Planning law in property transactions - Matters not constituting development

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Overview

Identifying what does not qualify as development under the Town and Country Planning Act 1990 (TCPA 1990) is vital for legal professionals in property dealings. This knowledge is essential for SQE1 FLK2 exam preparation and practical application. This article examines planning law exemptions, offering a detailed analysis of activities that bypass planning permission, their legal ramifications, and practical applications in property transactions.

The Legal Framework of 'Development'

The TCPA 1990 broadly defines 'development' in section 55(1), including building, engineering, and mining operations, as well as changes in land or building use. However, specific exclusions from this definition are important for property professionals.

Statutory Exemptions

Section 55(2) of TCPA 1990 lists activities not considered 'development':

  1. Internal alterations to buildings
  2. Use of buildings or land within a dwelling's curtilage for purposes related to enjoying the home
  3. Changes of use within the same use class
  4. Certain use changes specified by development order

Activities Exempt from Development

1. Internal Alterations

Changes inside a building that don't impact its external appearance are exempt from development. These include:

  • Renovations
  • Interior redesigns
  • Installing fixtures

Though planning permission may not be needed, compliance with building regulations might be required.

Example: A homeowner turning an attic into a bedroom doesn't usually need planning permission unless external changes occur.

2. Incidental Uses within the Curtilage of a Dwelling House

Actions within a home's boundaries that support the main residential use are generally exempt. Examples include:

  • Transforming a garage into an office
  • Building a shed for storage
  • Adding a pool for personal use

The main consideration is that the use remains secondary to the property's primary residential function.

Example: Converting part of a garden into a vegetable patch is likely exempt if it doesn't significantly alter the property's appearance.

3. Changes within the Same Use Class

The Town and Country Planning (Use Classes) Order 1987 (as amended) groups land uses into classes. Changes within the same class don't qualify as development. For instance:

  • Switching a bookshop to a shoe shop (both Class E)
  • Changing from a restaurant to a café (both Class E)

Recent amendments allow for more flexibility in use changes without planning permission.

Example: A bakery transitioning to a grocery store stays within Class E. This shift is typically considered permitted development.

4. Permitted Development Rights

The Town and Country Planning (General Permitted Development) Order 2015 (GPDO) grants automatic planning permission for certain developments. These rights include:

  • Small home extensions
  • Converting agricultural buildings to residential use
  • Installing solar panels on roofs

These rights can be restricted by:

  • Article 4 Directions from local authorities
  • Conditions from previous permissions
  • Special designations (e.g., conservation areas)

Example: Adding a single-storey extension might fall under permitted development, but an Article 4 Direction could require planning permission.

Special Considerations: Listed Buildings and Conservation Areas

Listed Buildings

For listed buildings, even internal adjustments may need consent, reflecting the tighter restrictions to preserve historical character.

Example: Installing modern amenities in a Grade II listed cottage must align with heritage preservation policies.

Conservation Areas

Changes in conservation areas face more restrictions. Permitted developments may require thorough review to maintain architectural integrity.

Example: Adding a conservatory in a conservation area might need detailed submissions to preserve local character.

Practical Considerations for Property Transactions

Understanding non-development matters plays a significant role in property transactions:

  1. Due Diligence: Buyers and solicitors should perform thorough checks to confirm if planning permission was necessary for completed works.

  2. Risk Assessment: Unpermitted works might impact a property's value and marketability.

  3. Indemnity Insurance: Insurance can be considered to protect against enforcement actions for unpermitted works.

  4. Development Potential: Knowledge of permitted rights and local restrictions informs development potential.

  5. Contractual Terms: Sellers might need to provide warranties or guarantees about planning law compliance.

Case Study: Permitted Development Challenges

Consider this scenario:

Mr. Smith intends to build a rear extension on his terraced house. Under the GPDO, this might be permitted development, but a local Article 4 Direction negates these rights.

Legal Analysis:

  1. The extension falls under Class A, Part 1, Schedule 2 of the GPDO 2015.
  2. The Article 4 Direction removes permitted development rights.
  3. Mr. Smith must apply for full planning permission despite the extension's usual compliance with size limits.

This case highlights the importance of thorough pre-transaction checks for development right restrictions.

Example: Use Classes in Commercial Transactions

Consider a client buying an office (Class E) to convert into a gym (also Class E).

Legal Considerations:

  1. The office-to-gym shift within Class E doesn't require planning permission.
  2. The client should verify:
    • Conditions from the original office permission
    • Restrictive covenants against gym use
    • Building regulations for physical changes

Understanding use classes streamlines transactions and highlights legal issues beyond planning law.

Conclusion

A strong understanding of 'matters not constituting development' is essential for SQE1 FLK2 exam success and effective property law practice. It demands a solid understanding of the TCPA 1990, the GPDO, and their practical effects in transactions. Legal professionals must skillfully manage statutory exemptions, permitted development rights, and local policies. This knowledge improves client guidance, mitigates transactional risks, and reveals development opportunities.

Remember:

  1. Internal changes usually don't need planning permission, but might need building regulations approval.
  2. Incidental uses within residential areas are often exempt, but must remain secondary.
  3. Changes within a use class aren't development, but recent amendments have broadened these categories.
  4. Permitted development rights allow certain activities but can be limited by local authorities.
  5. Listed buildings and conservation areas have stricter rules and may require special permissions.
  6. Knowing these exemptions is vital for diligence, risk assessment, and recognizing development potential.