdrawn permission unless a completion notice is
served or discontinuance order made.
January
44 If works commence in accordance with the GPDO 1995, however, and a
LDC is sought under s192 for
proposed development, including the works
which have already been carried out and represent material operations
comprised in the development for the purposes of s56(2) of
the TCPA90,
2018
the appeal would need to be dismissed unless the development would also
be permitted under the current Order. This is because s192(2) provides
that the use or operations described in the application would be lawful
if
instituted or begun at the time of the application.
7 Except as specified in Article 8(2), which concerns a 2015 amendment to the GPDO 1995
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45 Similarly, prior approval cannot be granted for development which would
not be permitted under the GPDO 2015, even if it commenced in
accordance with the GPDO 1995, because the conditions requiring prior
notification must be complied with before development is begun.
This
‘Article 4’ Directions
46 Article 4(1) of the GPDO 2015 provides that, if the SoS or an LPA is
publication
satisfied that it is expedient that any development described in any Part,
Class or paragraph of Schedule 2, with exceptions for Part 17, should not
be carried out unless permission is granted on application, they may make
a direction that the permission granted by Article 3 does not apply to all
or any development of the Part, Class or paragraph in an area specified;
or any particular development falling within that part of the paragraph.
is
47 An ‘Article 4 Direction’ must be expressly made under Article 4(1). Article
frequently
4(2) provides that a Direction would not affect the carrying out of PD
within specified classes before the Direction comes into force; it would
neither affect the carrying out of prior approval development where the
prior approval date occurs before the Direction comes into force and the
development is completed within 3 years of the prior approval date.
updated.
48 To have effect, an Article 4 Direction must be made before the PD rights
are implemented. Since the GPDO 2015 grants permission for up to 28
(temporary) changes of use on as many days in the year under Part 4, a
Direction can be made at any time to take effect prior to the next exercise
of the right;
South Bucks DC v SSE & Strandmill [1989] JPL 351.
Only
49 An Article 4 direction may give rise to compensation under s108. The
procedures to be followed when making, modifying or cancelling a
Direction are set out in Article 4(4) and Schedule 3 of the GPDO 2015.
correct
Other Exceptions to PD
as
50 Article 1(2) of the GPDO 2015 notes that it applies to all land in England,
but where land is the subject of a Special Development Order, whether
of:
made before or after the commencement of the GPDO 2015, the GPDO
2015 applies to that land only to such extent and subject to such
10
modifications as may be specified in the Special Development Order.
January
51 Article 1(3) states that nothing in the Order applies to any permission
deemed to be granted under s222
of the TCPA90 – advertisements
complying with regulations.
52 Article 3(6) excludes permission for any development, other than under
2018
certain classes of Parts 9 and 18, which requires or involves the
formation, laying out or material widening of an access to a trunk or
classified road, or creates any obstruction to the view of persons using
any highway used by vehicular traffic, so as to cause danger to them.
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link to page 35 link to page 43
53 An Inspector can find that a building or works which would otherwise be
PD require express planning permission, because it would be necessary to
provide a new access, or materially widen that existing to a trunk or
classified road. It is for the Inspector to ascertain whether such works are
‘required’. A decision as to whether development would result in danger to
This
highway users is likewise for the Inspector's judgment. If these matters
are not already raised, representations should be sought from the parties.
publication
54 Development within the meaning of th
e Town and Country Planning
(Environmental Impact Assessment) Regulations 2011 is not permitted
under the GPDO 2015 unless relevant requirements of Articles 3(10),
3(11) and/or 3(12) are satisfied; see al
so Other Statutory Duties below.
Interpretation
is
General
frequently
55 PD rights are granted in accordance with the definitions set out in Article
2(1). It is also necessary to pay attention to paragraphs which set out the
interpretation of particular Parts and Classes, such as Part 1, paragraph I.
Where a term is defined for the specific purposes of one Part or Class of
an Order, it should not be taken as applying to other Parts or Classes. The
updated.
Technical Guidance: Permitted Development for Householders also assists
in the interpretation of Part 1, although regard must be had to the correct
version of this document, as set out below i
n Annexe B.
56 It should be noted that definitions set out in an Order relate only to the
Order and not to primary legislation. Where a term is defined in the
Only
s336(1) of
the TCPA90, and not subsequently qualified or adapted in an
Order, the definition in s336(1) would apply.
correct
57 If neither the Order nor the TCPA90 gives a term a precise meaning, the
‘ordinary’ meaning of the word(s) should be applied as in the Oxford
English Dictionary. It was held in
Evans v SSCLG [2014] EWHC 4111
(Admin) that the ordinary meaning of the language is to be ascertained
as
when constructing the Order in a broad or common sense matter.
of:
58 Regard may also be had to the purposive approach to the interpretation of
legislation that is adopted by the Courts. In
Cawley v SSE & Vale Royal DC
10
[1990] JPL 742, it was held that headings in secondary legislation can be
used as an aid to interpretation.
January
59 The term ‘building’ is given a different meaning in Article 2(1) of the
GPDO 2015 than in s336(1) of the TCPA90, so that ‘building’ includes any
part of a building except in relation to specified Parts and Classes – the
list of which was extended by th
e Town and Country Planning (General
2018
Permitted Development) (England) (Amendment) Order 2018.
60 For the purposes of the GPDO 2015, the term ‘building’ does not include
any gate, fence, wall or other means of enclosure except again in relation
to specified Parts and Classes. The meaning of ‘building’ is further
qualified in respect to demolition in Article 3(9). As highlighted in
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Havering LBC v SSCLG [2017] EWHC (Admin) 1546, Article 2(1) defines
‘cubic content’ as meaning ‘the cubic content of a structure or building
measured externally’.
61 Article 2(2) sets out the meaning of ‘ground level’ in relation to the height
This
of buildings. This is relevant to, for example, buildings which fall to be
considered under Part 1, Class E – but not fences to be considered under
Part 2, Class A, since the latter are excluded from the meaning of
publication
buildings in Article 2(1).
62 Articles 2(3) to 2(12) set out further definitions and provisions, including
that the meaning of Article 2(3), 2(4) and 2(5) land is described in Parts
1, 2 and 3 of Schedule 1 respectively. Such land includes Conservation
Areas, AONBs, areas specified by the SoS for the purposes of s41(3) of
th
e Wildlife and Countryside Act 1981, the Broads, National Parks, World
is
Heritage Sites, and other named areas where Special Development Orders
frequently
apply so as to modify PD rights und
er the Order.
Highway
63 S336(1) of
the TCPA90 provides that, for the purposes of the TCPA90,
‘highway’ has the same meaning as in [s328] of th
e Highways Act 1980.
updated.
It states that, except where the context requires, ‘highway’ means the
whole or any part of a highway other than a ferry or waterway and that
where such a highway passes over a bridge or through a tunnel, that
bridge or tunnel is to be taken to be part of the highway.
64 Common law has established that a highway is a defined route over which
Only
the public can pass and repass without hindrance or charge. The use must
be “as of right”, meaning without force, without secrecy and without
permission. The public right to pass and repass as of right may be limited
correct
to a particular class of user or mode of transport.
65 In the absence of any contrary statutory definition, a privately-owned or
maintained or an unmaintained way may be a highway if the public can
as
use it “as of right”. This applies to the GPDO 2015 except in relation to
Part 1 – but is not the case, given s328, for a ferry or waterway.
of:
66 For the purposes of Part 1 only, ‘highway’ is defined in paragraph I as
10
including an unadopted street or a private way. Since those terms are not
qualified, paragraph I would appear to extend the common law definition
January
to include unadopted streets or private ways to those where the public do
not have a right of use.
Dwellinghouse
2018
67 The term ‘dwellinghouse’ is not defined i
n the TCPA90, but it has been
held that the distinctive characteristic of a ‘dwellinghouse’ is its ability to
afford to those who use it the facilities required for day-to-day private
domestic existence8. This definition would normally include flats.
8
Gravesham BC v SSE & O'Brien [1984] 47 P&CR 142; [1983] JPL 307
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68 From s6(c) of th
e Interpretation Act 1978, singular includes the plural, but
care should be taken in considering whether the term ‘dwellinghouse’
could mean ‘dwellinghouses’. Part 1 relates specifically to ‘development
within the curtilage of a dwellinghouse’ and operations such as dormers
which straddle two adjoined dwellinghouses could not be PD. However,
This
the change of use permitted under Class M of Part 3, for example, is not
limited to the creation of a dwellinghouse; the floorspace is limited, via
M.1(c) and M.1(d), but not the number of dwellings.
publication
69 For the purposes of the GPDO 2015, under Article 2(1), a ‘dwellinghouse’
does not include a building containing one or more flats, or a flat
contained within such a building, except in relation to Part 3.
70 Thus, there are no PD rights under Part 1 for development within the
curtilage of a building that is in mixed use with one or more flats, or is
is
entirely used for separate self-contained flats. However, a flat which is
frequently
used as a dwellinghouse as defined by Class C3 of the UCO 1987 may be
changed to specified uses in Part 3.
71 Whether a building or part of a building is used as a dwellinghouse is a
question of fact. Housing space standards are not relevant to this test. A
dwelling which is too small to meet the standard might be ‘substandard’ in
updated.
policy terms, but still a dwelling in legal terms, unless it is so small that it
fails to provide the ‘facilities required for day-to-day private existence’.
72 It is not a condition of qualifying for Part 1 PD rights that a ‘dwellinghouse’
is of a particular type or used in accordance with Use Class C3. It is likely
that a dwellinghouse in use as a [small] HMO, as defined by Use Class C4,
Only
will fit within the GPDO 2015 definition and benefit from Part 1 PD rights.
73 It will be a matter of fact and degree as to whether larger
sui generis
correct
HMOs meet the definition of a dwellinghouse for Part 1. Provided that the
premises are in use as a dwellinghouse in the
Gravesham sense, and not
caught by the exception for ‘flats’ i
n Article 2(1), the PD rights granted
under Part 1 would normally apply to these large houses.
as
74 Where PD rights are based on the ‘original dwellinghouse’, the definition in
of:
th
e GPDO 2015 (or relevant previous Order) must be used. Where there is
a ‘missing piece’ of a pre-1948 dwelling, it will be for the Inspector to
10
ascertain from the available evidence what the dimensions were at 1948,
in order to determine the extent of the PD right; for example, where the
January
rear wall of the original dwelling was for the purposes of A.1(h).
75 It is not possible to assess what comprised the original dwellinghouse until
it came into being; the GPDO 2015 does not mention ‘original building’.
Where a change of use has previously taken place, the original dwelling
2018
will be that which resulted from the change, and is now the building
subject to the appeal. The building referred to is the dwellinghouse which
is the subject of the PD right, and not some other dwellinghouse or
building that may have pre-existed the formation of that dwellinghouse.
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link to page 54 link to page 43
Curtilage
76 ‘Curtilage’ is a legal concept and not a use of land. The term generally
refers to land which serves the purpose of a building in some reasonably
This
necessary or useful manner; it has been held that the tests of physical
layout, ownership (past and present) and use (past and present) apply9.
The question is whether, as a matter of fact and degree, the land forms
publication
part and parcel of, or has an intimate association with the building to
which it is attached. It is not necessary for land within the curtilage of a
building to be small or enclosed10.
77 There are several references to the term ‘curtilage’ in the GPDO 2015, but
it is only given a precise definition for the purposes of Part 3, Classes Q, R
and S, as described in
Annexe C. The GPDO 2015 contains no definition of
is
‘curtilage’ for Part 1 purposes, but th
e Technical Guidance does, as
frequently
described i
n Annexe B.
78 If there is any difficulty defining the extent of the curtilage, it should be
borne in mind that the interpretation of whether a development is within
the curtilage is a matter of law; further advice on curtilage is set out in
th
e Enforcement and th
e Historic Environment chapters.
updated.
Agriculture
79 For development to be PD under Part 3, Class Q of the GPDO 2015, the
‘
site’ must have been used solely for an agricultural use as part of an
established agricultural unit on 20 March 2013, or the ‘
building’ must have
Only
been in such use when last in use, or the ‘
site’ must have been in such
use for at least ten years if brought into use after the specified date;
paragraph Q.1(a). ‘Site’ is defined in paragraph X as ‘the building and any
correct
land within its curtilage’.
80 Part 3, Classes R and S also set out PD rights in relation to a change of
use of a ‘building and any land within its curtilage from use as an
as
agricultural building’, but R.1(a) and S.1(a) only require that the ‘building’
was used solely for an agricultural use as part of an established
of:
agricultural unit on the specified dates.
10
81 For development to be PD under Part 6, Classes A or B, it must be
undertaken on ‘agricultural land comprised in an agricultural unit’ and be
January
‘reasonably necessary for the purposes of agriculture within that unit’.
The
PPG at paragraph ref ID 13-115-20180222 offers guidance on whether
express planning permission is required for a farm track.
82 While Inspectors should be careful of ‘reading across’ the GPDO 2015, and
2018
further considerations relating to Part 3 and Part 6 are set out in Annexes
C and E below, this section of the ITM assists in general matters of
interpretation relating to agriculture.
9
Sinclair-Lockhart's Trustees v Central Land Board [1950] 1 P&CR 195;
Attorney General ex rel Sutcliffe,
Rouse & Hughes v Calderdale BC [1983] JPL 310
10 From a review of authorities pertaining to the exercise of PD rights in
McAlpine v SSE [1995] JPL B43;
Skerritts of Nottingham Ltd v SSETR [2000] 2 PLR 102
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‘Agriculture’, ‘Agricultural land’ and ‘Agricultural Buildings’
83 In the absence of any definition i
n the GPDO 2015, the meaning of
‘agriculture’ should be taken from s336(1) of
the TCPA90. The use is
This
taken to include ‘horticulture, fruit growing, seed growing, dairy farming,
the breeding and keeping of livestock…the use of land as grazing land,
meadow land, osier land, market gardens and nursery grounds, and the
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use of land for woodlands where that use is ancillary to the use of land for
agricultural purposes, and ‘agricultural’ shall be construed accordingly’.
84 The list set out in s336(1) is not exclusive; these are examples of
agricultural activities. ‘Agriculture’ may include the use of land for grazing
horses, but it does not include the breeding and keeping of horses;
Belmont Farm v MHLG [1962] 13 P&CR 417. ‘Keeping’ horses involves
is
activities other than putting them out to graze.
frequently
85 ‘For the purposes of agriculture’ means the productive processes of
agriculture and not food processing – or the buying and selling of
agricultural products;
Hidderley v Warwickshire CC [1963] 14 P&CR 134.
A “leisure plot” is not an agricultural use;
Pitman v SSE [1989] JPL 831.
updated.
86 For Part 3, paragraph X states that ‘“agricultural building” means a
building (excluding a dwellinghouse) used for agriculture and which is so
used for the purposes of a trade of business; and “agricultural use” refers
to such uses’. For Part 6, the meaning of ‘agricultural land’ is given under
paragraph D.1 as “land which, before development permitted by this part
is carried out, is…in use for agriculture and…so used for the purposes of a
Only
trade or business, and excludes any dwellinghouse or garden”.
87 For Part 3, Classes Q, R and S, the site or building, as the case may be,
correct
must have been used
solely for agriculture as defined on the specified
dates. Development proposed under Part 6 must be on land used solely
for agriculture as described. If the site, building or land is in a mixed use,
meaning that it is put to one or more primary uses which are not
as
incidental to each other, PD rights will not apply under Parts 3 or 6.
of:
88 Where there is one or more activity on the site or land, the CoA held in
Millington v SSETR [1998] EGCS 154 that the correct approach was to
10
consider whether the activities could be regarded as ordinarily and
reasonably incidental to agriculture, or consequential on the agricultural
January
operations of producing the crop. The "instinctive view" was that the
making of wine, cider or apple juice on this scale was a perfectly normal
activity for a farmer engaged in growing wine grapes or apples.
89 The use of a building as a farm shop can be ancillary to an agricultural use
2018
but, once a significant proportion of produce is imported, it is likely to
become a separate retail use;
Bromley LBC v Hoeltschi & SSE [1978] JPL
45. The assessment is based on fact and degree rather than an arbitrary
percentage. Commercial lairage and storage of EU reserves are not
agricultural uses;
Warnock v SSE [1980] JPL 590 and [1989] JPL 290.
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90 It should be noted that residential use of a land or building would not
normally be incidental to another primary use. If there is a requirement
for an agricultural worker to live on a farm, the
occupation of their
dwelling or caravan might regarded as functionally related to the primary
agricultural use, but the residential
use would be a separate main use.
This
91 For Part 3, the land must have been used for a trade or business on the
specified dates; for Part 6, the land must have been so used before the
publication
works are begun;
Jones v Stockport MBC [1984] JPL 274. However,
commercial viability is not a prerequisite to PD rights under Part 6.
92
Customs and Excise Commissioners v Lord Fisher [1981] 2 All ER 147 is
often cited as authority that the primary meaning of ‘trade or business’ is
an occupation by which a person earns a living – but it was held in
South
Oxfordshire DC v East & SSE [1987] JPL 868 that no one factor was
is
decisive as to whether the activities constitute a trade or business. Other
frequently
factors such as whether the activity was carried out for pleasure, the
person concerned was an enthusiastic amateur, the keeping of accounts,
size of turnover and any profit made should also be considered.
93 It should also be kept in mind that a profit may not be made in the early
stages of a business. If a farming enterprise is being established, and it
updated.
does not appear that this is being done as a hobby, then the fact that
there are little or no profits does not prevent it being a trade or business;
McKay & Walker v SSE & South Cambridgeshire DC [1989] JPL 590. In
Kerrier DC v SSE [1995] EGCS 40, it was affirmed that low level of income
was not in itself conclusive11. However, if there is no intention to make a
profit, that may be evidence of recreational rather than business activity.
Only
‘Agricultural Unit’
correct
94 An ‘agricultural unit’ is defined for the purposes of Part 6 as agricultural
land which is occupied as a unit for the purposes of agriculture but
including specified dwellings. An ‘established agricultural unit’ for Part 3
means agricultural land occupied as a unit for the purposes of agriculture
as
for specified periods for Classes R, Q and S.
of:
95 The definition set out in Part 3, Paragraph X only requires that the land is
occupied as an agricultural unit at the particular point in time as specified
10
in the relevant Class. The requirement that the agricultural unit be
‘established’ on a particular date is not a requirement that the unit is
January
established for a given period prior to the date and there is no
requirement for the established agricultural unit to be of a particular size.
96 An agricultural unit is not the same thing as the planning unit, and may
comprise more than one planning unit;
Fuller v SSE and Dover DC [1987]
2018
JPL 854. It is a question of fact as to whether land forms part of one
agricultural unit; the term should be interpreted as meaning agricultural
land occupied as a unit.
11 In a s64 SSE decision reported at [1993] JPL 395, it was accepted that a trade or business existed even
though no income had been received from a recently planted orchard on the basis that “
such a situation is
common in farming, and an income should be provided in due course from the apple trees”.
