Planning law in property transactions - Obtaining planning permission

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Overview

A strong understanding of planning law is vital for legal professionals advising clients on property transactions. This guide explores the process of obtaining planning permission, focusing on important aspects relevant to the SQE1 FLK2 exam.

The Legal Framework and Importance of Planning Law

The Town and Country Planning Act 1990 (TCPA 1990) is the principal legislation governing planning law in England and Wales, complemented by various secondary legislation and case law. Planning permission gives developers the legal right for specific developments on land, making it essential for property transactions.

Defining 'Development' and Its Legal Aspects

Statutory Definition

Section 55(1) of the TCPA 1990 defines 'development' as:

  1. Building, engineering, mining, or other operations on land
  2. Material changes in land or building use

This broad definition determines when planning permission is necessary.

Judicial Interpretation

Courts have shaped the interpretation of 'development'. In Sage v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 22, the House of Lords noted that 'operations' should be understood in its everyday sense, covering a wide range of activities.

Material Changes of Use

The idea of 'material change of use' is particularly significant. In Hertfordshire County Council v Secretary of State for Communities and Local Government [2012] EWHC 3660 (Admin), it was noted that materiality depends on fact and degree, considering factors like:

  • The character of the use
  • Impact on the neighborhood
  • Planning purposes of control

Exemptions from Planning Permission

Not all activities defined as 'development' need planning permission. Major exemptions include:

Permitted Development Rights

The Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO) allows certain developments without a specific application, including:

  1. Home extensions (subject to limits and neighbor consultation)
  2. Changes of use within specified classes
  3. Minor operations (e.g., certain fences, gates, and walls)

These rights can be altered or removed by Article 4 Directions from local planning authorities.

Use Classes

The Use Classes Order 1987 (as amended) categorizes land uses into classes. Changes within the same class aren't considered development and don't need permission.

De Minimis Principle

Some changes are so small they don't constitute development. In Burroughs Day v Bristol City Council [1996] 1 PLR 78, it was decided that painting the exterior of a building in a conservation area wasn't development.

Obtaining Planning Permission

When planning permission is needed, understanding the application process is essential.

Types of Planning Permission

  1. Full Planning Permission: Detailed application for a specific development
  2. Outline Planning Permission: Establishes the principle, with reserved matters to be approved later
  3. Reserved Matters: Detailed aspects of an outline permission (e.g., appearance, landscaping)

Application Process

  1. Pre-application consultation: Engaging with the local planning authority (LPA) and community
  2. Submission of application: Including plans, documents, and fee
  3. Validation and consultation: LPA checks for completeness and consults statutory bodies
  4. Determination: Decision by the planning committee or delegated officer
  5. Appeals: Right to appeal to the Secretary of State if permission is refused

Material Considerations

In determining applications, LPAs must consider factors like:

  • National Planning Policy Framework (NPPF)
  • Local Development Plan
  • Previous planning decisions
  • Impact on amenity, traffic, and environment

In Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281, it was established that personal circumstances are rarely material considerations.

Enforcement and Compliance

Following planning controls is essential, with severe consequences for violations.

Enforcement Notices

Section 172 of the TCPA 1990 allows LPAs to issue Enforcement Notices for breaches of planning control, detailing:

  • The breach and required remedial steps
  • Time limits: 4 years for operational development, 10 years for change of use (with exceptions)
  • Right to appeal to the Secretary of State

Stop Notices

In urgent cases, LPAs may serve Stop Notices under Section 183 of the TCPA 1990, requiring immediate cessation of unauthorized activities. Non-compliance is a criminal offence.

Planning Contravention Notices

Under Section 171C of the TCPA 1990, these notices allow LPAs to gather information about suspected breaches. Inaccurate responses are an offence.

Building Regulations and Their Role

Though separate from planning permission, building regulations are important for property development.

Purpose and Scope

Building regulations ensure buildings meet standards for health, safety, welfare, convenience, and sustainability, covering aspects such as:

  • Structural integrity
  • Fire safety
  • Energy efficiency
  • Accessibility

Application Process

  1. Full Plans application: Detailed plans submitted for approval before work begins
  2. Building Notice: For simpler works, allowing a start with minimal notice

Interaction with Planning Permission

  • Separate processes: Obtaining planning permission doesn't ensure building regulation compliance, and vice versa
  • Listed buildings: May require both planning permission and consent
  • Conservation areas: Special considerations apply to both planning and building regulation compliance

Example: Mixed-Use Development in a Conservation Area

A developer proposes converting a Grade II listed warehouse in a conservation area into residential apartments and ground-floor retail units.

Planning Permission Considerations

  1. Change of use from warehouse (B8) to mixed residential (C3) and retail (E)
  2. Impact on the character of the conservation area
  3. Alterations to a listed building

Building Regulations Aspects

  1. Fire safety measures for mixed-use buildings
  2. Energy efficiency improvements respecting the building's status
  3. Accessibility requirements for commercial and residential units

This scenario requires careful handling of planning and building regulation processes, illustrating the complex interactions between these areas of law.

Conclusion

Proficiency in planning law is key for legal professionals dealing with property transactions. For SQE1 FLK2 exam preparation, it's important to understand:

  1. The definition of 'development' and its legal aspects
  2. Exemptions from planning permission
  3. The process of obtaining planning permission
  4. Enforcement actions and compliance measures
  5. The role of building regulations

Understanding these concepts will enable candidates to effectively analyze scenarios, advise clients, and understand the complexities of planning law in property transactions.