Planning law in property transactions - Statutory definition of 'development'

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Overview

The statutory definition of 'development' is essential in planning law for property transactions, determining when planning permission is needed. For those preparing for the SQE1 FLK2 exam, understanding this concept is crucial. This guide delivers a thorough analysis of what defines 'development' under the Town and Country Planning Act 1990, explores key exceptions and automatic permissions, and looks at interpretations from case law. Understanding this topic is vital for advising clients on property development and excelling in the SQE1 FLK2 examination.

Defining 'Development' in Planning Law

The Town and Country Planning Act 1990

The Town and Country Planning Act 1990 (TCPA 1990) outlines the criteria for 'development' with Section 55(1) identifying two main categories:

  1. Operational Development: This includes building, engineering, mining, or other operations on land, affecting the external appearance.

  2. Material Change of Use: This involves a noticeable alteration in the purpose for which land or buildings are used. The significance of the change is often determined by case law.

Interpreting 'Material Change of Use'

'Material change of use' requires detailed assessment. In Kensington and Chelsea Royal London Borough Council v Secretary of State for the Environment (1981), it was noted that even if a property's appearance remains the same, a shift in use affecting its character or surroundings qualifies as development.

Key factors include:

  • Scale and frequency of new use
  • Impact on the neighborhood
  • Changes in traffic or parking
  • Alteration of the property's planning unit

Exceptions to Development

Certain activities are not classified as 'development,' allowing some changes without planning permission.

Statutory Exemptions

Section 55(2) of the TCPA 1990 lists activities excluded from 'development':

  1. Internal Alterations: Changes that don't affect a building's exterior aren't considered development, though the Burroughs Day v Bristol City Council (1996) case clarified that internal works could be if they lead to a significant use change.

  2. Use Within the Same Class: Changes within the same class, according to the Town and Country Planning (Use Classes) Order 1987, aren't development. For example, moving from a retail shop to an office within Class E doesn't need permission.

  3. Incidental Uses: Uses incidental to the enjoyment of a dwellinghouse are exempt. Wallington v Secretary of State for Wales (1991) clarified that the use must be truly secondary to the main residential purpose.

De Minimis Principle

Some changes are too minor to be considered development. The 'de minimis' principle noted in Ewen Developments Ltd v Secretary of State for the Environment (1980) states that trivial changes aren't subject to planning control.

Permitted Development Rights

General Permitted Development Order

The Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO) grants automatic planning permission for specific development types.

Key categories include:

  1. Householder Permitted Development: Homeowners can make certain extensions without needing explicit planning permission, subject to conditions.

  2. Change of Use Permissions: The GPDO allows changes between use classes without applications. For example, Class MA permits changes from Class E to Class C3.

  3. Temporary Uses: Allows for some temporary land uses, like markets, for limited days per year.

Article 4 Directions

Local authorities can limit permitted development rights through Article 4 Directions, used to manage development in sensitive areas.

The impact was explored in R (on the application of Dunnett Investments Ltd) v Secretary of State for Communities and Local Government (2017), highlighting the need for clear justification.

Case Study: Mixed-Use Development Proposal

Consider converting a Victorian house, now offices (Class E), into:

  1. A ground-floor café (Class E)
  2. Three apartments on upper floors (Class C3)
  3. A garden outbuilding for a yoga studio (Sui Generis)

Analysis:

  1. Changing offices to a café within Class E isn't development and doesn't need permission.

  2. Converting upper floors to apartments might fall under Class MA, possibly proceeding without permission, but requires local authority approval for certain concerns.

  3. Building a yoga studio involves operational development and a change to Sui Generis use, needing full permission.

  4. If in a conservation area, Article 4 may apply, requiring express permission.

Practical Considerations for Legal Professionals

Understanding 'development' in planning law is vital for advising clients on property transactions. Key considerations:

  1. Due Diligence: Review a property's planning history, permissions, and enforcement notices.

  2. Risk Assessment: Evaluate proposed uses against the statutory definition and permitted rights.

  3. Strategic Advice: Guide clients in securing permissions efficiently.

  4. Compliance: Ensure adherence to local policies and guidelines.

  5. Dispute Resolution: Represent clients in planning appeals where 'development' is contested.

Conclusion

The statutory definition of 'development' is central to planning control in England and Wales, requiring a strong understanding of legislation and case law. For SQE1 FLK2 exam candidates, this knowledge is crucial for property and planning law. Effective navigation of development definitions and permissions is essential for sound legal advice. As planning law adapts, staying informed on legislative changes and case law developments is key to serving clients and supporting sustainable practices.

Key points:

  • 'Development' includes operational development and material change of use.
  • Some activities, like internal alterations, are exempt.
  • Permitted development rights allow certain developments without permission.
  • Authorities can restrict rights via Article 4 Directions.