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97 It was held in
Lyons v SSCLG [2010] EWHC 3652 (Admin) that a planning
unit in a mixed use of agriculture and other primary use does not benefit
from Part 6 rights. While this judgment stands, the Order itself makes no
mention of ‘planning unit’ in relation to Part 6 or indeed Part 3. The tests
This
relate to whether the site, building or land is solely in agricultural use, and
whether the site, building or land is comprised in an agricultural unit.
publication
98 Indeed, it was held in
Rutherford & Anr v Maurer [1962] 1QB 16 that the
‘trade or business’ being conducted on the land does not need to be an
agricultural business; Part 6 PD rights applied on land where horses were
grazed as an agricultural use but the business was a riding school.
99 In
South Oxfordshire, the judge was “
inclined to the view” that Part 6
rights could apply where there was a mixed use for agriculture and
is
recreation, provided that the area of ‘agricultural land comprised in
frequently
agricultural unit’ was of the size required by the Order (5ha or more for
Class A), even if it is not used ‘exclusively’ for agriculture.
100
Rutherford and
South Oxfordshire precede
Lyons and the GPDO 1995 as
well as the GPDO 2015; they should be treated with caution. Nonetheless,
where it appears that the planning unit is in a mixed use, it should not be
updated.
assumed automatically that the proposed development could not be PD. If
the site, building or land is in agricultural use, but other land within the
planning unit is used (for example) for recreational or residential
purposes, it will be a question of fact and degree as to whether there is
still an agricultural unit for the land, site or building to be part of.
Only
101 It is not necessary for the occupier to own the agricultural land in order
for it to form a unit, but the terms of occupation are relevant; generally
some security of tenure would be required. Temporary grazing that varies
correct
from season to season would not form part of the unit but separation of
parcels within the unit is acceptable.
102 The purpose of an Agricultural Holdings Certificate is to ensure that
as
anyone with an agricultural tenancy is notified of a planning application.
The Certificate is not evidence of the use of land or any buildings as
of:
‘agriculture’, or as to whether the land is an ‘agricultural unit’.
10
Floorspace
January
103 Under s55(2)
of the TCPA90, operations which affect only the interior of
the building shall not be taken to involve development. S55(2A) and (2B)
enable the SoS to specify or describe circumstances, in a development
order, where the exemption should not apply in respect of operations
which would have the effect of increasing ‘gross floor space’ by such an
2018
amount or percentage amount as is specified.
104 Article 2(1) of the GPDO 2015 provides that, for the purposes of the
Order, ‘floor space’ means the total floor space in a building or buildings.
Various classes of PD are subject to limitations in relation to floorspace,
but the language used is not consistent, as follows:
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link to page 54
‘(cumulative) floor space of the (existing) building(s)’
‘gross floor space of the (original / existing / new) building’
‘floor space (with)in the (existing) building’
105 In Schedule 2, the only reference to ‘gross floor space’ is in Part 3, Class
This
P; all other classes refer to ‘floor space’. Except in cases where the GPDO
2015 specifies that floor space should be based on an external calculation,
Inspectors may adopt the following interpretations:
publication
‘gross floor space’ includes the external walls (RICS Gross External Area)
‘floor space’ is measured to the internal face of the perimeter walls, so as to
exclude the external but include internal walls
(RICS Gross Internal Area)
106 Further advice on floorspace for Part 3 is provided in
Annexe C below.
is
Demolition frequently
107 In prior approval or enforcement appeals, where the plans show that
demolition would take place, the first question to ask is whether the
demolition would be ‘development’ under s55 of th
e TCPA90 such that
planning permission is required. If so, the next question is whether the
demolition is or would be permitted by
the GPDO.
updated.
108 S55(1) and (1A) of the TCPA90 provide that ‘building operations’ include
‘demolition of buildings’, but s55(2)(g) provides that the demolition of any
description of building specified in a direction made by the SoS to LPAs
generally or a particular LPA shall
not be taken to involve the
development of land.
Only
Buildings
correct
109 T
he Town and Country Planning (Demolition – Description of Buildings)
Direction 2014 (the 2014 Direction) provides in paragraph 2(1) that the
demolition of (a) any building the cubic content of which, measured
externally, does not exceed 50 cubic metres shall not be taken to involve
the demolition of land for the purposes of the TCPA90.
as
of:
110 If the demolition of a building is not ‘exempted’ from development under
s55(2)(g) and the 2014 Direction, Part 11, Class B permits any building
10
operation consisting of the demolition of a building12. Thus, Class B covers
buildings which exceed 50m3 – but not any engineering operations January
involved in demolition
; Caradon v SSETR [2000] QBD 12.9.00. Articles
2(1) and 3(9) also provide that, in Part 11, ‘building’ does not include part
of a building.
111 The PD rights set out under Class B are subject to conditions and
2018
limitations, such that, in most cases, prior approval is required. Paragraph
B.1(b) precludes ‘relevant demolition’ as described under s196D of the
TCPA90, relating to unlisted buildings in conservation areas. It was held in
12 Under Article 3(9), demolition is not permitted by the GPDO except as provided in Part 11, Classes B and
C.
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Barton v SSCLG & Bath and North East Somerset Council [2017] EWHC
573 (Admin) that the definition of ‘building’ in s336(1) of the TCPA90
applies to s196D.
112 Class 11, paragraph B.1(c) also provides that demolition of any building
This
that is or was last used as a drinking establishment under Use Class A4,
or as a ‘drinking establishment with expanded food provision’ under Part
3, Class AA is not PD; see PPG paragraphs ref ID
13-065-20180222 and
publication
13-117-20180222.
Gates, Fences, Walls or other Means of Enclosure
113
The 2014 Direction provides in 2(1)(b) that the whole or any part of any
gate, fence, wall or other means of enclosure shall not be taken to involve
the demolition of land for the purposes of the TCPA90. This does not apply
is
to the whole or any part of any gate, fence, wall or other means of
frequently
enclosure in a conservation area.
114 If not ‘exempted’ from development under s55(2)(g) and the 2014
Direction, Part 11, Class C sets out PD rights for any building operation
consisting of the demolition of the whole or any part of any gate, fence,
wall or other means of enclosure. Again, the PD right precludes
updated.
engineering operations and ‘relevant demolition’; paragraph C.1.
115
In Barton, the Inspector upheld an enforcement notice relating to the
demolition of a wall in a conservation area, on the basis that removal
works amounted to demolition and not alteration. It was held that the
Inspector made no error in law in focussing on what had been removed,
Only
and had clearly concluded that the works involved would amount to
demolition without any aspect of alteration. The Inspector was entitled to
reach that conclusion, which is not vitiated by a failure to spell out that
correct
the demolition did not
at the same time amount to works of alteration.
116 For further guidance on demolition and development, see th
e Enforcement
chapter of the ITM.
as
of:
10
January
2018
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Prior Approval Applications and Appeals
Introduction
117 The prior approval procedure for ‘large’ extensions to dwellinghouses
This
under Part 1, Class A is set out at Part 1, paragraph A.4. The procedure
for all Classes under Part 3 is provided at paragraph W. The procedural
requirements for other Parts are found within the Parts.
publication
118 As indicated above, and while the wording is varied in different Parts and
Classes, the requirement to seek prior approval is always imposed as a
pre-commencement condition. Where the prior approval procedure
applies, development cannot lawfully begin until:
a) the LPA has confirmed that prior approval is not required; or
is
b) the LPA gives their prior approval; or
frequently
c) the period prescribed in
the Order expires without the LPA having given or
refused prior approval.
119 Even if no other limitations to that class of PD are failed, a failure to follow
the notification procedure or a refusal of prior approval would mean that
the condition is not discharged and any development that commences is
in breach of planning control. If dev
updated. elopment does not commence, the
pre-condition would prevent a lawful start.
120 Article 7 of th
e GPDO 2015 provides that where, in relation to
development permitted by any Class in Schedule 2 which is subject to
prior approval, and an application has been made to the LPA for such
Only
approval or a determination as to whether such approval is required, the
decision must be made by the LPA:
correct
(a) within the period specified in the relevant provision of Schedule 2,
(b) where no period is specified, within a period of 8 weeks beginning with the
day immediately following that on which the application is received by the LPA; or
(c) within such longer period as may be agreed by the applicant in writing.
as
121 T
he Town and Country Planning (General Permitted Development)
(England) (Amendment) Order 2018 introduced Article 7ZA, which sets
of:
out a modified procedure in relation to call-in applications.
10
122 The statutory periods under Article 7(a) pertaining to the most common
January
case work types are: 42 days in respect of Part 1, Class A; 56 days for
Part 3; and 28 days for Part 6, Class A. The periods are exclusive, so that
– for example, in Part 6, Class A – day 1 would be the day following the
application date, and clock would stop at midnight on day 28.
2018
123 Through Article 7 and the relevant Parts and paragraphs, an applicant can
proceed with the PD if the LPA determines that they do not require such
prior approval to be given, or does not make a determination or notify the
appellant of their determination within the statutory period from the date
when they received the application. In such cases, prior approval is
deemed to be granted.
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124 It was held in
Murrell v SSCLG [2010] EWCA Civ 1367 that the prior
approval procedure is attended by the minimum of formalities. It is not
mandatory to use a standard form or provide any information beyond that
specified in the Order – in that case, Part 6, paragraph A.2(2)(ii) of the
GPDO 1995. The assessment of the prior approval matters has to be made
This
in a context where the principle of the development is not, itself, an issue.
125 Where the application complies with the statutory requirements and is
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valid, the statutory period for consideration of the need for prior approval
runs from that date.
In Murrell, handling mistakes by the LPA and the fact
that the applicant submitted a new form and further plans (as requested)
did not stop the clock running. On the expiry of the statutory period,
permission had been deemed to be granted.
126 Where the LPA does not make a determination or require prior approval,
is
the development is lawful only if it is carried out in accordance with the
frequently
submitted plans and it is PD; see
Keenan and Marshall below.
127 Case law indicates that planning decisions should be construed as though
read by a reasonable reader, and not subject to overly forensic analysis. If
the LPA’s decision notice can reasonably be read as a refusal, it can be
treated as such. While it is best practice for a LPA to say so explicitly, it
updated.
can be implicit in a refusal of prior approval that the LPA considers its
prior approval is required.
128 The following wording may be adopted if applicable:
The Council’s decision notice states that prior approval is required but does not
Only
explicitly state that prior approval is refused. However, looking at the notice as a
whole, including the reason as set out and the statement of the applicant’s rights,
it is reasonable to read the notice as a refusal of prior approval.
correct
129 If the notice cannot be read as a refusal, a check should be made as to
whether prior approval is deemed to be granted due to the expiry of the
statutory determination period.
as
Prior Approval Appeals
of:
130 There can be no appeal against a grant of unconditional prior approval,
10
including where the LPA states that prior approval is not required.
January
131 However, an appeal can be made under s78(1)(c)
of the TCPA90 where
the LPA ‘refuse an application for any approval of that authority required
under a development order, a local development order or a
neighbourhood development order or grant it subject to conditions.’
2018
132
Pressland v Hammersmith & Fulham LBC [2016] EWHC 1763 (Admin)
confirms that if prior approval is granted subject to conditions, the
resulting permission granted by the Order is subject to those conditions,
and therefore a right of appeal arises under s78(1)(c). This is the case
even if the conditions were imposed by mistake.
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link to page 23
133 Where an appeal has arisen following the refusal of an application to carry
out development without complying with a condition imposed on a prior
approval, Inspectors should use the standard s73 template, unless it
appears that the development has commenced, such that the appeal
ought to be considered under s73A for development already carried out;
This
see th
e Appeals against Conditions chapter for more information.
134 In such circumstances, Inspectors should incorporate a Preliminary Matter
publication
in the decision setting out that planning permission was granted under the
GPDO 2015 subject to the prior approval process, and at which stage the
contested conditions were imposed. The Inspector has the power to
remove or, to the extent described below, ‘vary’ the conditions.
135 In relation to Part 1, Class A, where a developer seeks approval of the LPA
for a change in approved details and this is refused, an appeal might be
is
made against that refusal. There is no scope for further limitations to be
frequently
placed on the developer under this deemed condition.
136 A question has arisen at appeal as to whether a LPA’s decision to refuse
prior approval was invalidated by a failure to give reasons for the decision.
This would not normally be the case. Regulation 35(1)(b) of th
e Town and
Country Planning (Development Management Procedure) (England) Order
updated.
2015 (the DMPO) requires that a LPA give reasons for their refusal of an
application for planning permission, or approval of reserved matters, but
this will not apply to an application for prior approval.
137 Regulation 7 of th
e Openness of Local Government Bodies Regulations
2014 imposes a general requirement on local authorities to give reasons
Only
for decisions made by officers under delegated powers. The requirement is
to produce the reasons ‘as soon as reasonably practicable after the
decision-making officer has made the decision’. The reasons do not need
correct
to be produced with the decision itself13.
Validity
as
138 Maximus Networks Ltd v SSHCLG, Southwark LBC & Hammersmith and
Fulham LBC [2018] EWHC 1933 (Admin) dealt with the question
of: of
whether the decision-maker can invalidate an appeal because a
10
procedural step was not complied with during the original application. It
was held that the decision-maker has the discretion to turn away an
January
appeal on procedural grounds, and may choose to consider this matter
afresh under s79 of t
he TCPA90. The main factors to consider would be
any prejudice that is caused by the procedural omission, and the need for
the procedural rules to be respected, bearing in mind that an LPA is
obliged to turn away a procedurally-incorrect application under s327A.
2018
139 The question on procedural validity is different from the question as to
whether the proposed development would be PD
, dealt with below, and
can be dealt with by the Case Officer.
13 The Supreme Court judgment in
Dover DC v CPRE Kent [2017] UKSC 79 concerns the duty of a local
authority to give reasons where it grants permission contrary to the advice of officers.
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link to page 77
Appeal Template
140 When dealing with an appeal, it is essential to select the correct template.
In DRDS this is ‘DEV order appln – refusal’ or ‘DEV Order appln –
This
conditional grant’. The banner heading and relevant paragraphs should be
adapted to reflect the precise nature of the appeal
; see Annexe G and the
example template for Part 1, Class A, paragraph A.4 ‘larger single storey
publication
rear extensions’.
141 The template for a costs application relating to a prior approval appeal is
the same as for any costs application pursuant to an s78(1)(c) appeal.
Lawfulness
is
142 In prior approval appeals, as in any others concerning the Order, it is
frequently
necessary to ensure the operations or use would not contravene Article
3(4) and a condition imposed on a separate planning permission; would
be lawful under Article 3(5)(b); and the PD right relied upon has not been
removed by an Article 4(1) Direction in force14.
143 It is also necessary in prior approval appeals, where any trigger date is
updated.
defined in the PD right, to ensure that the relevant use was occurring on
that trigger date. For example, Part 3, Class J.1(a) looks at the use on 5
December 2013, and Class O.1(b) looks at the use on 29 May 2013.
144 The operations or use must be as specified in the PD right at the time of
the application. For example, in order for the Part 3, Class Q right to
Only
apply, the building must have solely been in agricultural use, and not, for
example, in a mixed agricultural/domestic use on 20 March 2013 or when
last in use. Moreover, the use must not have changed to another by the
correct
time that the appeal is considered. The use on a particular date will be a
question of fact to be determined on the evidence provided.
Development Commenced
as
145 Where there is any failure to adhere to the requirements of the prior
of:
approval procedures, expressed as pre-commencement conditions, the
application should be refused and the appeal dismissed. Prior approval
10
cannot be given for development that has already begun, whether or not
it is wholly or partially compl
eted; Winters v SSCLG & Havering LBC
January
[2017] EWHC 357 (Admin)15. This applies even if the development was
begun after the application was made or during the appeal process.
146 Where it is obvious that development has commenced, appeals may be
‘screened out’ in the office. If it is necessary for the Inspector to
2018
determine whether the development has begun, reliance should be placed
on the evidence and the concepts of ‘material operation’ and ‘material
development’ in s56 of
the TCPA90; see the
Enforcement chapter.
14 Where an Article 4(1) Direction removes PD rights, the LPA should refuse prior approval, even if the
Direction came into force after the application was made.
15 Appeal to the CoA in
Winters was withdrawn and so the HC judgment stands
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 22 of 78
147 Occasionally, an appeal may be made in relation to part of a development,
where that part has not begun but the remainder of the development has.
Such an appeal can only be determined on its merits if it is clear that
operations can be clearly severed as a matter of fact and degree.
This
148 If the development has been carried out, in full or in part, the appeal
decision should include a preliminary paragraph, which describes the
publication
nature of the development – as adjudged with regard to the application as
a whole, and not just the submitted plans. From that, the Inspector
should also set out their approach to the appeal.
149 If the appeal is being allowed expressly for a part of a development only,
it will be necessary to explain very clearly that the approval does not
apply to the development which has been carried out – and to make a
is
‘split’ decision, so that operations which have commenced unlawfully are
frequently
refused. It would then be for the parties to consider what further action, if
any, should occur in respect of the development which has taken place.
Failure to Comply with Other Limitations and Conditions
150 It may be assumed that a developer seeking prior approval has come to
updated.
their own conclusion that the proposal qualifies for the permission granted
und
er the GPDO 2015; in other words, that there is no conflict with any
limitation or condition to the PD right. As noted above, a LDC can be
granted for PD which does not require prior approval, but not for proposed
development which requires but does not have prior approval.
Only
151 Where LPAs have been concerned that proposed development could not
be PD, they have proceeded in different ways:
correct
Advised that the proposal is not PD but nevertheless proceeded to consult on,
consider and then refuse the prior approval application. This is encouraged by the
introduction of Part 1, Class A.4(3) and Part 3, Paragraph W(3).
Refused prior approval and in doing so noted that their decision does not confirm
as
that the proposal would be PD – ie not confirming that the relevant conditions,
limitations and restrictions have been met.
of:
Determined the prior approval application on the basis that the proposal could not
10
be PD or there is insufficient information to demonstrate that it is.
January
Stated in their decision that prior approval is required, and perhaps given reasons
for refusal, but not explicitly stated that prior approval has been refused. In this
situation, it may not be immediately apparent that their decision constitutes a
refusal of prior approval.
2018
152 LPAs have varied powers und
er the GPDO 2015. They may refuse an
application made under Parts 1, 3, 4, 7 and 14 where the proposed
development does not comply, or the developer has provided insufficient
information to establish compliance with any conditions, limitations or
restrictions specified in the Part as applicable to the development in
question; see, for example, Part 3, paragraph W.(3).
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 23 of 78
153 In relation to Parts 6, 9, 11 and 16, however, the powers of the LPA
extend only to making a determination as to whether prior approval is
required or not in accordance with the details submitted; see Part 6,
paragraph A.2(2)(v). Prior approval applications under Parts 17 and 18
may also be refused only in relation to the prior approval matters.
This
154 If a LPA is concerned that development proposed in relation to Parts 6, 9,
11, 16, 17 or 18 would not be PD, they have long been advised to refuse
publication
the prior approval application on the basis that they require details of the
matters to be submitted for approval – whether or not they also state that
the development would not comply with relevant conditions or limitations
– or that there is insufficient information to establish compliance.
