Planning and Building Regulations

* Legislation

The principal legislation is the Town and Country Planning Act 1990 (‘TCPA 1990’), as amended. Much of the detail of the system, however, is to be found under various statutory instruments brought into force under this Act.

* When is planning permission needed?

Planning permission required for the carrying out of ‘development’. In basic terms, planning permission is needed in respect of any activity which constitutes ‘development’. ‘Development’ is defined in s 55 of the TCPA 1990 as follows:

“… the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land…”

This definition includes the erection of new buildings, the demolition of and alteration to existing buildings and/or the making of a material change of use (please refer below) to a property.

Note that provided any one of these elements is present, the possibility of the need for planning permission needs to be considered. It is possible for there to be building works but not a change of use and, equally, for there to be a change of use without building works: in both cases, the proposals may amount to development and so require planning permission. As regards change of use, only a material change in use requires permission. ‘Material’ is not defined and is a question of fact and degree in each particular case.

* Matters which do not constitute ‘development’

Certain matters which would otherwise fall within the definition of development (and so require planning permission) are specifically excluded from that definition by the TCPA 1990 and statutory instruments made under it. In a typical conveyancing transaction (eg: acquiring a place for worship), the most commonly encountered situations where permission is not required either by the statute or by regulation are as follows:

(a) Works for the maintenance, improvement or other alteration of a building which affect only the interior or do not materially affect the external appearance of a building.

(b) Change of use within the same use class as specified by the Town and Country Planning (Use Classes) Order 1987 (SI 1987/764) (‘UCO’). The UCO contains lists of uses grouped together into 13 different use classes, each identified by a letter and a number (thus, A1, A2 and B1 are each separate use classes.). A change of use from one use within a given class to another within the same class will not require planning permission. As an example, a change of use from a newsagent to an ironmonger (both uses within use class A1) will not therefore require planning permission.

(Please note that whilst changing uses within a use class does not amount to development, a change of use between use classes is likely to amount to a material change of use and so will require permission.)

* Matters which do not require express planning permission

The Town and Country Planning (General Permitted Development) Order 1995 (SI 1995/418) (‘GPDO’) automatically grants planning permission to ‘development’ which falls within its scope without the need for an express application. This does not mean that planning permission is not needed: merely that there is no need to make an express application for it to the LPA. The GPDO contains a list of 33 different categories of development for which planning permission is granted in this way. The categories most commonly encountered in a typical conveyancing transaction are as follows:

(a) Minor operations - This permits a variety of minor operations including the erection of fences and gates and the painting of the exterior of a building.

(b) Changes of use - This category permits a variety of changes of use based around the use classes set out in the UCO. It includes change from a use within Class A2 to a use within A1, B2 to B1, A3 to A1 and A3 to A2.

* Obtaining planning permission – General

If an express application for planning permission is required, this should be made to the relevant Local Planning Authority (“LPA”) on a form supplied by that authority. A fee is payable, which is calculated using regulations made under the TCPA 1990. It is not necessary for the applicant to be the owner of the freehold of the land over which permission is sought but, if the applicant is not the landowner, he is required to notify the owner of the application. Regulations made under the TCPA 1990 also impose requirements relating to the content of the application (from 10 August 2006 most applications will need to have a ‘design and access statement’) and also to consultation and publicity (such as the posting of notices on the site in question). Town and Country Planning, Building Regulations and Related Matters

* Listed buildings and conservation areas

Additional controls exist in respect of listed buildings and conservation areas. Where it is considered that a building is of outstanding historic or architectural interest, it may be ‘listed’. Responsibility for this rests with the Department for Culture, Media and Sport and English Heritage (in England). The effect of the listing depends on which grade of listing is given. Part only of a building may be subject to listing (eg, an Adam fireplace). The consequences of listing are, principally, that tighter controls are exercised over development than is the case with an unlisted building and that, in general, the exceptions from development do not apply. Listed building consent must be obtained for development affecting such a building. There are criminal sanctions for non-compliance and no time limits for bringing enforcement proceedings. In addition to the above, the LPA may designate as a conservation area any part of its area which is of special architectural or historic interest, the character or appearance of which it is desirable to preserve or enhance. As a general rule, any non-listed building in a conservation area cannot be demolished without conservation area consent. There may also be other restrictions on development.

* Restrictive covenants and planning

When considering a planning matter, the LPA is not concerned with private controls on the land such as restrictive covenants. An important consequence flows from this which is that it is perfectly possible for planning permission to be granted for a given development, but for that development to contravene a valid restrictive covenant over the land. The contravention of the covenant will need to be dealt with as a separate issue even though the planning issues have been resolved.

* Building regulation control

As a separate issue from the need to obtain planning permission, the need to obtain building regulation consent from the local authority must be considered whenever building works are to be undertaken.

Building regulation control is concerned with the health and safety aspects of the building to be erected or altered, and regulates the types of materials and construction methods used in carrying out the work.

Building regulation consent may be required irrespective of whether the works constitute development for the purposes of planning control. It is not always realised that many ‘home improvement’ schemes will require consent. So replacement windows, new electrical installations (eg a new plug socket), certain drainage and plumbing alterations, will all need consent. On completion of building works for which consent is required, a ‘final certificate’ can be obtained from the local authority. This should be kept safe along with other documents relating to the property as evidence of compliance with building regulation control.

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Consideration for D1 user

1. The first thing to consider is whether on not the property has a D1 use class licence.

Class D1. Non-residential institutions
Any use not including a residential use — a. for the provision of any medical or health services except the use of premises attached to the residence of the consultant or practioner, b. as a crêche, day nursery or day centre, c. for the provision of education, d. for the display of works of art (otherwise than for sale or hire), e. as a museum, f. as a public library or public reading room, g. as a public hall or exhibition hall, h. for, or in connection with, public worship or religious instruction. Class D2. Assembly and leisure
Use as — a. a cinema, b. a concert hall, c. a bingo hall or casino, d. a dance hall, e. a swimming bath, skating rink, gymnasium or area for other indoor or outdoor sports or recreations, not involving motorised vehicles or firearms. |

2. If acquiring a lease, need to find out whether it is a FRI lease, i.e. Full Repairing and Insuring Lease - a lease where the costs of ALL repairs and insurance are borne by the tenant.

3. If it is a lease that is being acquired and it does not have a D1 licence and it is a FRI lease, then in this case, because the landlord are most likely a commercial / institutional landlord, it is highly unlike they will agree to a change of use application (This is mainly because a D1 licence has not commercial value as compare to other use class licence. Furthermore, the landlord will have difficulty in selling the property to other institutional investors or other people. Another problem could occur is if the landlord has a mortgage / charge registered on the property, his lender will most likely not consent to such change of use application.)

4. If a lease is being acquired, needs to find out from the lease whether there is a provision restricting change of use and how such consent should be obtained. Similarly, if there is not restriction on change of use, then you will need to find out from the lease how the consent should be obtained from the landlord.

5. The next thing to consider is whether the property has entered into a restrictive covenant with other neighbours or company so as it cannot apply to change of use to D1 use class licence.

6. If the property does not have a D1 licence and there is not restrictive covenant prohibiting its proposed change of use to D1, consideration needs to be placed on the locality of the property. To change a property to a D1 use class licence within an industrial area is highly unlike. Nevertheless, you can consult the local planning department in relation to the change of use first before committing yourself to the conveyancing transaction.

Disclaimer

The information above is provided for general guidance only and it is not a legal advice. If you need more details on your rights or legal advice about what action to take, please contact an advisor or solicitor.
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