155 By refusing the application for a reason or reasons related to the prior
approval matters, the LPA will be able object to the details, albeit on the
is
limited grounds available, and prevent implementation of a fallback
frequently
position. If the LPA does not issue a determination to the effect that it
requires details of the matters, the applicant will be free to begin
development after the specified period. The developer would only be at
risk enforcement action only if it is indeed the case that the development
is not PD and requires express planning permission.
updated.
156
Keenan v Woking BC & SSCLG [2017] EWCA Civ 438 concerned a case
where a LPA issued an enforcement notice directed at sections of a track
on agricultural land – but the appellant had previously made a prior
approval application for the development under Part 6, Class A of the
GPDO 1995. The appellant had constructed the track only after the LPA
had failed to make a determination within the statutory 28 day period.
Only
157 The appellant appealed the enforcement notice on the ground that the
track was PD, given the LPAs failure to determine the prior approval
correct
application. The Inspector dismissed the appeal on the basis that it had
not been shown that the sections of the track were reasonably necessary
for agriculture when the prior approval application had been made.
as
158 The High Court and then CoA upheld the Inspector’s decision. Lindblom LJ
held for the CoA that, for development to be PD in the first place –
of:
permitted under Article 3(1) – it must come fully within the relevant
description of PD provided for in each class. If it does not, the conditions
10
applicable to PD cannot apply.
January
159 The provisions of Part 6, paragraph A.2(2)(i), which require the developer
to apply for a determination as to whether prior approval is required, do
not embody a grant of planning permission under Class A. The meaning of
A.2(2)(i) is simply that development which is PD under Part 6, Class A and
within the scope of A.2(2) is subject to the specified conditions.
2018
160 For the provisions relating to conditions in Part 6, paragraph A.2(2)(i) to
come into play, the development proposed had to fall squarely within the
description of PD in the relevant class. However, the condition which
required the developer to apply for a determination on prior approval did
not impose a duty on the LPA to decide whether the development is PD.
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 24 of 78
Nor did it confer on the LPA a power to grant planning permission for
development outside of the defined class of PD.
161 The sole and limited function of Part 6, paragraph A.2(2)(i) is to enable
the LPA to determine whether its own prior approval would be required for
This
the specified details of the permitted development. If the LPA was to
decide that prior approval was not required, the condition would
effectively be discharged and the developer could proceed with the PD –
publication
but not with any development that was not PD.
162 If an LPA fails to make a determination within the statutory period, the
developer can proceed with PD, but again not development that is not PD.
The developer would not have planning permission for development that
is not, in fact, PD. The basic principle is that development cannot become
PD by default when the LPA does not make a determination.
is
frequently
163
R (oao Marshall) v East Dorset DC & Pitman [2018] EWHC 226 (Admin)
establishes the limits to LPA powers in the determination of Part 6 prior
approval applications. Lang J held, following
Keenan, that a LPA:
“does not have power under the prior approval provisions of the GPDO, or indeed
any other provision of the GPDO, to determine whether or not the proposed
development comes within the descripti
updated. on of the relevant class in the GPDO…the
appropriate time for the [LPA] to consider this issue is in response to an
application for a certificate of lawfulness of existing use or development…or an
application for planning permission. If no such applications are made, the [LPA]
has power to consider whether a development is within permitted development
rights in the context of enforcement proceedings.
Only
“The [LPA] exceeded its powers, and therefore acted unlawfully, when purporting
to decide…that the…proposed building constitutes permitted development…in
response to the…application for prior approval…”
correct
164 The judgment i
n Marshall applies to Inspectors, and also applies beyond
Part 6. Prior approval appeals must now be determined as follows:
Parts 1, 3, 4, 7 and 14 (‘Part 1 type cases’)
as
of:
165 If the LPA refused prior approval for a Part 1 type case within the
statutory period, and it is disputed or unclear as to whether the proposed
10
development could be PD, this should be addressed as the first main issue
in the decision.
January
166 If it is found that the development would not comply, or the developer has
provided insufficient information to establish compliance with any
conditions, limitations or restrictions specified in the Part as applicable to
the development in question, meaning that the development falls outside
2018
the PD right, there is no need to make a determination on the prior
approval matters; the appeal should be dismissed.
167 If you find that the development would comply with the conditions,
limitations or restrictions specified in the Part as applicable to the
development in question, the next question would be whether to grant
prior approval, including whether any conditions should be imposed.
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168 If the LPA contends that the development would not be PD for reasons
somehow unrelated to the conditions, limitations or restrictions specified
in the Part as applicable to the development in question, the Inspector
should take the same approach as in Part 6 type cases set out below.
This
169 Likewise, if the LPA failed to determine the application within the statutory
period, any dispute as to whether the development would be PD should be
publication
dealt with in a preliminary paragraph as in Part 6 type cases below. This is
because prior approval is deemed to be granted on the expiry of the
statutory period for the LPA to notify the developer of its determination.
170 There is an interesting question for enforcement casework as to whether a
grant of prior approval on application in Part 1 type cases should be
construed as a determination that the development would be PD, since
is
the application could have been refused on the basis of non-compliance
frequently
with any relevant conditions, limitations or restrictions imposed on the PD.
171 That was held to be the case in
R v Sevenoaks DC ex parte Palley [1994]
EG 148. However, that judgment predates the GPDO 1995 and 2015 –
and it also predates, for example,
R v East Sussex CC ex parte Reprotech
(Pebsham) Ltd [2002] UKHL 8, where it was held that, in the context of
updated.
statutory planning control, a formal application must be made under s191
or s192 of the TCPA90 if a binding determination of lawfulness is required.
172 It is certainly clear that
Palley cannot apply to Part 6 type cases, where
the LPA has no power to determine whether development would be PD
through a prior approval appeal. Whether
Palley could apply in relation to
Only
Part 1 type cases has not been tested in enforcement appeal casework.
Parts 6, 9, 11 and 16 (‘Part 6 type cases’)
correct
173 This advice applies to appeals made against refusals or non-determination
of prior approval in Part 6 type cases.
as
174 Any dispute as to whether the development would be PD should be noted
in a preliminary paragraph. It would be appropriate to state that the
of:
requirement for prior approval is akin to a pre-commencement condition
attached to the grant of permission by Article 3(1), and that development
10
which is constructed not in accordance with the terms or conditions of the
permission would be at risk of enforcement action.
January
175 However, it should then be stated that the prior approval procedure set
out under the relevant Part makes no provision for any determination to
be made as to whether the development would be PD – and so you cannot
purport to decide that question.
2018
176 Lang J indicated i
n Marshall that a LPA may “advise an applicant of its
views” as to whether development is PD, but Inspectors are cautioned not
to do so, in order to avoid prejudice to any later proceedings. After setting
out that the matter is outside of your remit, proceed simply to addressing
whether or to grant prior approval in the normal way.
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 26 of 78
Information Requirements and Failure to Determine Cases
177 The statutory period for determination will not start unless all the required
information has been received – including, for example, the statement
This
specifying the ‘net increase in dwellinghouses’ required in respect of
development proposed under Part 3, Classes M, N, O, P, PA and Q.
publication
178 If all the required information is received, but the LPA is nevertheless
unable to determine whether the development would be PD, the LPA only
has the power to refuse the application on that basis in Part 1,
3, 4, 7 and
14 cases as outlined above.
179 LPAs have some powers to request additional information, for example,
under Part 3, paragraph W(9), but this does not ‘stop the clock’ on the
is
determination period. If the LPA requests additional information, but does
frequently
not receive it, they should issue a refusal before the end of the period in
order to avoid the deemed grant of prior approval.
180 If the LPA fails to issue a refusal in that situation, the principle established
i
n Murrell holds good. The appeal should be allowed on the basis that prior
approval is deemed to be granted, and the development can lawfully
updated.
proceed so long as it takes in accordance with the submitted plans and
meets the terms and conditions of the relevant planning permission. When
allowing an appeal in this scenario, the recommended wording is: ‘…the
appeal is allowed and prior approval is deemed to be granted…’
181 On appeal, it will be for the Inspector to decide, based on the facts and
Only
evidence provided, whether and when each required element of a prior
approval application was received. Since the elements include payment of
a fee, there could be disagreement as to when that was received.
The
correct
Town and Country Planning (Development Management Procedure)
(England) Order 2015 provisions relating to dishonoured cheques do not
apply to prior approval applications; Article 27(3). There are no statutory
provisions requiring LPAs to accept payment by particular methods.
as
182 This means that, if a LPA has stated that a payment method would not be
of:
acceptable, for example, on its web site – or if a cheque is dishonoured –
a required element of the application will not have been received, and the
10
relevant period will not start until that is rectified. However, if the LPA has
not clearly indicated in advance that a particular payment method is
January
unacceptable, it would not be reasonable to delay the start of the period
because payment had been made by that method.
183 It will also be for the Inspector to determine on the facts whether or not
the applicant, on the balance of probabilities, had been notified of the
2018
decision within the specified period. ‘Notification’ does not necessarily
occur on the same day that the decision is taken and issued.
184 If the evidence is that the LPA made a decision – even if for the wrong
reasons – and the LPA notified the applicant of that decision, the
development would not become lawful due to the expiry of the period.
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 27 of 78
185 S7 of th
e Interpretation Act 1978 states that:
where an Act authorises or requires any document to be served by post… then,
unless the contrary intention appears, the service is deemed to be effected by
properly addressing, pre-paying and posting a letter containing the document
This
and, unless the contrary is proved, to have been effected at the time at which the
letter would be delivered in the ordinary course of post.
publication
186 The absence of proof that the notices were actually received within the
specified period is not necessarily determinative. If the LPA can provide
evidence that the notice was posted with enough time to allow for ‘the
ordinary course of post’, notice may be deemed to have been given.
187 Article 2(9) of the Order and paragraph 2(7) of Schedule 1 to
The Town
is
and Country Planning (Electronic Communications) (England) Order 2003
are clear that emails r
frequently eceived outside of business hours shall be taken as
received the next working day. If the LPA e-mails the notice outside of the
recipient’s business hours, it may be deemed to have arrived late.
188 Hand or courier delivery can occur up until midnight because this is not
covered by the e-mail or postal rules. It will be a question of fact as to
whether the time limit has been met. If there is any doubt, the Inspector
updated.
may wish to seek the parties’ views on this matter.
Additional Submissions
189 For some classes of PD, the Inspector may seek further information from
the developer; for example, under Part 1, p
Only aragraph A.4(8) or Part 3,
paragraph W(9) of the Order. However, and although Inspectors must
deal with the application for approval as if it had been made to them in
the first instance, a request for further information wou
correct ld be exceptional.
190 Amended plans can be accepted and taken into account by Inspectors on
prior approval appeals, subject to the usual caveat that relevant parties
have opportunity to comment in the interests of natural justice.
as
Consultation
of:
10
191 Where consultation is required as part of the prior approval procedure, our
experience to date is that LPAs will have carried this out in most cases,
January
even where they have concluded that the development would not be PD.
192 If the LPA has not carried out the necessary consultation, it must be asked
to do so via the Case Officer if the Inspector is minded to allow the
appeal. Prior approval cannot be granted if the correct consultation has
2018
not been carried out. The only exception would be where the LPA does not
make a determination or notify the appellant of its determination within
the statutory period from the date when it received the application.
193 The term ‘adjoining owner or occupier’ is defined in Article 2(1) as ‘any
owner or occupier of any premises or land adjoining the site’. Where there
is a requirement to serve notice on an adjoining owner or occupier, the
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 28 of 78
link to page 77
LPA must therefore serve notice on the owners and/or occupiers of any
adjoining land as well as buildings.
Development Outside of the Prior Approval Application
This
194 It may be the case that plans submitted with a prior approval application
show development that is not subject to the application; for example,
plans for a ‘large extension’ under Part 1, Class A may also show a roof
publication
extension. If works would fall outside the remit of the prior approval
procedure, the Inspector cannot grant approval for them.
195 In such a case, it may be noted in the decision letter what is shown in the
plans, but the Inspector should avoid making any comment as to whether
or not the roof extension would be PD, so as not to fetter the appellant,
LPA or even another Inspector in any future actions, such as a LDC
is
application for, or enforcement notice concerning the roof extension.
frequently
Matters under Appeal
196 When making a determination as to whether or not to grant prior approval
for an operation or use, and this is a Part 6 type case, the principle of
development will not be in question. That is true in a Part 1 type case
updated.
once it is deemed or not disputed that the operation or use would be PD.
197 The deliberations will [then] be confined to the matters set out under the
relevant Part and Class as subject to the determination. For example, in
relation to Part 1, Class A, deliberations are confined under paragraph
A.4(7) to the impact of the development on the amenity of any adjoining
Only
premises. It is good practice to identify the relevant matter[s] in a
procedural paragraph, as i
n Annexe G.
correct
National Planning Policy Framework
198 Applications for prior approval under Part 3 are subject to a requirement
that LPAs shall: ‘have regard to the National Planning Policy Framework…
so far as relevant to the subject matter of the prior approv
as al, as if the
application were a planning application.’
of:
199 Reference should be made
to the Framework only as far as it is relevant
10
to the development and prior approval matters. It was held in
East
Hertfordshire DC v SSCLG [2017] EWHC 465 (Admin) that the Framework
January
needs to be applied as specified by the Order and in the context of what
the particular Class seeks to achieve. That an agricultural building is in a
location where permission would not normally be granted for, say,
accessibility reasons is not sufficient reason for refusing prior approval16.
2018
200 At the date of publication of this ITM chapter, th
e GPDO 2015 requires
that regard be had to the Framework in Part 3, paragraph W(10)(b); Part
4, paragraph E.3(10)(b); Part 7, paragraph C.2(7)(b); and Part 14,
paragraph J.4(8)(b). All four paragraphs expressly refer to “the National
16 See also
PPG paragraphs ref ID: 13-026-20140306 to 13-030-20140306; and paragraphs ref ID: 13-101-
20150305 to 13-109-20150305
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 29 of 78
link to page 39
Planning Policy Framework issued by the Department for Communities
and Local Government in March 2012”.
201 There is a footnote to each said paragraph with a hyperlink to the revised
Framework of July 2018. However, given the wording of the effective part
This
of the Order, Inspectors are advised to have regard in the first instance to
2012 Framework – and then to take account of th
e revised version as a
material consideration.
publication
The Development Plan
202 A prior approval appeal should not be determined, expressly or otherwise,
on the basis of s38(6) of th
e Planning and Compulsory Purchase Act 2004,
or as though the development plan must be applied; the principle of
development is established through the grant of permission by the Order.
is
frequently
203 It was held in
R (oao Patel) v SSCLG & Johal & Wandsworth BC [2016]
EWHC 3354 (Admin), paragraph 52, that:
“there is no statutory obligation to decide…[a prior approval] application on the
basis of the approach in s38(6)…s70 of the [TCPA90] does not apply to an
application for prior approval, and there is no other provision to like effect for
applications for prior approval. So there
updated. is no means whereby s38(6) can supply
the hook for the application of its decision-making duty. It only applies ‘If regard
is to be had to the development plan…’ [and] there is no such statutory
requirement in relation to prior approvals”
204 Development plan policies may be relevant in prior approval cases, but
only insofar as they relate to the matters. If
Only and where the plan contains
material that is relevant to the planning judgement to be made, it may be
taken into account as a form of evidence for that prior approval matter.
For example, for Part 1, Class A, the development plan would only be
correct
relevant insofar as it sets out material which assists in assessing the
impact of extensions on the amenity of adjacent properties.
Contamination
as
205 Where this is a prior approval matter, the Inspector must determine
of:
whether after the development takes place, taking account of proposed
mitigation, the site will be contaminated land as described in Part 2
10 A of
th
e Environmental Protection Act 1990, and with regard
to Contaminated
January
Land Statutory Guidance which was issued in accordance with s78YA of
the Environmental Protection Act17. If the Inspector determines that the
site will be contaminated, it is necessary to refuse to give prior approval.
2018
Flood Risk
206 As outlined i
n Annexe A below, ‘flooding risk on the site’ is a prior
approval matter in relation to Article 3, Schedule 2, Part 3, Classes M, N,
O, P, PA, Q, R and S; and Part 4, Classes CA and E of the Order.
PPG
17
Environmental Protection Act 1990: Part 2A (Contaminated Land Statutory Guidance), DEFRA (April 2012)
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 30 of 78
paragraph ref ID: 13-116-20180222 provides guidance on whether
planning permission is required for flood protection or alleviation works on
a farm, and states that Schedule 2, Part 6, Class A
of the GPDO sets out
the applicable thresholds for excavation and deposit of waste material.
This
207 T
he PPG states in paragraph ref ID: 7-001-20140306 that, in areas at risk
of flooding or for sites of 1ha or more, developers must undertake a site-
specific Flood Risk Assessment (FRA) to accompany applications for prior
publication
approval for certain types of PD.
208 This requirement is affirmed in paragraph ref ID: 7-049-20150415, which
also notes that, when considering the potential impacts of PD on flood
risk, a LPA may consider making an Article 4(1) Direction to remove PD
rights, in order to protect local amenity or the well-being of an area.
is
209 The PPG paragraph ref ID: 7-007-20140306 notes that applications for a
frequently
change of use of land or buildings are not subject to the Sequential or
Exceptions test, even where the change may be – for example, from a
‘less’ to ‘more’ vulnerable use according to Table 2; paragraph ref ID: 7-
066-20140306.
210 While prior approval applications are not made for a grant of planning
updated.
permission, those made under Part 3, Classes M, N, O, P, PA, Q, R and S
are likely to be considered as change of use applications for the purposes
of the PPG, meaning that it would not be necessary to apply the
Sequential Test18.
211 However, the PPG also expects LPAs to consider, when formulating policy,
Only
which changes of use will be acceptable, having regard to paragraph 157
(6th bullet) of
the Framework, and taking into account the Strategic Flood
Risk Assessment. This is likely to depend on whether developments can be
correct
designed to be safe and that there is safe access and egress.
212 Thus, where a prior approval application under Part 3, Classes M, N, O, P,
PA, Q, R or S would lead to an increase in the vulnerability classification of
as
the development on the site, it may be necessary to take account of local
plan policies as a form of evidence for that prior approval matter.
of:
213 PPG paragraph ref ID: 7-048-20140306 expects the applicant, where a
10
change of use would involve an increase in flood risk through a change to
the vulnerability classification, to show in their FRA that future users of
January
the development will not be placed in danger from flooding throughout its
lifetime. Mitigation measures may be needed.
214 The applicant should show that the change of use will comply with
the
Framework’s flood risk policies, and how any mitigation measures will be
2018
safeguarded and maintained effectively for the life of the development.
18
PPG paragraph ref ID: 7-033-20140306 also states that “the Sequential Test does not need to be applied
for individual developments on sites which have been allocated in development plans through the Sequential
Test, or for applications for minor development or change of use (except for a change of use to a caravan,
camping or chalet site, or to a mobile home or park home site)”.
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 31 of 78
215 In the GPDO 2015, Part 3, paragraph W.(6) requires the LPA to consult
the Environment Agency on applications where flood risk is a prior
approval matter and the site would fall within Flood Zone 2, FZ3 or
‘notified’ areas in FZ1. Paragraph W.(10) requires that any consultation
response is taken into account; W.(13) empowers the decision-maker to
This
impose conditions reasonably related to the prior approval matters.
216 If a prior approval appeal is made in relation to Part 3, Classes M, N, O, P,
publication
PA, Q, R or S, the site is in an area at risk of flooding, and the change of
use would result in an increase in the vulnerability of development, the
FRA should identify how the risk of flooding can be mitigated. If the risk
can be mitigated by imposing conditions or via a planning obligation, prior
approval can be granted. Otherwise, it should be refused.
217 Part 4, Class CA permits development for the provision of a state-funded
is
school for up to three years. Educational establishments are classified as
frequently
‘more vulnerable’ in Table 2 of the PPG. If prior approval is sought for
development under Part 4, Class CA, and the site is in FZ2 or FZ3, the
Sequential Test and, if necessary, the Exception Test, ought to be applied.
218 Part 4, Class CA is subject to the provisions of Part 3, paragraphs W(2) to
W(13), as modified by paragraph CA.2(2), meaning that the Environment
updated.
Agency should again be consulted where appropriate, and conditions may
be imposed in relation to the prior approval matters.
219 Part 4, Class E permits the temporary use of any land for buildings for
commercial film-making, or the provision on such land of temporary
structures, works, plant or machinery. The former would be considered a
Only
change of use, but latter would be operational development.
220 The Sequential Test need not be applied to applications for minor
correct
development
; PPG paragraph ref ID: 7-033-20140306. If substantial
temporary structures are proposed under Part 4, Class E, the development
would be classed as ‘less vulnerable’, meaning that it would be permitted
everywhere except FZ3B, where the Exception Test would be required.
as
221 Part 4, paragraphs E.3(6), (9), (10) and (13) set out provisions relating to
of:
consultation, information required from the developer and conditions.
10
Transport and Highways
January
222 As outlined in Annexe A below, ‘transport and highways impacts’ is a prior
approval matter in relation to Article 3, Schedule 2, Part 3, Classes C, J,
M, N, O, P, PA, Q, R, S and T; and Part 4, Classes CA and E of the Order.
223 MHCLG has advised regard should be had to the
direct transport and
2018
highways impact of the development, and the Framework insofar as it is
relevant to this. The sustainability of the location more generally is not of
direct relevance. The advice was originally given in relation to a query
pertaining to Part 3, Class O, but should be followed wherever ‘transport
and highway impacts’ is a prior approval matter.
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link to page 77 link to page 77
Formal Decision
224 If a prior approval appeal is allowed – or there is a split decision – it is
necessary to specify the nature of the development approved in relation to
This
the correct Parts or Classes of the Order. For example, if dealing with a
change of use to a dwelling under Part 3, Class Q, it would be necessary
to specify if prior approval is granted for Q(a) only or Q(a) and Q(b).
publication
225 It is essential that the decision refers not only to the relevant Part and
Class, but also to Article 3(1) of the GPDO 2015, because it is that which
grants planning permission for the development
; see Annexe G.
226 Consistent with decisions on s78 appeals, a decision allowing the appeal
should refer to the date and reference of the application; it may be helpful
is
in some instances to also incorporate plan reference numbers.
frequently
227 If the appeal is dismissed, irrespective of whether the LPA refused or
failed to determine the application, the standard decision will suffice –
although it will be necessary to specify the element of the development
which is refused prior approval if there is a split decision.
updated.
Conditions
228 The Order imposes conditions on planning permissions granted under
certain Parts and Classes. Such conditions should not be set out in the
formal decision on a prior approval appeal, because the decision is not to
grant planning permission but prior approval only. The decision will enable
Only
the conditions to bite by stating that ‘… prior approval is granted under
the provisions of Article 3(1) and Schedule 2…’
correct
229 To assist the parties, however, particularly the appellant, any relevant
conditions imposed by the Order should be described in the Conclusion or
Conditions section when allowing a prior approval appeal
; see Annexe G.
as
230 Decision-makers have sometimes imposed conditions on prior approval
cases that are not imposed by
the GPDO 2015. The GPDO itself does not
of:
provide any general authority for doing so, but there are specific powers
available to LPAs and Inspectors in the circumstances below: 10
the LPA ‘may grant prior approval unconditionally or subject to conditions
January
reasonably related to the impact of the proposed development on the amenity
of any adjoining premises’ – Part 1, paragraph A.4(12);
the LPA ‘may grant prior approval unconditionally or subject to conditions
reasonably related to the subject matter of the prior approval’ – Part 3,
2018
paragraph W(13), Part 4, paragraph E.3(13), Part 7, paragraph C.2(10) and
Part 14, paragraph J.4(11).
231 For Part 1, Class A, A.3 provides that development is permitted subject to
the condition that the materials used in any exterior work, other than in
the construction of a conservatory, shall be of a similar appearance to
those used in the construction of the exterior of the existing dwelling. It
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would be unnecessary and potentially unreasonable to impose a separate
condition regarding materials.
232 It might be necessary and reasonable to restrict hours of operation, but
only if required to address noise or traffic impacts where such matters are
This
included in the prior approval requirements.
233 It would never be appropriate to require that development is commenced
publication
within a specified period, as per the s91 condition imposed on express
permissions. A permission granted by the Order is continuous while the
Order is in force or re-enacted, and unless the permission is revoked or
withdrawn. Some PD is subject to a condition as to when the development
must begin, and that should be set out in the conclusion to the decision.
234 The GPDO 2015 generally provides that, in respect of relevant Parts and
is
Classes, development must be carried out in accordance with the details
frequently
submitted where prior approval is not required, or in accordance with
details approved. A ‘plans’ condition should only be imposed where this
would be necessary to ensure certainty, for example where minor
amendments have been a consideration.
235 As in any other appeal, it is not possible to impose a positively worded
updated.
condition which requires the making of a planning obligation. However,
taking into account the relevant tests i
n the PPG, negatively-worded
conditions may be imposed in prior approval cases which prevent
development from taking place until a specified matter has occurred. For
advice on how to deal with appeals against non-standard conditions
imposed on prior approval cases see
Appeals against Conditions.
Only
Planning Obligations
correct
236 The PPG advises that, since PD should by nature be generally acceptable
in planning terms, planning obligations would ordinarily not be necessary.
Any entered into should concern matters requiring prior approval and not,
for instance, affordable housing
; paragraph ref ID: 23b-005-20140306.
as
237 Regulation 122(1) of th
e Community Infrastructure Levy Regulations 2010
of:
applies where a relevant determination is made which results in a grant of
planning permission for the development. It does not apply to prior
10
approval determinations where permission is not granted by the LPA or
Inspector but und
er the GPDO 2015.
January
238 Regulation 122(2), which specifies that a planning obligation may only
constitute a reason for permitting the development if it is necessary,
directly related and fairly and reasonably related in scale and kind, does
not apply to prior approval determinations.
2018
239 However, a planning obligation may be proffered, and would need to be
considered in the planning balance, in mitigation of the matters that are
the subject of the prior approval. Such an obligation would not be caught
by th
e Regulation 123(3) pooling restriction. This is again because that
provision only applies to the grant of planning permission.
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240 Where applications are made for express planning permission, positively
worded conditions to require an applicant to enter into a planning
obligation should not be imposed – but negatively worded conditions may
be imposed to that end ‘in exceptional circumstances’ and in relation to
This
complex and strategically important development.
241 In prior approval appeals, it would not be necessary or reasonable to
publication
secure the provision of an obligation even by way of a negatively-worded
condition. It is only necessary to consider whether any obligation provides
the necessary mitigation to prevent the refusal of prior approval.
Other Statutory Duties
European Protected Habitats
is
frequently
242 Article 3(1)
of the GPDO 2015 grants planning permission for the classes
of development described as PD in Schedule 2 subject to Regulations 75-
78 of th
e Conservation of Habitats and Species Regulations 2017.
243 Regulation 75 provides that it is a condition of any planning permission
granted by a general development order made on or after 30 November
updated.
2017 that development which (a) is likely to have a significant effect on a
European site or a European offshore marine site, alone or in combination
with other plans or projects, and (b) is not directly connected with or
necessary to the management of the site must not be begun until the
developer has received written notification of the approval of the LPA
under Regulation 7719.
Only
244 Regulation 78(3)(a) provides that the approval required by Regulation 75
is to be treated for the purposes of the provisions
of the TCPA90 relating
correct
to appeals as approval required by a condition imposed on a grant of
planning permission.
245 Thus, Article 3(1) effectively imposes a pre-commencement condition on
as
all development which is permitted by the GPDO and would affect a
European protected habitat. In such cases, the PD cannot be lawfully
of:
begun until the developer has made a Regulation 77 application and the
LPA is satisfied that the development would have no adverse effect on the
10
integrity of the habitat.
January
246 If it is found that prior approval should be granted on appeal for
development which would affect a European protected habitat, it will be
good practice for the Inspector to establish whether the Regulation 77
process has been followed, and the pre-commencement condition imposed
under Article 3(1) pursuant to Regulation 75 has been complied with.
2018
19 Special Areas of Conservation (SACs) and candidate Special Areas of Conservation (cSACs) designated
pursuant to th
e Habitats Directive; and Special Protection Areas (SPAs), designated pursuant to th
e Wild
Birds Directive. As a matter of policy, the Government has chosen to give the same level of protection to
potential Special Protection Areas (pSPAs); Ramsar sites; and sites identified or required as compensatory
measures for adverse effects on European sites, pSPAs, pSACs and listed or proposed Ramsar sites.
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link to page 33
247 The Inspector can accept the LPA’s evidence as to whether they have
received and approved any Regulation 77 application in respect of the
European protected habitat; it is not necessary to go behind that
conclusion. It would suffice to specify that the provisions of Article 3(1)
and the Regulations have been complied in an ‘Other Matters’ section.
This
248 The Regulation 77 application may be submitted and approved after prior
approval is given for the development; any refusal of the application is
publication
subject to a right of appeal under Regulation 78(3)(a).
249 Prior approval for some types of PD may be granted subject to conditions.
Part 3, paragraph W(13), for example, provides that the LPA may grant
prior approval subject to conditions reasonably related to the subject
matter of the prior approval.
is
250 Regulations 75-78 do not provide a power to impose conditions on the
frequently
grant of regulation 77 approval, so if the appropriate assessment
identifies necessary mitigation measures these would need to be secured
by way of a planning obligation or some other form of binding legal
agreement. However, this will be for the LPA to determine and will be
outside the scope of the prior approval process. Conditions can be
imposed on grants of prior approval, but these must be reasonably related
updated.
to the prior approval matter
(see above).
European Protected Species
251 Regulation 9 of t
he Conservation of Habitats and Species Regulations
2017 imposes a duty on Inspectors to consider relevant Directives20 and
Only
whether there is a reasonable likelihood of European Protected Species21
being present and affected by development that is said to be PD, in a prior
approval or other appeal22.
correct
252 Where there is credible evidence of a reasonable likelihood of protected
species being affected, and the matter has been mentioned but survey
information is missing or inadequate – or suggested mitigation measures
as
are unlikely to be effective, the appeal should generally be dismissed.
of:
UK Protected Habitats and Species
10
253
The Wildlife and Countryside Act 1981 and th
e Protection of Badgers Act
1992 do not impose a general duty of the kind set out in the Habitats
January
Regulations, but an Inspector can draw the appellant’s attention to the
need to comply with those Acts.
254 S40 of th
e Natural Environment and Rural Communities Act 2006
provides:
2018
20
Habitats Directive (Council Directive 92/43/EEC) and th
e Wild Birds Directive (Directive 2009/147/EC)
21 See the list at Schedule 2 of th
e Conservation of Habitats and Species Regulations 2017.
22 “A competent authority must exercise their functions which are relevant to nature conservation, including
marine conservation, so as to secure compliance with the requirements of the Directives”; Regulation 9(1)
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link to page 73
Every public authority must, in exercising its functions, have regard, so far as is
consistent with the proper exercise of those functions, to the purpose of
conserving biodiversity.
255 The s40 duty is similar in scope to those under th
e Conservation of
Habitats and Species Regulations 2017. It could be used as justification
This
for taking the effect on any species listed as a priority species in th
e UK
Biodiversity Action Plan into account in determining a prior approval
appli
publication cation, where the matters include amenity, siting or location.
Listed Buildings
256 S66 of th
e Planning (Listed Buildings and Conservation Areas) Act 1990
provides that:
is
…in considering whether to grant planning permission for development which
affects a listed building o
frequently r its setting, the local planning authority…shall have
special regard to the desirability of preserving the building or its setting or any
features of special architectural or historic interest which it possesses.
257 The s66(1) duty does not generally apply to GPDO casework and would
not be directly relevant for prior approval applications, because planning
permission is granted by Article 3(1) of
the GPDO. However, some
updated.
developments which would otherwise be PD are not so if the building is
listed, as set out in
Annexe F below.
258 Where the prior approval matters include amenity, siting or location, or
design and external appearance, the impact of a development on the
setting of a listed building will need to be ta
Only ken into account, applying the
tests set out in paragraphs 131 and 132 of
the Framework.
Conservation Areas
correct
259 S72 of th
e Planning (Listed Buildings and Conservation Areas) Act 1990
provides that:
as
In the exercise, with respect to any buildings or other land in a conservation area,
of any [functions under the Planning Acts]…special attention shall be paid to the
of:
desirability of preserving or enhancing the character or appearance of that area.
10
260 The impact of development on a conservation area must be considered
only in prior approval cases where the matters are amenity, siting or
January
location, or design and external appearance. As noted above, demolition
of part of a gate or a wall in a conservation area will not be PD.
Human Rights and the Public Sector Equality Duty
2018
261 Human rights and PSED considerations do not come into play when simply
making a determination as to whether development is or would be PD
since there is no discretion; it is a matter of law.
262 The SoS considered the applicability of th
e Human Rights Act 1998 (HRA)
to prior approval appeals in an appeal by Utopia Village Sales Ltd;
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APP/X5210/A/14/2212605. This appeal concerned a Part 3 change of use
from offices to dwellinghouses; then Class J, now Class O.
263 It was argued by local residents that the development would harm their
living conditions and thereby violate their rights under Article 8. The prior
This
approval matters for Class J/O do not include impact on amenity, but
Article 8 provides that:
publication
(1) Everyone has the right to respect for his private and family life, his home and
his correspondence.
(2) There shall be no interference by a public authority with the exercise of this
right except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or the
economic well-being of the country, for the prevention of disorder or crime, for
the prote
is ction of health or morals, or for the protection of the rights and
freedoms of others.
frequently
264 The SoS found in paragraph 14 of his decision that “when an application
for prior approval under Class J is determin
ed the Framework can only be
considered in so far as it addresses the subject matter of prior approval in
question”. Amenity was not a matter in this case.
updated.
265 He therefore stated that “even if there was a case where a grant of prior
approval would lead to a breach of Article 8…section 3 of the [HRA] does
not permit an interpretation of the GPDO whereby the matters relevant to
Article 8, but outside of the subject matter of the prior approval, can be
treated as a basis to refuse prior approval and so avoid the breach.”
Only
266 However, the SoS found in paragraph 15 that the above does not mean
“as a matter of law, the SoS would be obliged to grant prior approval if to
do so would lead to a breach of Article 8… If [he] had concluded that to
correct
grant prior approval in this case would lead to a breach of Article 8, then
he would be prevented from doing so by section 6(1) of the HRA”.
267 The SoS clarified in paragraph 37 that “Class J itself is intended to strike a
as
balance between the competing interests protected by Article 8, and the
wider interests of the community (as well as the property rights of
of:
developers and neighbours) including the advancement of the policy aims
underlying Class J”.
10
268
January
The SoS concluded in paragraph 44 of his decision that he:
“has considered it appropriate to consider this case on its individual merits…and…
to test his expectations about the operation of Class J by reference to the facts of
this case…Having done so, however, he does not consider it to be appropriate for
the same process to be followed in each and every case where an issue is raised
2018
about whether a grant of prior approval would lead to a breach of Article 8…on
grounds of interference with privacy.
“In future, the Secretary of State expects local planning authorities, and
Inspectors hearing appeals against their decisions, to proceed on the basis that
Class J is compatible with Article 8, so that the grant of prior approval in a
particular case will be justified under Article 8(2) by the general benefits of the
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legislation, even in a case where there is a sufficiently substantial impact to raise
an issue under Article 8(1).”
269 Inspectors should proceed in prior approval appeals on the basis that the
relevant Parts and Classes of the Order are compatible with Article 8, so
that the grant of prior approval in a particular case will be justified under
This
Article 8(2) by the general benefits of the legislation, even where there is
a sufficiently substantial impact to raise an issue under Article 8(1).
publication
270 In cases relating to Part 1 and ‘large extensions’, where amenity is a prior
approval matter, it may necessary to consider the impact of a decision to
allow the appeal on the human rights of adjacent residents who made
representations. However, the question would be the impact of the
development, and not whether Part 1 itself is compatible with Article 8.
is
271 It was held in
R (oao Patel) v SSCLG & Billy Johal & Wandsworth BC
frequently
[2016] EWHC 3354 (Admin) that the Inspector is not obliged by s149 of
th
e Equality Act 2010 to find some countervailing public benefit to set
against a greater disadvantage before they could reach a lawful decision
on the prior approval appeal. The determination was the same.
272 S149 requires decision makers to have due regard but not ascribe a
particular level of weight to the need
updated. s of people with protected
characteristics, or to achieve an outcome which advantaged them or
disadvantaged them the least. Further information is provided i
n Human
Rights and the Public Sector Equality Duty chapter.
Only
correct
as of: 10 January
2018
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Annexe A – PD Rights subject to Prior Approval and the
Prior Approval Matters
Part 1: Development within the Curtilage of a Dwellinghouse
This
Class A:
Enlargement, improvement or other alteration of a dwellinghouse
A.4(7): impact on the amenity of any adjoining premises
publication
Part 3: Changes of Use
Class C: Retail, betting office, pay day loan shop or casino to restaurant or café
C.2(1): impacts of noise, odour, storage and handling of waste, hours of
is
opening and transport and highways; whether it is desirable for the building
to change use because of
frequently the impact on the provision of services of the sort
that may be provided by A1 or A2 uses or the sustainability of a key
shopping area; siting, design and external appearance
Class J: Retail or betting office or pay day loan shop to assembly and leisure
J.2(1): impacts of noise, hours of opening, transport and highways; and
updated.
whether it is desirable for the building to change use because of the impact
on the provision of services of the sort that may be provided by A1 or A2
uses or the sustainability of a key shopping area
Class M: Retail and specified
sui generis uses to dwellinghouses
Only
M.2(1); transport and highways impacts; contamination and flooding risks;
whether it is desirable for the building to change use because of impact on
the provision of services of the sort that may be provided
correct by A1 or A2 uses
or the sustainability of a key shopping area; design or external appearance
Class N: Specified
sui generis uses to dwellinghouses
as
N.2(1): transport and highways impacts; contamination and flooding risks;
design or external appearance
of:
10
Class O: Offices to dwellinghouses
January
O.2(1): transport and highway impacts; contamination and flooding risks;
impacts of noise from commercial premises on the intended occupiers
Class P: Storage or distribution centre to dwellinghouses
2018
P.2(b): air quality impacts on the intended occupiers; transport and
highways impacts; contamination and flooding risks; noise impacts; where
the LPA considers the building is located in an area that is important for
providing storage, distribution, industrial or a mix of those services,
whether the introduction of, or an increase in, a residential use of premises
in the area would have an adverse impact on the sustainability of the
provision of those services.
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Class PA: Premises in light industrial use to dwellinghouses
PA.2(1)(b): transport and highways impacts; contamination and flooding
risks; noise impacts; whether the building is considered to be within an area
that is important for providing industrial, storage, distribution or a mix of
This
those services; whether the introduction of, or an increase in, a residential
use of premises in the area would have an adverse impact on the
sustainability of the provision of those services
publication
Class Q: Agricultural buildings to dwellinghouses
Q.2(1): transport and highways impacts; noise impacts; contamination and
flooding risks; whether the location or siting of the development makes it
impractical or undesirable for the use of the building to be changed; and
design or external appearance
is
frequently
Class R: Agricultural buildings to a flexible commercial use [exceeding 150m2]
R.3(1)(b): transport and highways impacts; noise impacts; contamination
and flooding risks
Class S: Agricultural buildings to state-funded school or registered nursery
updated.
S.2(1)(b): transport and highways impacts; noise impacts; contamination
and flooding risks; whether the location or siting of the development makes
it impractical or undesirable for the use of the building to be changed
Class T: Business, hotels etc to state-funded school or registered nursery
Only
T.2(1)(b): transport and highways impacts; noise impacts; contamination
risks
correct
Part 4: Temporary Buildings and Uses
Class CA: Temporary state-funded school on previously vacant commercial land
as
CA.2(1)(b): transport and highways impacts; noise impacts; contamination
of:
and flooding risks; siting and design
10
Class E: Temporary use of buildings or land for film-making purposes
January
E.2(1)(2): schedule of filming dates and hours of operation; transport and
highways impacts; noise impacts; light impacts; and flooding risks
Part 6: Agricultural and Forestry
2018
Class A: Agricultural development on units of 5 hectares or more
A.2(2)(i): siting, design and external appearance of the building, or siting
and means of construction of the private way, or siting of the excavation or
deposit or the siting or appearance of the tank, as the case may be
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Class B: (Specified) agricultural development on units of less than 5 hectares
B.5(2): siting, design and external appearance of the building as extended,
or the siting and means of construction of the private way
This
Class E: Forestry developments
E.2(1)(a):
siting, design and external appearance of the building as
publication
extended, or the siting and means of construction of the private way
Part 7: Non-Domestic Extensions, Alterations etc
Class C: Erection of click and collect facilities
C.2(1): siting, design and external appearance
is
frequently
Part 9: Development Relating to Roads
Class D: Facilities for the collection of tolls
D.2(a): siting, design and external appearance
updated.
Part 11: Heritage and Demolition
Class B: Demolition of buildings, including whether the building is or was last
used as a drinking establishment, or drinking establishment with expanded
food provision23
Only
B.2(b): the method of demolition and any proposed site restoration
Part 14: Renewable Energy
correct
Class J: Installation or alteration etc of solar equipment on non-domestic
premises
as
J.4(2): design or external appearance, particularly the impact of glare on
occupiers of adjoining land
of:
Part 16: Communications
10
Please see the Mobile Telecommunications chapter for further information.
January
Part 17: Mining and Mineral Exploration
Class B: Other developments ancillary to mining operations
2018
B.2(1): siting, design and external appearance
Class C: Developments for maintenance or safety
23
Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order
2017/619
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C.2(1): siting, design and external appearance
Class F: Coal-mining development on an authorised site
F.3(1): siting, design and external appearance
This
Class G: Coal-mining development by the Coal Authority etc for maintenance or
safety
publication
G.1(1): siting, design and external appearance
Part 18: Miscellaneous Development
Class A: Development under local or private Acts or Order
is
A.1 and A.2: the development ought to be and could reasonably be carried
frequently
out elsewhere on the land; or the design or external appearance would
injure the amenity of the neighbourhood and is reasonably capable of
modification to avoid such injury
updated.
Only
correct
as of: 10 January
2018
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 43 of 78
Annexe B – Part 1: Curtilage of a Dwellinghouse
Interpretation of Part 1
General
This
1.
Part 1 casework must be considered in the light of the definitions set out
in Article 2(1) and in Schedule 2 Part 1, Paragraph I of the Order; and in
publication
latest or the relevant version of th
e Technical Guidance.
2.
As noted above, the demolition
in their entirety of dwellinghouses
constitutes development which requires planning permission. Such works
would be PD if compliant with Article 3 and Schedule 2, Part 11, Class B.
3.
is
The rebuilding of a dwellinghouse falls outside of the permission granted
by Article 3 and Schedule 2, Part 1;
Sainty v MHLG [1963] 15 P&CR 432;
frequently
Larkin v SSE & Basildon DC [1980] JPL 407; and
Hewlett v SSE [1983]
JPL 155. The PD rights granted under Part 1, Class A do not apply if the
permission to use the dwellinghouse as such was granted only by virtue of
Part 3, Class M, N, P, PA or Q; Part 1, paragraph A.1(a).
4.
A.2 excludes certain types of development for dwellinghouses on article
updated.
2(3) land. A.2(a) states that development is not permitted if the ‘cladding
of any part of the exterior of the dwellinghouse with stone, artificial stone,
pebble dash, render, timber, plastic or tiles’. The term ‘dwellinghouse’ is
not qualified here and must be construed as meaning both the existing
dwellinghouse and the dwellinghouse as it would be extended, so that
development consisting of adding such cladding would not be permitted
Only
either on an existing dwelling or an extended one.
5.
It follows that, if a house on Article 2(3) land is already (eg) clad in
correct
render, and an extension is proposed to be rendered in order to comply
with the matching materials condition under A.3(a), the extension would
not be PD because it would conflict with A.2(a).
as
Permitted Development for Householders: Technical Guidance
of:
6.
T
he current edition of the Technical Guidance was published by (the then)
DCLG in April 2017. As with the Order, prior approval appeals shoul
10 d be
considered with regard to the current Technical Guidance. In enforcement
and LDC appeals, however, it may be necessary to refer to the Technical
January
Guidance that pertains to the Order which was in force on the relevant
date. It is guidance, and not a statutory instrument like the Order itself.
7.
The Knowledge Library has retained copies of the origina
l August 2010
version, and the updated versions from
January 2013, October 2013, April
2018
2014 (relating to the GPDO 1995) and
April 2016 (relating to the GPDO
2015). NB: the October 2013 version was itself modified twice. All
versions are available via
the catalogue entry on the Knowledge Library.
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 44 of 78
8.
Where parties cite an interpretation of the Technical Guidance in a past
appeal decision, Inspectors should establish whether a different version of
the Guidance then existed, and if the present appeal can be distinguished.
9.
Where the Technical Guidance is material to casework, this is as an aid to
This
interpretation and application of the Order. The starting point should still
be, so far as possible, the wording of the Order itself. That said, where
the Guidance clearly covers the issue at hand, it should be followed unless
publication
it has either been overturned by the Courts, or it can be demonstrated
that it does not apply to the particular facts of the case.
10. It should be noted that the Technical Guidance not only sets out
definitions of terms as in the Order, but also guidance on terms which are
not defined in the Order. Some terms are listed in the General Issues
section at the start; others are defined in relation to particular Classes.
is
The Guidance also includes diagrams to illustrate terminology and whether
frequently
development would be PD.
11. The phrase ‘so far as practicable’ in Part 1, paragraphs A.3(c), B.2(b) and
H.2(b) is not defined in the GPDO 2015 or Technical Guidance, but the
latter gives some assistance in respect of B.2(b); see below. The onus in
all cases is on the applicant to show that it would not be ‘practicable’ to
updated.
comply with the conditions.
12. The Technical Guidance advises that, when considering whether a
proposal is PD, all of the relevant Parts and all the Classes within those
Parts need to be taken into account.
Only
Eaves 13. There are two definitions for eaves in th
e Technical Guidance. In relation
correct
to Class A, the Guidance explains that for the purpose of measuring
‘height’ from ‘ground level’, ‘the eaves of a house are the point where the
lowest point of a roof slope, or a flat roof, meets the outside wall. Eaves
height is measured from natural ground level at the base of the outside
as
wall to the point where that wall would meet the upper surface of the roof
slope. Parapet walls and any overhang should be ignored for the purposes
of:
of measurement’; see also Article 2(2). There is nothing in Schedule 2,
Part 3, Class Q or Article 2 to suggest that eaves would not be counted in
10
“dimensions”.
January
14. The Technical Guidance also states that, for the purposes of Class B and
condition B.2(b), the measurement of an enlargement to the roof should
be made along the original roof slope from the outermost edge of the
eaves (the edge of the tiles or slates) to the edge of the enlargement.
Any guttering that protrudes beyond the roof slope should not be included
2018
in this measurement.
15. The latter interpretation of the Order in the Technical Guidance was
successfully challenged in the High Court24, but the Order itself was then
amended such that the Technical Guidance is correct. For enforcement
24
Waltham Forest LBC v SSCLG (QBD) 18 June 2013
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and LDC appeals, the GPDO 2015 is stricter than the GPDO 1995 in
relation to retention of eaves under B.2(b).
Implementing a Separate Planning Permission & Part 1 PD Rights
This
16. Where express planning permission has been given, say for a ground floor
extension to a dwelling, the owners may seek to use their Part 1
allowance first, perhaps by constructing a dormer extension.
publication
17. It was held in
R (oao Watts) v SSETR [2002] JPL 1473 that, in order to
assess whether the latter development was in fact permitted by
the Order,
the question to be answered is whether, from the start of the
development until the time at which it has been substantially completed,
the building has been otherwise enlarged, improved or altered by more
than the specified allowances. If it has, the development would cease to
is
be permitted by the Order and can be enforced against.
frequently
18. Sometimes it is claimed that changes from the permitted plans made to a
dwelling during its erection have been made with the benefit of PD rights
under Part 1. The general principle is that PD rights are not available until
a dwellinghouse has been substantially completed, even if the changes
would have been PD had they been carried out to the completed dwelling;
updated.
R (oao Townsley) v SSCLG [2009] EWHC 3522.
19. The underlying logic is that the dwellinghouse does not exist as such until
it has been substantially completed. It follows from the
Gravesham test
that a partly constructed building could not provide all the facilities
necessary for day to day living. Moreover, once the construction of the
Only
dwellinghouse has departed in a material way from what permission was
granted for, the building has become unlawful and PD rights do not apply.
correct
20. The meaning of ‘substantial completion’ is as set out i
n Sage v SSETR
[2003] UKHL 22:
that the building operation would need to be carried out,
both externally and internally, fully in accordance with the permission. A
different definition applied in
Watts has been superseded by
Sage.
as
Class A – General Considerations
of:
Curtilage
10
21. Curtilage is defined in the current version of the Technical Guidance for
January
Part 1 purposes as:
Land which forms part and parcel with the house. Usually it is the area of land
within which the house sits, or to which it is attached, such as the garden, but for
some houses, especially in the case of properties with large grounds, it may be a
2018
smaller area.
22. Since PD rights only apply when the development fully accords with the
limitations set out in the GPDO 2015, it is implicit that works subject to
Part 1 are within the curtilage of
a dwellinghouse. There cannot be a
de
minimis infringement of that requirement, or indeed any other limitation.
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‘Enlarged Part of the Dwellinghouse’
23. It was held in
Kensington and Chelsea RBC v SSCLG [2015] EWHC 2458
(Admin) that the ‘enlarged part of the dwellinghouse’ does not include the
This
‘original’ building but does include previous enlargements. That judgment
was contradicted i
n Hilton v SSCLG & Bexley LBC [2016] EWHC (Admin),
where it was held that the term refers only to development comprising the
publication
enlargement of a dwellinghouse proposed to be carried out under Class A.
24. Thus, the term ‘enlarged part of the dwellinghouse’ is defined in the
Technical Guidance as ‘the enlargement which is proposed to be carried
out under Class A’.
25. The GPDO 2015 was amended by
the Town and Country Planning
is
(General Permitted Development) (England) (Amendment) Order 2017
frequently
through the insertion of paragraph A.1(ja), which provides that
development is not PD where ‘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)’.
updated.
26. Limitation A.1(ja) applies to extensions subject to prior approval appeals
under A.1(g) – except where information was provided to the LPA under
paragraph A.4(2) before 6 April 2017.
Demolition
Only
27. If operations proposed under Part 1 would involve the partial demolition of
a dwellinghouse, it will be a matter of fact and degree as to whether the
works would be excluded from development and any requirement for
correct
planning permission under s55(2)(g) and Article 3(9).
28. If it is proposed to build an extension under Part 1, Class A following the
partial demolition of the dwellinghouse, the part to be demolished should
as
be considered as a part of the original dwelling, even if the demolition
works themselves would not require planning permission. of:
29. For example, if it is proposed to demolish an original outrigger and replace
10
it with a wider rear extension, then the replacement extension should be
assessed on the basis that it would ‘extend beyond a wall forming a side
January
elevation of the original dwellinghouse’ for the purpose of A.1(j).
Principal, Rear and Side Elevations
30. The limitations set out in A.1(e) to A.1(j) refer to the ‘principal’, ‘rear’ and
2018
‘side’ elevations of the original dwellinghouse; t
he Technical Guidance
assists in interpretation of those terms. There may be more than one ‘rear
wall’, for example, where the original rear wall is stepped. Measurement
must be taken from the part of the wall being extended from.
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31. Similarly, Inspectors are advised to measure the width or depth of the
‘enlarged part of the dwellinghouse’ for the purposes of A.1(e)-(j), and
also for A.1(ja), A.2(b)-(d) and A.4(2), by measuring between the
elevations of the enlargement – and discounting any roof overhang25.
This
32. Where the enlarged part would extend beyond a wall forming a side
elevation of the original dwellinghouse, failure to meet any of the
limitations in A.1(j)(i) to (iii) would take the development out of PD.
publication
33. Paragraph A.1(j)(iii) provides that development is not permitted where
the enlarged part of the dwellinghouse would extend beyond a side
elevation as described and have a width greater than half the width of the
original dwellinghouse. The Technical Guidance indicates that a wall
forming a side elevation of a house will be any wall that cannot be
identified as being a front wall or a rear wall. Where a passageway wall
is
forms a side wall to the original dwellinghouse, paragraph A.1(j) will
frequently
apply, notwithstanding that the wall is covered by a first floor.
34. If part of the original dwellinghouse has been demolished since the
relevant date, the remainder of the dwelling would still count as part of
the original. Any adjoining structure would not be considered as part of
the dwellinghouse, unless the contrary is shown to be the case as a
updated.
matter of fact and degree on the evidence.
35. If the proposed extension would extend beyond the line of an original side
elevation, but that side elevation was previously demolished, or would be
demolished as part of the proposed development, the restrictions in
A.1.(j) would still apply. The limitations to PD are based on the original
Only
dwellinghouse and apply even if part of the original is removed.
36. Inspectors should note that rear extensions need to be assessed against
correct
the restrictions on side extensions where they also extend beyond a side
wall. Whether there is a side wall or not is a question of fact and degree.
Inspectors should be aware that even a very short and/or shallow wall
could constitute a ‘side wall’ for the purposes of the Order.
as
37. The only possible exception would be if an Inspector found, as a matter of
of:
fact and degree, that the protrusion was too shallow to constitute a wall.
A window sill, for example, would not normally constitute a side wall, but
10
a projection in the brickwork might still be identifiable as a wall, even if it
is only one brick deep.
January
Opposite Boundary
38.
Kensington established that the test in A.1(h)(ii) means that there must
be 7m from the rear wall of the application dwelling to the opposite
2018
boundary. This judgment was not contradicted by
Hilton.
25 The roof of the enlargement would be taken into account when measuring height, for example, for the
purposes of A.1(c) and (d). The roof would also be taken into account where there limitations pertaining to
“any part of the structure”; for example, in Part 1, Class D, paragraph D.1(d).
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39. Paragraph A.1(h)(ii) was amended in April 2016 to preclude development
with more than a single storey within 7m of any boundary of the curtilage
of the dwelling being enlarged opposite the rear wall of that dwelling26.
T
he Technical Guidance now states that an enlargement with more than
one storey ‘must be a minimum of 7m away from any boundary of its
This
curtilage which is opposite the rear wall of the house being enlarged.’
Subterranean or Basement Extensions
publication
40. The planning permission granted by Part 1, Class A, for enlargements,
improvements or alterations to a dwellinghouse could potentially allow for
a basement extension subject to the limitations set out in A.1(e) to (ja).
41. It was held in
Eatherley v Camden LBC [2016] EWHC 3108 (Admin) that it
may be necessary to assess whether any engineering works required for a
is
basement extension would be PD under Class A. There had to be a point
frequently
where the excavation, underpinning and support for a basement became
different in character from the enlargement, improvement and alteration
of the dwelling. It is for the decision-maker to decide whether there were
two activities of substance or one as a matter of fact and degree.
Class A – Prior Approval Matters
updated.
No Consultation by LPA
42. As indicated above, if the LPA has not carried out the necessary
consultation, they must be asked to do so via the Case Officer if the
Inspector is minded to allow the appeal. Prior approval cannot be granted
Only
if the correct consultation has not been carried out of the owner or
occupier of any premises or land adjoining the site.
correct
Objections and Impact on Amenity
43. For Part 1, Class A, paragraph A.4(7) is triggered where an objection is
before the decision-maker, or the developer is required to submit further
as
information. An Inspector cannot raise their own concerns or have regard
to the question of amenity unless there had been a representation from a
of:
neighbour which triggers the need for the prior approval.
10
44. Thus, if the LPA has notified neighbouring properties of the proposal but
no objections have been received, and the development could be PD, prior
January
approval would not be required. The appeal would be allowed on the basis
that prior approval is not required and, thus, it would not be possible to
impose conditions.
45. However, if the need for prior approval is triggered by a relevant
2018
representation, then the proposed development should be assessed on the
basis of its impact on the amenity of all ‘adjoining’ premises and land.
Regard must be had to the representation(s), and also to the impact on all
adjoining occupiers, even those who did not make representations.
26
Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2016/332
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Fallback Position
46. While A.4(7) is only triggered when there is an objection or the developer
is required to submit further information, it is still worth bearing in mind
This
that – when addressing any fallback position – the outcome of the prior
approval procedure cannot be guaranteed in the same way as PD without
a pre-commencement condition. Neighbours may change, and so may the
publication
opinions of neighbours.
47. Also, where a proposal might result in severe injury to amenity, the LPA
must have regard to whether the proposed development would be
compatible with Article 8 of the European Convention on Human Rights as
incorporated into domestic law in th
e Human Rights Act 1998.
is
48.
The GPDO must be read under s3 of the Human Rights Act in ‘a way which
frequently
is compatible with the Convention rights’. In order to achieve this, it is
arguably necessary to have regard to impacts on residential amenity
within the prior approval process.
Objective Test
updated.
49. Overall, the assessment of impact on amenity must be objective, ie,
consider the amenities that should reasonably be enjoyed by occupiers of
neighbouring properties generally, rather than subjective preferences.
50. Objections often made in such cases include a claim to a ‘right to a view’
or of a loss in value of adjoining property. It is useful to bear in mind the
Only
observations of Ouseley J in
R (oao) Cummins & others v Camden LBC &
SSETR [2001] EWHC Admin 1116:
correct
"The private view from a window is not of itself regarded as a planning matter.
There may well be a public interest in the protection of the character of an area
which may be affected by a development and the impact on a view from a
window may also be reflected in a wider loss of residential amenity; indeed in
certain circumstances the change of view for an individual may have an impact to
as
such an extent on the residential amenities enjoyed by the property that it does
constitute a planning consideration.
of:
“But normally a change of view from for example, a view over green fields to a
10
view over a new housing estate, is not regarded as a planning consideration even
though it may have a financial impact on the value of the houses which lose the
January
view over hitherto open land. The operation of the planning system would have to
change if such an impact is regarded as determining a civil right by reference to
the value of the property, and yet cannot of itself be considered relevant."
Classes B and C
2018
51. Class B permits ‘additions’ and Class C permits ‘alterations’ to a roof;
works may fall under either or both classes. Parapet walls, railings,
trellises and other barriers will generally be regarded as additions or
alterations to the roof, to be considered under Classes B or C, rather than
Class A; see
Richmond-upon-Thames LBC v SSE & Neale [1991] JPL 948.
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Class B does not apply at all to Article 1(5) land; only Class C grants any
PD rights to the roofs of dwellings in such areas.
52. Class C permits works such as re-roofing in a different style, material or
colour where that would constitute ‘development’ by virtue of a material
This
effect on the external appearance of the building; s55(2)(a)(ii). The
intention of Class C is also to allow the installation of roof lights which
project slightly from the roof plane but do not materially alter the shape of
publication
the dwelling when viewed as a whole, as a matter of fact and degree.
53. Under Class C, PD rights apply to a roof alteration which protrudes by no
more than more than 150mm beyond the plane of the slope of the original
roof, and is no higher at its highest part than the highest part of the
original roof. If roof lights would alter the shape of roof and materially
enlarge the dwelling, the development would be considered under Class B.
is
frequently
Class B
54. For Class B, works do not need to have a volume to be regarded as an
"enlargement" rather than just an alteration. It is not right to regard the
whole empty space enclosed as increasing the cubic content for the
purposes of provisos B.1(c) and (d) (B.1(c).
updated.
55. In
Richmond, the Court held that, even though they provided no more
usable space for the dwelling, the parapet walls appeared to the objective
observer as an enlargement of the dwelling house and so within Class B,
provided they met all the limitations of that Class. The
Richmond case
also indicates that, for the purposes of proviso B.1(a), the height of the
Only
highest part of the existing roof refers to the roof as a whole and not just
the flat roof of the extension.
correct
56. In
R (oao Cousins) v Camden LBC [2002] EWHC 324, it was confirmed
that the correct test was as set out in
Richmond: does the house appear
larger to those outside looking at it. He concluded that the particular
railings did not enlarge the external appearance of the dwelling and so fell
as
within Class C. He conceded that the position might have been different
had a brick parapet wall been constructed, as in
Richmond. The question
of:
of whether parapet walls, railings, trellises and other barriers fall within
Class B or C will need to be assessed as a matter of fact and degree.
10
57. It is sometimes argued that walls, railings and trellises are means of
January
enclosure and are permitted under Class A of Part
2. DCLG advice, which
has not been challenged in the High Court, is that the top of a parapet
wall or other means of enclosure on a flat roof of a single storey extension
must by definition be more than 2m above ground level and therefore
cannot be PD under that heading.
2018
58. Development is not PD under paragraph B.1(d) if the cubic content of the
resulting [from the enlargement to the] roof space would exceed the cubic
content of the original roof space by more than (i) 40m3 in the case of a
terrace house, or (ii) 50m3 in any other case. There is no definition of ‘roof
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space’ – but ‘cubic content’ is defined in Article 2(1) as meaning ‘the cubic
content of a structure or building measured externally’.
59. It was held in
Havering LBC v SSCLG [2017] EWHC (Admin) 1546 that,
when applying B.1(d), “what…is clearly intended is that one looks at the
This
roof rather than any question of roof space, and space is simply added
not to require going into the what might have been originally under the
roof, but the roof itself and any addition or extension to that roof as it
publication
originally stood”. In this case, the proposed dormer should be measured
externally and it would breach B.1(2)(d).
60. Paragraph B.2(b) provides that the enlargement must be constructed so
that:
i. Other than in the case of a hip-to-gable enlargement or an enlargement which
is
joins the original roof to the roof of a rear or side extension (aa) the eaves of
the original room are
frequently maintained or reinstated; and (bb) the edge of the
enlargement closest to the eaves of the original roof is, so far as practicable,
not less than 0.2 metres from the eaves, measured along the roof slope from
the outside edge of the eaves; and
ii. Other than in the case of an enlargement which joins the original roof to the
roof of a rear or side extension, no part of the enlargement extends beyond
updated.
the outside face of any external wall of the original dwellinghouse27.
61.
The Technical Guidance advises on the meaning of “so far as practicable”
for B.2(b)(i)(bb):
“this 0.2m set back will be required unless it can be demonstrated that this is not
Only
possible due to practical or structural considerations…[for example] where a
dormer on a side extension of a house joins an existing or proposed dormer on
the main roof of the house”.
correct
62. The Technical Guidance can also be interpreted to suggest that an ‘L-
shaped dormer’ which connects the main roof of a dwellinghouse to that
of an outrigger or extension would normally be “an enlargement… which
joins the original roof to the roof of a rear or side extension”, meaning
as
that it is exempt from conditions B.2(b)(i)(aa) and (bb) and B.2(b)(ii).
of:
63. In enforcement and LDC appeals concerning B.2(b), it will be necessary
10
for the Inspector to consider how the enlargement is constructed on a fact
and degree basis, and explain their conclusion accurately, including why
January
that might differ from other appeal decisions which appear to concern the
same type of enlargement.
Class E
2018
64. In enforcement and LDC appeals concerning Class E, it may be necessary
to consider whether the development is or would be within the curtilage of
the dwellinghouse as described above.
27 Paragraph B.4 exempts roof tiles, guttering, fascias, barge boards and other minor roof details
overhanging the external wall of the original dwellinghouse from B.2(b)(ii)
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65. Another dispute which arises in such appeals is whether the proposed
building is required for ‘
a purpose incidental to the enjoyment of the
dwellinghouse as such’.
66. The meaning of ‘incidental’ uses is considered in full in th
e Enforcement
This
chapter. In short, the essential feature of an incidental use is that it
should have a functional relationship with the primary use, and the
relationship should be one that is normally found. It is not founded on the
publication
personal choice of the person carrying out both activities together;
Harrods v SSETR [2002] JPL 1258.
67. Where a proposed building within the curtilage of a dwellinghouse would
contain primary living accommodation, such as bedrooms or a kitchen, it
would not normally be considered to be in incidental use – and it would
not be PD under Class E.
is
frequently
68. In
Peche D’or Investments v SSE [1996] JPL 311 it was acknowledged
that while a study room would normally be regarded as an integral part of
the ordinary residential use as a dwellinghouse, there would have to be a
fact and degree assessment as to whether that was the case in each
instance. There was no warrant in the legislation for exclusion of a
particular type of room or building from Class E rights as a matter of law.
updated.
69. It was subsequently held in
Rambridge v SSE & East Herts DC QBD
November 22, 1996 that, in order to comprise PD, all of the building
proposed under Class E must be required for purposes incidental to the
dwellinghouse. A building that is in a mixed use, or used for the provision
of a primary dwellinghouse purpose, such as a bedroom, cannot be PD
Only
under Class E.
70. The Court in
Emin v SSE [1989] JPL 909 confirmed that regard should be
correct
had not only to the use to which the Class E building would be put, but
also to the nature and scale of that use in the context of whether it was a
purpose incidental to the enjoyment of the dwellinghouse.
as
71. The physical size of the building in comparison to the dwellinghouse might
be part of that assessment but is not by itself conclusive. It is necessary
of:
to identify the purpose and incidental quality in relation to the enjoyment
of the dwelling and answer the question as to whether the proposed
10
building is genuinely and reasonably required or necessary in order to
accommodate the proposed use or activity and thus achieve that purpose.
January
72. Paragraph E.1(c) provides that buildings are not PD on ‘land forward of a
wall forming the principal elevation of the original dwellinghouse’. This
limitation covers all of the area in front of the ‘principal elevation’ as
defined in th
e Technical Guidance – usually, but not always the elevation
2018
which fronts the ‘main highway serving the house’.
73. Paragraph E.1(e) applies a height limitation to a ‘dual pitched roof’; the
Technical Guidance specifically states that this limitation should be applied
to hipped roofs, but it does not mention any other roof type. Inspectors
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should take the term as encompassing gabled as well as hipped roofs but
not mansard or gambrel roofs, or roofs with two pitches on each side.
74. The restriction under E.1(e)(ii) on the height of the building within 2m of
the boundary applies to the whole building. It is not possible to sub-
This
divide the building into parts of differing heights. E.1(e) also applies if the
development would comprise works for the ‘maintenance, improvement or
other alteration’ of an existing building which already exceeds the height
publication
limitations – and even if the proposed works would not make serve to
make the building any higher.
is frequently
updated.
Only
correct
as of: 10 January
2018
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Annexe C – Part 3: Changes of Use
1.
Part 3 o
f the GPDO 2015 sets out material changes of use which are
granted planning permission. There have been a number of recent
amendments and additions. All of the permitted changes are subject to
This
limitations and conditions; in some cases, PD rights which would normally
apply under other Parts to the permitted uses (or buildings in such use)
have been removed. Certain classes of permitted change of use import
publication
planning permission for associated building operations.
Prior Approval Requirements
2.
Part 3, Class W sets out the procedure for applications for prior approval
under Part 3. Note that paragraph W.10(b) requires the decision-maker to
‘have rega
is rd to the National Planning Policy Framework…so far as relevant
to the subject matter of the prior approval, as if the application were a
frequently
planning application’.
3.
This means that the policies of
the Framework which are relevant in
considering transport, contamination, flood risk and noise etc should be
taken into account, but not policies of the Framework which are not
defined as relevant to particular Classes.
updated.
4.
Various additional definitions, including of ‘state-funded school’ are given
in paragraph X.
Limitations
Only
5.
Some Classes in Part 3 provide that development is not permitted where
the site is on Article 2(3) land, in a SSSI, in a safety hazard area, a
military explosives storage area28, or if the building is a listed building or
correct
the building / site is or contains a scheduled monument29.
6.
Various classes of PD set out below are subject to limitations as to the
previous use of the building, sometimes on specified dates. For example,
as
Classes M, N, O, P, PA and Q are subject to limitations that the previous
use of the building or site was that from which the change of use to a
of:
dwellinghouse would be permitted from on specified dates, to ensure that
this was the last use of the building and indeed it was a lawful use.
10 This is
a question of fact to be established based on the evidence.
January
7.
In such cases, the previous use which needs to be determined is that
which was subsisting and lawful. Taking Class O as an example, a change
of use from an office to a dwellinghouse will only be PD if the building was
actually and lawfully used as an office at the relevant date. The change of
use would not be PD if the building was used as an office unlawfully or if a
2018
lawful office use had been abandoned or not implemented.
28 The definition of “military explosives storage area” in Article 2(1) is amended by th
e Town and Country
Planning (General Permitted Development) (England) (Amendment) Order 2018
29 The LPA should refuse any application for prior approval where such restrictions apply. Information
regarding a safety hazard area or military explosives storage area should be included in the LPA’s
Questionnaire, as Health & Safety issues relating to any site visit.
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8.
Consideration may need to be given as to whether the building had
become divided into separate planning units, bearing in mind – where
relevant to the Part and Class – that ‘building’ includes ‘part of a building’,
as defined in Article 1(2).
This
9.
Using Class O as an example again, paragraph O.1(b) requires that the
last use was one falling within class B1(a). If the last use of the building
or part of the building subject to the proposed change of use was a mixed
publication
use, the PD right granted under Class O would not apply. If several uses
are carried out within the whole building, but the part of the building
subject to the proposed change of use can be deemed a separate planning
unit which was last in B1(a) use, as a matter of fact and degree, O.1(b)
would be complied with.
10. If there is insufficient evidence to adjudge the planning unit, the appeal
is
can be refused on this basis with reference to paragraph W.(3))b).
frequently
Statement on the ‘Net Increase in Dwellinghouses’
11. Prior approval applications to the LPA in relation to Part 3, Classes M, N,
O, P, PA and Q must be accompanied by a statement specifying the net
increase in dwellinghouses proposed. This does not apply to applications
updated.
made on or before 5th April 2016. The ‘net increase in dwellinghouses’ is
the number of dwellinghouses proposed that is additional to the number
on the site immediately prior to the development; Part 3, W.(2)(ba)30.
12. T
he Town and Country Planning (General Permitted Development)
(England) (Amendment) Order 2018 inserted paragraph W.(2)(bb) to
Only
amend the requirements for the Statement on the Net Increase in
Dwellinghouses for Class Q development.
correct
Curtilage
13. For Classes Q, R and S, ‘curtilage’ is defined in paragraph X as meaning
‘(i) the piece of land, whether enclosed or unenclosed, immediately beside
as
or around the agricultural building, closely associated with and serving the
purposes of the agricultural building, or (ii) an area of land immediately
of:
beside or around the agricultural building no larger than the land area
occupied by the agricultural building, whichever is the lesser.’31
10
14. Similar definitions of ‘curtilage’ are set out in paragraphs P.3 and PA.3 for
January
the purposes of Classes P and PA. It should be clear on any prior approval
application relating to Classes P, PA, Q, R or S which land is subject to the
proposed change of use. If it is not, the application should be treated as
relating to the building only, since ‘any land’ can comprise ‘a building’.
2018
15. The extent of the curtilage should be determined as a preliminary matter,
in accordance with the statutory rather than any common law definition.
The area of land across which there can be a change of use is limited by
paragraphs P.3, PA.3 and X.
30
Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2016/332
31
GPDO, Schedule 2, Part 3, paragraph X
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16. If the application is for a change of use of land which encompasses an
area of land that is larger than the curtilage as defined, the development
cannot be PD; this is the purpose of the text, ‘whichever is the lesser’.
This
17. This definition has the effect that even a particular piece of land which is
closely associated with the building should be excluded for the purposes of
defining the subject matter of the proposal, if including it would mean
publication
exceeding the tolerance set out in the second limb of the definition. The
curtilage must also be ‘immediately beside or around the building’.
Curtilage: Change of Use of the Building only
18. It is open to an applicant to propose a change of use of the building, along
with any associated conversion works, without requesting any change of
is
use of the land within the curtilage of the building at all. The effect of this
frequently
would be that the use of the building would change, but the surrounding
land would remain in the previous use.
19. Under the GPDO 2015, an applicant can propose
a later change of use of
land near to the converted building; this would need to be assessed on
the basis that the land described as being within the curtilage of the
updated.
building meets the relevant definition.
20. Since there is no requirement for a proposed development to include a
curtilage, there can be no need for it to be included within the red line of
the application – it is not correct to refuse an appeal on that basis. In
other words, the GPDO 2015 does not require
there to be a curtilage
Only
beyond the confines of the building. An appeal can be determined within
the terms of the Order and without the need for reference to a curtilage.
correct
Curtilage: Building or Part of a Building
21. Parties may attempt to argue that the entire building, even parts which
are being demolished or not subject to the proposed change of use,
as
should be included for the purposes of defining the area of curtilage under
paragraphs P, PA and X. MHCLG has advised that the policy intent is that
of:
the area to be considered as within the curtilage of the building is limited
to the part of the building which is subject to the proposed change of use.
10
Curtilage: Excluded from the Site Edged Red
January
22. Where the proposed development relates to land within the curtilage of
the building, the Inspector should ensure compliance with the definition in
paragraphs P.3, PA.3 and X, even if the ‘curtilage’ is not shown within the
site edged red. It is not a requirement to identify the curtilage by a red
2018
line, as long as the area is made clear as part of the application.
23. If it is clear that the land does not match the definition of curtilage, for
example because it is too large or not immediately beside or around the
building, the Inspector could refuse the application.
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24. Alternatively, the Inspector might define a more restricted curtilage. The
key point is that the decision must make the extent of the curtilage clear,
so it is apparent which land is subject to the permitted change of use.
Curtilage: Proposed ‘Curtilage’ is Unclear
This
25. As noted above, if it is not clear what land the appellant seeks to include
within the curtilage, the Inspector should conclude that there is no
publication
curtilage, and this need not prevent approval of the change of use of the
building. An appeal decision can approve those parts of the curtilage
which are clear and acceptable, and refuse the remainder.
Curtilage: Whole Site
26. Where it is proposed to change the use of land beside or around the
is
building, the correct approach is to assess the area identified as curtilage
frequently
on a plan against paragraphs P.3, PA.3 and X, rather than looking at the
whole site edged red. Where the red line identifies the overall location of
the site, the Inspector should state that the curtilage shown on the plan is
the area where the change of use is permitted, in order to remove doubt.
27. If the entire site is identified as subject to the proposal, however, then the
updated.
entire site should be considered as the proposed curtilage – and it will
probably fail the curtilage definition.
Curtilage: Curtilage too Large
28. If the land proposed to fall within the curtilage of the building exceeds the
Only
limits of the PD right, it is open to the Inspector to consider whether a
smaller curtilage could be granted or, if that cannot be reasonably
established, whether to dismiss the appeal. correct
Curtilage: Proposed Access
29. Where it is proposed to create a new access to the building subject to the
as
change of use, there will likely come a point where the access would not
be ‘immediately beside or around the building’. Where this is the case
of:
should be assessed on a site-specific, fact and degree basis.
10
30. Any area of land to be included in a proposed access, or any part of an
existing access intended to serve the proposed dwelling, which does not
January
fall within the curtilage, will remain in its existing lawful use. A change of
use of the land to use for residential purposes may require a separate
grant of planning permission.
31. Schedule 2, Part 2, Class B permits the formation, laying out and
2018
construction of a means of access to a highway which is not a trunk road
or classified road – and this PD right would apply in situations where such
an access is required to serve a dwellinghouse permitted under Part 3.
The access would need to be ‘required’ to serve the dwelling, but not
restricted in terms of length.
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 58 of 78
Curtilage: Reasoning and Formal Requirements of the GPDO 2015
32. Where requested in the application or appeal representations, it is best
practice to set out your reasoning with regards to curtilage, in order to
This
remove any doubt. However, this is not required by
the GPDO 2015.
Classes C, M, N and Q – Building Works
publication
Types of Application
33. In the GPDO 2015 as originally made, Classes C, M, N and Q permitted (a)
a change of use of a building;
and (b) building operations reasonably
necessary to use or ‘convert’ the building. If using the words ‘convert’ or
‘conversion’, Inspectors are advised to do so only when describing
is
operations or works which facilitate the change of use – and not when
frequently
referring to the change of use itself.
34. T
he Town and Country Planning (General Permitted Development)
(England) (Amendment) Order 2018 has amended Classes C, M, N and Q
so as to permit (a) the change of use;
or (b) development referred to in
paragraph (a)
together with building operations reasonably necessary.
updated.
35. For change of use only applications, Q(a) only, for example, Inspectors
should not address matters relating to building operations, because the
works fall outside of the application. This applies even if it appears that
building operations may be required to facilitate the change of use.
Only
36. W.(2)(a) states, following the April 2018 amendment, ‘the application
must be accompanied by… a written description of the proposed
development, which, in relation to development proposed under Class C,
correct
M, N or Q of this Part, must [ in the same application ] include
any building or other operations’; emphasis added. For a Q(a) only appeal,
there are not any building or other operations proposed.
as
37. Where C(b), M(b), N(b) or Q(b) applications are made for a change of use
and facilitating operations, the works should then take place with the
of:
change of use. If an applicant applies for prior approval for a change of
use only under Classes C(a), M(a), N(a) and Q(a), and later finds that
10
works are required, they must submit a new prior approval application for
the change of use and operations before the development is commenced.
January
38. Where prior approval is sought for a change of use and operations under
Class C, M, N or Q, prior approval may be granted for the former but not
the combined proposal, even if the operations are necessary.
2018
39. For example, if an appeal is made in respect of Class Q(a), and the
Inspector is satisfied that the prior approval matters in Q.2(1)(a) to (e)
have been adequately dealt with, the Inspector can grant prior approval
for the change of use only. However, if any of those matters require more
information, this could be a ground for refusal under W.(3)(b) for the
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 59 of 78
link to page 61
combined appeal. If a change of use appeal is to be dismissed, it is not
necessary to consider proposed works.
40. If the LPA has refused the application on grounds relating to operational
development when the applicants had made clear that the application
This
related to a change of use only, but the appellant then submits further
information during the appeal process pursuant to operations, the proper
course of action in the interests of openness and fairness would be for the
publication
appellants to make a further application to ensure that interested parties
are aware of all of the relevant information.
41. Multiple prior approval applications can be made for the same building
over time, subject to the relevant limitations for Classes C, M, N and Q.
Internal and Structural Alterations
is
frequently
42. Limitations to the ‘operations reasonably necessary’ are set out in Class
C(b) and paragraphs M.1(e), N.1(d) and Q.1(g) and (i); see also
discussion of demolition or development affecting floorspace below.
43. The PPG provides guidance on what building works are allowed under
Class Q
in paragraph ref ID: 13-105-20180222:
updated.
…the right assumes that the agricultural building is capable of functioning as a
dwelling…It is not the intention of the permitted development right to allow
rebuilding work which would go beyond what is reasonably necessary for the
conversion of the building to residential use. Therefore it is only where the
existing building is already suitable for conversion to residential use that the
building would be considered to have the permi
Only tted development right.
44. Paragraph ref ID: 13-105-20180222 also notes that
correct
For the building to function as a dwelling, it may be appropriate to undertake
internal structural works, including to allow for a floor, the insertion of a
mezzanine or upper floors within the overall residential floor space permitted, or
internal walls which are not prohibited by Class Q.”
as
45. However, the GPDO 2015 makes no such distinction between structural
of:
and non-structural works, and it places no restriction on whether works
are structural or not. Nevertheless, the PPG should be taken into account
10
when considering whether operations are ‘reasonably necessary’ or not.
January
46. From the limited legal authority as to what 'reasonably necessary' means:
1) The operations do not need to be absolutely necessary, in that there may be
several possible courses of action;
2018
2) It then becomes a question of whether the course chosen was one that a
reasonable person would choose.
47. Based on this, if a building is capable of use as a dwelling, it is likely that
the works to facilitate the change of use would be considered reasonably
necessary. However, the nature of those works would still need to fall
within the operations permitted under C(b), M.1, N.1 or Q.1.
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48. Parties might seek to argue that some works are not subject to PD
limitations, because they would comprise internal alterations which are
exempted from the definition of ‘development’ under s55(2)(a)
of the
TCPA90 meaning that planning permission is not required for such works,
This
and is not therefore granted by Order.
49. However, s55(2)(a) applies to works of ‘maintenance, improvement or
publication
other alteration which affect only the interior…or do not materially affect
the external appearance of the building’. However, case law32 indicates
that there is a difference between ‘maintenance’ and rebuilding.
50. The nature and extent of proposed building operations should be assessed
as a matter of fact and degree, to inform a conclusion as to whether they
would amount to development and, if so, be ‘reasonably necessary’ to
is
facilitate the permitted change of use – or fall outside of the PD right.
frequently
51. If the operations would amount to a rebuilding, the prior approval appeal
should be refused on the basis that the proposed development is outside
the relevant Class. It was held in
Hibbitt v SSCLG [2016] EWHC 2853 that
the building must be capable of conversion to residential use without
operations that would amount either to complete or substantial re-building
updated.
of the pre-existing structure or, in effect, the creation of a new building;
see also PPG
paragraph ref ID: 13-105-20180222.
52. Once a permitted change of use has occurred under Classes C, M, N and
Q, the building may be further altered internally without further reliance
on PD rights or any other planning permission.
Only
Demolition and New Foundations
correct
53. Total demolition of the existing building does not fall within Classes C, M,
N or Q, but partial demolition does to the extent reasonably necessary for
the building to function as a dwelling.
as
54. The excavation and installation of foundations are not included in the list
of permitted operations set out in N.1(d) or Q.1(i). New foundations are
of:
likely to go beyond ‘maintenance, improvement or other alteration’ which
would be exempted from the meaning of ‘development’ under s55(2)(a) of
10
the TCPA90 since they would lead to the construction of a new building.
January
55. Underpinning involves the strengthening of the foundations of an existing
building or structure. Again it is considered that such works would be
excluded from PD under N.1(d) and Q.1(i). It might be necessary to
consider whether such works would be excluded from the s55(2)(a)
exemption as a matter of fact and degree.
2018
Floorspace
56. Given the definition of floorspace set out in Article 2(1)
of the GPDO 2015,
the term would include any existing mezzanines or additional storeys.
32
Street v Essex CC [1965] 193 E.G. 537; Larkin v Basildon DC [1980] JPL 407
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 61 of 78
57. If internal improvements or extensions are to be carried out under Class
C, M, N or Q, the resulting floorspace must be taken into account for
C.1(a) and (b), M.1(c) and (d), N.1(b) and (c), and Q.1(b), (c), (d) and
(h) and Q.3 – following th
e Town and Country Planning (General
This
Permitted Development) (England) (Amendment) Order 2018.
58. Paragraphs C.1, M.1, N.1 and Q.1 could restrict any subsequent Class C,
publication
M, N or Q development because the change of use is not PD where the
cumulative floorspace of the existing building would exceed the relevant
limitations. If the original building was extended beyond the limits after
the exercise of PD rights, a later proposal for a change of use under Class
C, M, N or Q would be excluded from PD by C.1, M.1, N.1 or Q.1.
59. For example, a first floor that is added to a retail building to facilitate a
is
permitted change of use would count towards the M.1(d) 150m2 limit,
frequently
because the limitations are to the floorspace subject to the change of use.
Where an additional floor is proposed as part of the conversion works, it is
counted. There is nothing to stop an additional internal floor being added
at a later date, since this would not constitute ‘development’ under s55(2)
of the TCPA90, but it would count towards any later
Class M proposal.
updated.
60. From Article 2(1), the meaning of ‘building’ includes ‘part of a building’ for
Classes C, M, N and Q. Since the limitations under paragraphs C.1, M.1,
N.1 and Q.1 are to the floorspace of the building subject to the change of
use, it is possible to change the use of part of building so long as the
floorspace limits are not exceeded.
Only
61. It was affirmed by the CoA that the floorspace restriction set out under
Q.1(b) ‘is stated to be a restriction on the change of use, not on the size
of the building or buildings in which the change of use occurs’; paragraph
correct
16, Mansell v Tonbridge and Malling BC & others [2017] EWCA Civ 1314.
Class A: Restaurants and Cafes, Drinking Establishments or Hot Food
Takeaways to Shops or Financial and Professional Services
as
62. Class A was amended in May 201633 to omit drinking establishments from
of:
the scope of the PD right. Class AA was introduced to permit changes of
use between drinking establishments and restaurants and cafes described
10
as ‘drinking establishments with expanded food provision’.
January
63. The sale of food will not necessarily suffice for the use of an A4 pub to be
changed to an A3 restaurant; the provision of bar snacks and meals can
be ancillary to an A4 use, as a matter of fact and degree, even when this
is a substantial part of the business.
2018
Class C: A1, A2 or Betting or Payday Loan Shop or Casino to A3
64. As noted above, th
e Town and Country Planning (General Permitted
Development) (England) (Amendment) Order 2018 has amended Class C,
33 Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order
2017/619
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 62 of 78
so as to permit (a) the change of use;
or (b) the change of use and
building operations that are reasonably necessary for the use.
Class J: Retail or Betting or Payday Loan Shop to Assembly & Leisure
This
65. Under paragraph J.1(a), development is not permitted by Class J if the
building was not lawfully used for one of the purposes referred to in
Classes J(a) or J(b) on 5 December 2013, or when last in use, or – if
publication
brought into use after 5 December 2013 – for a period of at least five
years before the date that the development under Class J begins.
Class M: Retail and Specified Sui Generis Uses to Dwellinghouses
66. As noted above, th
e Town and Country Planning (General Permitted
Development) (England) (Amendment) Order 2018 has amended Class M,
is
so as to permit (a) the change of use;
or (b) the change of use and
frequently
building operations that are reasonably necessary for the conversion.
67. Class M was previously amended in April 201634 to include launderettes
within the scope of the right. Under paragraph M.1(a), development is not
permitted by Class M if the building was not lawfully used for one of the
purposes referred to in Class M(a) on 20 March 2013 or when last in use.
updated.
68. Under Class M, the floorspace is limited but not the number of dwellings;
M.1(c) and (d). The units created must fall within the definition of
dwellinghouse – that is, they must be self-contained units of habitation.
Class N: Specified Sui Generis Uses to Dwellinghouses
Only
69. As noted above, th
e Town and Country Planning (General Permitted
Development) (England) (Amendment) Order 2018 has amended Class N,
correct
so as to permit (a) the change of use;
or (b) the change of use and
building operations that are reasonably necessary for the conversion.
70. Development is not permitted by Class N if the building was not lawfully
as
used for one of the purposes referred to in Class N(a) on 19 March 2014
or when last in use; paragraph N.1(a). The PPG was updated in March
of:
2015 in relation on Cla
ss N; paragraph ref ID: 13-102-20150305.
10
Class O: Offices to Dwellinghouses
January
71. Development is not permitted under Class O where the building is on
Article 2(5) land and the application is received on or before 30th May
2019; paragraph O.1(a)35. For other land, paragraph O.1(b) provides that
development is not permitted by Class O if the building was not lawfully
used for a use within class B1(a) on 29 May 2013 or when was last in use.
2018
72. Following DCLG’s (as it then was) announcement on 13 October 2015,
paragraph O.1(c) was removed by the April 2016 amending Order, so as
34
Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2016/332
35 ibid
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 63 of 78
to rescind the 30 May 2016 time limit for the use to begin36. This has
made the previously temporary PD right permanent. Developers who
already have planning permission have three years starting with the prior
approval date within which to complete the change of use.
This
73. Paragraph O.3 provides a definition for ‘commercial premises’ – but makes
no provision for any demolition or rebuilding of the office building.
publication
Noise Issues
74. The GPDO 2015 was amended in April 2016 such that the impact of noise
from commercial premises on the intended occupiers of the development
is a prior approval matter for Class O prior approval applications and
appeals. However, no transitional provisions were put in place and MHCLG
are now of the opinion that, if the application to the LPA was made before
is
6 April 2016, noise issues need not be considered at appeal.
frequently
Class P: Storage and Distribution Centres to Dwellinghouses
75. Under paragraph P.1(a) and (b), development is not permitted by Class P
if the building was not lawfully used solely for a storage and distribution
use on 19 March 2015, or when it was last in use, and the building was
updated.
not so used for a period of least four years before the date that
development under Class P begins.
76. Since Class P only permits a change of use, and given the limited prior
approval matters set out in P2.2.(b), court cases relating to conversion or
rebuilding, such a
s Hibbitt, are not relevant to Class P prior approval
Only
applications. Any building works which amount to development will require
express planning permission.
correct
77. T
he Town and Country Planning (General Permitted Development)
(England) (Amendment) Order 2018 has extended this temporary PD right
by amending paragraph P.1(c) and introducing P.1(k), which provide that
development will not be permitted by Class P if the prior approval date
as
falls on or after 10th June 2019, or the development is not completed
within a period of 3 years starting with the prior approval date37.
of:
78. The 2018 amendment has also amended Article 2(1) of the GDPO 2015 so
10
that the definition of ‘building’ as including part of a building excludes
Class P. Under P.1(d), development is not permitted if the gross floor
January
space of the existing building exceeds 500m2, and that must now be taken
as a limit to the size of the building as a whole. Prior to the 2018
amendment, Class P had to be construed as permitting the change of use
of up to 500m2 of a larger storage and distribution depot.
2018
79. Since the term ‘gross’ floorspace is used in paragraph P.1(d), walls should
be included in the measurements in accordance with the RICS Gross
36
Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2016/332
37 Paragraph P.1(c) previously provided that that development is not permitted if the C3 use is begun after
15 April 2018
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 64 of 78
External Area. The measurement of gross floorspace should also include
any communal residential areas, for example, lifts, stairs and corridors.
Class PA: Premises in Light Industrial Use to Dwellinghouses
This
80. This new right was brought int
o the GPDO in April 201638 but the right
only applies for those applications received by the LPA after 30 September
2017. Development that is subject to applications received by the LPA on
publication
or before 30 September 2017 is not PD. Paragraph PA.1(b) provides that
development is not permitted under Class PA if the building was not used
solely for a light industrial use on 19 March 2014 or when last in use.
81. This is a temporary right; development is not permitted if the prior
approval date falls on or after 1 October 2020; paragraph PA.1(c).
Development under Class PA must be completed within 3 years, starting
is
with the prior approval date.
frequently
82. T
he Town and Country Planning (General Permitted Development)
(England) (Amendment) Order 2018 amends Article 2(1) so that a
building does not include “part of a building” for the purposes of Class PA.
It will still be necessary to address the prior approval matters set out in
PA.2(1)(b)(iv) except in relation to ‘any other part of the building’.
updated.
Class Q: Agricultural Buildings to Dwellinghouses
Limitations
83. As noted above, the
Town and Country Planning (General Permitted
Only
Development) (England) (Amendment) Order 2018 has amended Class Q
so as to permit (a) the change of use;
or (b) the change of use and
building operations that are reasonably necessary for the conversion.
correct
84. Under paragraph Q.1(a), development is not permitted by Class Q if the
site was not used solely for an agricultural use as part of an established
agricultural unit on 20 March 2013, or when last in use, or – if brought
as
into use after 20 March 2013 – for a period of at least ten years before
the date that development under Class Q begins. As noted above, the
of:
agricultural unit should not be confused with the planning unit, which may
in some cases be in mixed use.
10
85. In the GPDO 2015 as originally made, Q.1(c) provided that development
January
was not permitted if: ‘the cumulative number of separate dwellinghouses
developed under Class Q within an established agricultural unit exceeds
3’. The 2018 amendment has introduced the terms “larger” and “smaller
dwellinghouses” which are defined in new paragraph Q.3. Development is
not PD under Class Q now if, within an established agricultural unit:
2018
Q.1(b) – the cumulative number of separate larger dwellinghouses developed
under Class Q exceeds 3 or cumulative floorspace of existing building(s)…subject
to a change of use to a larger dwellinghouse or dwellinghouses exceeds 465m2
38
Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2016/332
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 65 of 78
Q.1(c) – the cumulative number of separate smaller dwellinghouses developed
under Class Q exceeds 5, or the floorspace of any one separate smaller
dwellinghouse exceeds 100m2
Q.1(d) – the development under Class Q, together with any previous
development under Class Q would result in either or both of: (i) a larger
This
dwellinghouse or dwellinghouses having more than 465m2 of floorspace; (ii) the
cumulative number of separate dwellinghouses exceeding 5.
publication
86. As noted above, the 2018 amendment also introduced paragraph W.2(ba)
to require that a statement is submitted with prior approval applications
under Class Q to specify the number of smaller and larger dwellinghouses
proposed, whether previous development has taken place within Class Q
on the established agricultural unit and, if so, the number of smaller and
larger dwellinghouses developed.
is
87. T
he MHCLG’s April 2018 Planning Update Newsletter indicates that the
frequently
Class Q PD right:
‘allows only for: up to 3 larger homes within an overall floor space of 465 square
metres; or up to 5 smaller homes each no larger than 100 square metres; or a
mixture of both providing that no more than 3 larger homes are delivered within
a maximum total of 5 homes.’
updated.
88. It can also be construed that the five dwellinghouses permitted under
Q.1(d)(ii) could comprise one “larger” dwellinghouse that has up to 465m2
floorspace, plus four “smaller” dwellinghouses which each have 100m2
floorspace, creating a total of 865m2 residential floorspace.
Only
89. It should be noted that Class Q permits a change of use of an agricultural
building to a use falling within Use Class C3 (dwellinghouses) – but the
definitions of “smaller” and “larger dwellinghouses” in paragraph Q.3 only
correct
cover dwellinghouses with up to 100 m2 and 100-465m2 respectively.
90. If development is proposed under Class Q for a change of use of an
agricultural building to a dwellinghouse or dwellinghouses with floorspace
exceeding 465m2, the limitations under Q.1(b), (c) and (d)(
as i) would not
apply. The only restriction would be that set out in Q.1(d)(ii) – the
of:
cumulative number of such separate dwellinghouses could not exceed 5.
10
91. The limitations under Q.1 – as originally made and amended – apply only
to the creation of dwellings under Class Q. Any existing dwellings within
January
the established agricultural unit are excluded from calculations of number
and floorspace of dwellings; PPG
paragraph ref ID: 13-104-20150305.
Planning Policy and Guidance
2018
92. The PPG was updated in March 2015 and February 2018 to provide
guidance specifically in relation to Class Q
; paragraphs ref ID: 13-104-
20150305 to 13-109-20150305. It is made clear that the Class Q PD right
does not apply a test on – or the prior approval matters do not relate to
sustainability of location39.
39 Following
East Hertfordshire v SSCLG [2017] EWHC 465 (Admin)
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 66 of 78
93. The prior approval matters set out under Q.2(1) do not include ‘amenity,
but the effect of the development on living conditions may be relevant to
‘whether the location of siting of the building impractical or undesirable’
for the change of use to occur. The PPG advises in paragraph ref ID: 13-
This
109-20150305 that:
‘Impractical reflects that the location and siting would “not be sensible or
publication
realistic”, and undesirable reflects that it would be “harmful or objectionable”…
the location of the building…may be undesirable if it is adjacent to other uses
such as intensive poultry farming buildings, silage storage or buildings with
dangerous machines or chemicals.’
94. Planning policy on green belts i
n the Framework is not relevant to Class Q,
and nor are matters such as housing land supply, agricultural occupancy
is
etc. Such issues should not be referred to except where it is necessary to
state that they are not
frequently relevant and have not been given any weight.
Class R: Agricultural Buildings to a Flexible Commercial Use
95. There are no restrictions within Class R relating to Article 1(5) land. There
is no time limit on when the permitted flexible uses may be begun.
However, development must be considered
sui generis after the change of
updated.
use, such that it would be excluded from any use class as set out in the
Use Classes Order; paragraph R.2(b). PD rights under Part 3 would no
longer apply to the building and a grant of express planning permission
would be required for any further change of use.
96.
Only
The exception to this is in R.2(c), which allows for further changes of use
within Class R, subject to R.3 which requires that notice is given to the
LPA for small sites; or for larger sites, prior approval for specific aspects of
the development. Class R permits a change of use to
correct a flexible
sui generis
use subject to prior approval, and any further change to a different
‘flexible use’ will also be permitted subject to prior approval.
97. It would not be reasonable to impose a condition limiting the development
as
to, for example, use class B1(c), as this is already achieved by Class R. If
prior approval is granted for the change to B1(c), Class R wou
of: ld require
prior approval for any later change of use. This would include changes of
10
use to B1(a) or (b), for example.
January
98. Under paragraph R.1(a), development is not permitted by Class R if the
building was not used solely for an agricultural use as part of an
established agricultural unit on 3 July 2012, or when last in use, or – in
the case of a building brought into use after 3 July 2012, for a period of at
least ten years before the date development under Class R begins.
2018
99. Class R does not permit any operational development associated with the
change of use. Any changes to the external appearance of the building
would require express planning permission and should not be controlled
by condition. A condition to limit lighting would not be reasonable under
Class R, as that is not reasonably related to the prior approval matters.
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 67 of 78
Class S: Agricultural Buildings to State-Funded Schools or Registered
Nurseries
100. Under paragraph S.1(a), development is not permitted by Class S if the
site was not used solely for an agricultural use as part of an established
This
agricultural unit on 20 March 2013, or when last in use, or – if brought
into use after 20 March 2013 – for a period of at least ten years before
the date that development under Class Q begins.
publication
101. The PPG was updated in March 2015 to provide guidance on Class S;
paragraph ref ID: 13-103-20150305.
is frequently
updated.
Only
correct
as of: 10 January
2018
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 68 of 78
Annexe D – Part 4: Temporary Buildings and Uses
Class A
1.
The size and means of construction of a building is highly relevant to Part
This
4, Class A PD rights; the larger and more permanent the building, the less
likely it is to be genuinely ‘required temporarily’ in connection with the
carrying out of development. It is for the appellant to show why the
publication
building is reasonably required. His or her intentions are relevant to that
assessment but must be objectively assessed
; R (oao Wilsdon) v FSS and
Tewkesbury BC [2006] EWHC 2980 (Admin); [2007] JPL 1063.
2.
Where a building or structure is said to be ‘required temporarily’ in
connection with operations, the operations themselves need to be lawful –
as stated
is in paragraph A.1(b) – and to have commenced or be about to
commence. It will be a matter of fact and degree as to whether the
frequently
operations are continuing or can reasonably be held to have ceased at the
time an enforcement notice was issued, such that the building or structure
is in breach of condition A.2(a).
3.
The tolerances for temporary uses in Part 4 do not apply when the
intention is that the development should be permanent;
Tidswell v SSE &
updated.
Thurrock BC [1977] JPL 104. It will be for the appellant to show that the
use was temporary and the PD right was genuinely implemented.
4.
Where an enforcement notice is upheld in respect of a caravan site,
motocross, war games, market or other transitory use of land, on the
basis that – on the facts – there is an intermittent permanent rather than
Only
a temporary use, and there is no Article 4(1) Direction in force, the
developer can still implement PD rights. Again it is for the developer to
show that it is a genuine implementation of temporary use rights and not
correct
a recommencement of the prohibited permanent use40.
5.
The developer could still utilise Part 4 rights even if there is no express
saving in the requirements of the enforcement notice;
Cord v SSE [1981]
as
JPL 40. A notice cannot take away lawful use rights. Under s181(2), a
notice can only require that an alleged use be discontinued permanently
of:
‘to the extent that it is in contravention of Part III’. The implementation of
a temporary use permitted under the Order (and thus in accordance
10 with
s60) is not in contravention of Part III of the Act.
January
6.
In other words, while unlawful uses do not benefit from PD rights under
Article 3(5)(b), this does not apply where the unlawful permanent use is
carried out on a temporary basis in accordance with Part 4, Class B. The
temporary use rights in Class B subsist alone and are not related to any
other existing unlawful use.
2018
7.
The presence of permanent buildings and facilities, and changes to the
character of the land may be relevant as to whether the proposed use is
temporary within Part 4 or a permanent change of use – but only when
40 In that situation, s180(1) would apply such that the enforcement notice would cease to have effect so far
as inconsistent with the permission for temporary use granted under Part 4.
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 69 of 78
the permanent building or changes would make it impossible to revert to
the previous normal use between occasions when the new use occurs41.
8.
If physical changes have occurred such that it would be impossible to
revert to the previous normal use, a material change of use will have
This
occurred from the previous use, even if the new use takes place on 28
days or less a year.
publication
9.
If physical changes take place which do not prevent the normal use from
being carried out for most of the year, Part 4 Class B PD rights would
apply to another use which does not take place for more than 28 days;
Ramsay v SSETR & Suffolk Coastal DC (No. 2) [2002] EWCA Civ 118.
10. Class B provides that ‘the use of land for any purpose for not more than
28 days in total is PD, except in relation to the uses specified in Class B(a)
is
and B(b), where the limit is 14 days. In considering whether either or both
frequently
limits have been exceeded, it is appropriate to look at the planning unit
and take into account the aggregate of the occurrence of different uses.
11. In a LDC appeal under s191, where uses undertaken were similar to B(b)
uses but did not comply with the limitations in B.1(d), it was held that
they could not be aggregated with permitted B(b) uses to claim a level
updated.
activity in excess of 14 days in any one year over the necessary ten year
period, such that the uses would be immune from enforcement action;
Miles v NAW & Caerphilly CBC [2007] EWHC 10 (Admin).
Only
correct
as of: 10 January
2018
41 See th
e Enforcement chapter for the meaning of ‘normal use’.
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 70 of 78
link to page 13
Annexe E – Part 6: Agriculture and Forestry
1
Having established whether the site is ‘agricultural land’ and in an
‘agricultural unit’, in accordance with
the advice above, it would then be
necessary to establish whether the development would be of the type
This
permitted under Class A(a) and (b), or Class B(a) to (g).
2
From there, if there is a clear breach of one of the limitations to PD in
publication
paragraphs A.1 or B.1; it would be appropriate to go straight to that
point;
Fayrewood Fish Farms Ltd v SSE & Hants CC [1984] JPL 267. In an
enforcement appeal on ground (c), it is only necessary for there to be
failure on one limitation in Part 6, and it may be appropriate to go directly
to where the failure is clear.
3
is
In such a situation, even if it is questioned as to whether the development
would be ‘reasonably necessary for the purposes of agriculture’, the
frequently
following text could be used:
Even if I were to accept the contention that the development was reasonably
necessary…it would not benefit from Part 6 because …
4
It is critical to show clear and logical analysis of the each test in Part 6,
updated.
and conclude on each appropriate, particularly where the representations
are less than adequate in identifying the correct criteria.
5
The types of agricultural development for which prior notification is
required under Part 6, Class A are set out at paragraphs A.2(2)(a) to (d)
and further qualified at A.2(3).
Only
6
The limits to the size of floorspace permitted under Classes A and B have
been extended by th
e Town and Country Planning (General Permitted
correct
Development) (England) (Amendment) Order 2018.
Classes A & B: ‘reasonably necessary’
as
7
If it is established that a building would be ‘reasonably necessary for the
purposes of agriculture within that unit’, then the structure itself and uses
of:
carried on within it must be reasonably necessary for the use of the land
as an agricultural unit. The whole agricultural unit is the reference point.
10
8
January
There is no requirement that the building is intended to accommodate an
existing agricultural activity, provided there is an agricultural use of the
land and the building is reasonably required for agriculture;
Jones v
Stockport MBC [1984] JPL 274. The applicant is expected to demonstrate
the need for the development.
2018
9
The Inspector is not obliged to contemplate some possible but unlikely
agricultural activity that is not suggested;
Clarke v SSE [1993] JPL 32.
However, he or she should consider what agricultural use the land might
reasonably be put to, and take account of more than the applicant’s
intentions – since they might change, or a future occupier might carry out
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 71 of 78
different activities;
Broughton v SSE [1992] JPL 550.
The assessment can
be based on future agricultural use, unlike that for ‘agricultural land’.
10 The ‘reasonably necessary’ assessment does not carry with it any
connotation of profit or business viability. It also relates to the particular
This
building on the particular unit, as defined at the time, and cannot be
justified in terms of some future larger agricultural unit.
publication
11 The size and nature of the unit may be crucial, as may be the nature of
the proposed building. The size of the building, however, is unlikely to be
a determinative factor; whether a smaller or simpler building would suffice
would be a question of ‘absolutely’ rather than ‘reasonably’ necessary.
12 It was held in
McKay & Walker v SSE & South Cambridgeshire DC [1989]
JPL 590 that size was irrelevant in deciding whether a building was
is
reasonably necessary because the Order permits agricultural buildings up
frequently
to 465m2. However, the scale of engineering operations was held to be
significant in
Macpherson v SS for Scotland [1985] JPL 788.
Class A: ‘of 5 hectares or more in area’
13 In measuring the agricultural unit, the extent of any dwelling (with its
updated.
garden) or other building that is occupied for the purposes of farming by
the person who occupies the unit, and the extent of any dwelling on the
land that is occupied by a farm worker can be included; paragraph D.1.
14 However, if the development is to be carried out on a separate parcel of
land which is less than 1ha in size, it is not PD; A.1(a). Even if it would be
Only
carried out on a parcel that is at least 1ha, that land must not include any
dwellinghouse or garden, because it has to be on
agricultural land.
correct
15 Whether land forms a ‘separate parcel’ is a matter of fact and degree, but
a substantial feature of separation would be necessary, e.g. a road rather
than fences or hedges, for it to be regarded as a separate parcel;
Hancock
v SSE [1989] JPL 99;
Tyack v SSE [1989] 1 WLR 1392.
as
A.1(c): ‘not designed for agricultural purposes’
of:
16 A building is ‘designed’ for the purpose for which its physical layout and
10
appearance fit;
Belmont Farm Ltd v MHLG [1962] 13 P&CR 417 DC. The
importance of the building’s external appearance and layout was January
confirmed in
McKay & Walker.
17 In
Harding v SSE [1984] JPL 503, the Court accepted that ‘designed’
related to appearance and not function. However, the CoA later held in
Clarke that ‘designed for agricultural purposes’ was for the Inspector to
2018
decide as a matter of fact and degree.
18 It is necessary to consider appearance, layout and stated intentions,
although greater weight may be given to one factor over the others. The
test in law is whether the building is designed for the purposes of the
agricultural activities which might reasonably be conducted on the unit.
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 72 of 78
A.1(d): any works or structure (other than a fence) for accommodating
livestock
19 The definition applies to all works for accommodating livestock, and is not
This
limited to some form of habitation or shelter. A hard standing used for
feeding sheep falls within that definition;
Taylor v SSETR [2002] JPL 248.
publication
is frequently
updated.
Only
correct
as of: 10 January
2018
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 73 of 78
Annexe F – Prior Approval Appeals & Heritage
Part 1: Class A (Large Householder Extensions)
1.
The prior approval matter is the impact of the proposed development on
This
the amenity of any adjoining premises. The impact of the development on
a listed building can be taken into account to the extent that amenity is
wide enough to cover historic, architectural, cultural or similar interests;
publication
see also, for example,
PPG advice on advertisements and amenity.
Part 3: Class C (Retail to Café)
2.
The PD right does not apply to listed buildings or within the curtilage of
listed buildings. The prior approval matters include siting, design or
externa
is l appearance of permitted works, which would allow the impact of
the development on the setting of a listed building to be considered in
frequently
making a decision on those works.
Part 3: Class J (Retail to Assembly or Leisure)
3.
The PD right does not apply to listed buildings or within the curtilage of
listed buildings. The matters do not include any which allow the impact of
updated.
the development on the setting of a listed building to be considered.
Part 3: Class M (Retail and Specified Sui Generis Uses to
Dwellinghouses)
4.
The PD right does not apply to listed buildings. For a change of use only,
Only
the matters do not include any which allow for consideration of the impact
of the development on the setting of a listed building. Where conversion
works are involved, the matters include design or external appearance,
correct
which do allow for such consideration.
Part 3: Class N (Sui Generis to Dwellinghouses)
as
5.
The PD right does not apply to listed buildings or within the curtilage of
listed buildings. Otherwise, the issues here are the same as for Class M.
of:
Part 3: Class O (Office to Dwellinghouses)
10
6.
January
The PD right does not apply to listed buildings or within the curtilage of
listed buildings. The matters do not include any which allow the impact of
the development on the setting of a listed building to be considered.
Part 3: Class P (Storage or Distribution to Dwellinghouses)
2018
7.
The PD right does not apply to listed buildings or within the curtilage of
listed buildings. The matters do not include any which allow the impact of
the development on the setting of a listed building to be considered.
Part 3: Class PA (Light Industrial Use to Dwellinghouses)
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 74 of 78
8.
The PD right does not apply to listed buildings or within the curtilage of
listed buildings. The matters do not include any which allow the impact of
the development on the setting of a listed building to be considered.
This
Part 3: Class Q (Agricultural to Dwellinghouses)
9.
The PD right does not apply to listed buildings. Where prior approval is
publication
sought for a change of use only, the matters include whether the location
or siting of the building makes the change of use undesirable. Where prior
approval is sought for a change of use and conversion works, the matters
also include the design and external appearance of the building. It is thus
necessary to consider the impact of Class Q development on the setting of
a listed building, with regards to the relevant matters.
is
Part 3: Class R (Agricultural to Mixed Commercial)
frequently
10. The PD right does not apply to listed buildings. The prior approval matters
do not include any which would allow for consideration of the impact of
the development on the setting of a listed building.
Part 3: Class S (Agricultural to School)
updated.
11. The PD right does not apply to listed buildings. The prior approval
matters do not include any which would allow the impact of the
development on the setting of a listed building to be considered.
Part 3: Class T (Business etc to School)
Only
12. The PD right does not apply to listed buildings. The prior approval
matters do not include any which would allow for consideration of the
correct
impact of the development on the setting of a listed building.
Part 4: Class CA (Temporary State-Funded School on Previously Vacant
Commercial Land)
as
13. The prior approval matters include siting and design, allowing the impact
of:
of the development on a listed building or its setting to be considered.
10
Part 4: Class E (Temporary Uses of Buildings or Land for Film-Making
Purposes)
January
14. The PD right does not apply to listed buildings or within the curtilage. The
prior approval matters include light, which would allow the lighting impact
of the development on the setting of a listed building to be considered.
2018
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 75 of 78
Part 6: Classes A, B & E (Agricultural and Forestry)
15. The prior approval matters include siting, means of construction, design
and / or external appearance, allowing for the impact of the development
This
on a listed building or the setting of a listed building to be considered.
Part 7: Class C (Non-Domestic Extensions etc)
publication
16. The PD right does not apply within the curtilage of a listed building or
Scheduled Ancient Monument. The prior approval matters include siting,
design and external appearance, allowing for consideration of the impact
of the development on the setting of a listed building.
Part 9: Class D (Development Relating to Roads)
is
frequently
17. The prior approval matters include siting, design and external appearance,
allowing for consideration of the impact of the development on the setting
of a listed building.
Part 14: Class J (Renewable Energy)
updated.
18. The PD right does not apply to listed buildings, land within the curtilage of
listed buildings, or sites designated as scheduled monuments. The prior
approval matters include design or external appearance, allowing for
consideration of impact on the setting of a listed building.
Part 16 (Communications)
Only
19. Please see th
e Mobile Telecommunications chapter.
correct
Part 17: Classes B, C, F & G (Mining and Minerals Exploration)
20. The prior approval matters include siting, design and external appearance,
allowing for consideration of the impact of the development on the setting
as
of a listed building.
of:
Part 18: Class A (Miscellaneous Development)
10
21. The prior approval matters include whether the design and external
appearance would injure the amenity of the neighbourhood and is January
reasonably capable of modification to avoid such injury.
2018
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 76 of 78
Annexe G – Template (Part 1, Class A example)
Appeal Ref: []
[Address]
The appeal is made under section 78 of the Town and Country Planning Act
This
1990 against a refusal to grant approval required under Article 3(1) and
Schedule 2, Part 1, Class A, Paragraph A.4 of the Town and Country Planning
(General Permitted Development) (England) Order 2015 (as amended).
publication
The appeal is made by [
appellant’s name] against the decision of [
LPA’s name].
The application ref: [], dated [], was refused by notice dated [].
The development proposed is [].
Decision
is
1. The appeal is allowed and prior approval is [not required] [deemed to be]
[granted] under the provisions of Article 3(1) and Schedule 2, Part 1,
frequently
Class A, paragraph A.4 of the Town and Country Planning (General
Permitted Development) (England) Order 2015 (as amended) for
[
development] at [
address] in accordance with the application [
ref] made
on [
date], and the details submitted with it [
including plan nos…],pursuant
to Article 3(1) and Schedule 2, Part 1, Class A, paragraph A.4(2) [and
subject to the following conditions]:
updated.
OR
2. The appeal is dismissed.
Procedural Matter
Only
3. The provisions of the Town and Country Planning (General Permitted
Development) (England) Order 2015 as amended, und
correct er Article 3(1) and
Schedule 2, Part 1, Class A, Part A.4(7) require the local planning
authority to assess the proposed development solely on the basis of its
impact on the amenity of any adjoining premises, taking into account any
representations received. My determination of this appeal has been made
as
on the same basis.
of:
Reasons
10
4. [
add reasons]
January
Conclusion
5. For the reasons given above, I conclude that the appeal should be allowed
and prior approval [is not required] [is deemed to be granted] [should be
2018
granted].
OR
6. For the reasons given above, I conclude that the appeal should be
dismissed.
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 77 of 78
Conditions – where the appeal is allowed
7. Any planning permission granted for the [
development] under Article 3(1)
and Schedule 2, Part 1, Class A is subject to the conditions A.4(13),
A.4(14) and A.4(15), which specify that the development shall be
This
completed on or before 30th May 2019, that the developer shall notify the
local planning authority in writing of the completion of the development as
soon as reasonably practicable after completion, and such notification shall
publication
include the name of the developer, the address or location of the
development, and the date of completion.
8. [
Any additional conditions to be imposed that are necessary and
reasonable (etc) and related to the prior approval matters]
is
frequently
updated.
Only
correct
as of: 10 January
2018
Version 24 Inspector Training Manual | The GPDO and prior approval appeals Page 78 of 78