Overview
English planning law is broadly similar to Irish planning law. However, the resemblance is superficial and there are significant differences in detail in relation to the procedures and processes.
As in Ireland, planning permission is required whenever there are “works” or a “material change of use”. The permission is generally referred to as a “planning consent”. “Works” include carrying on any building, engineering, mining or other operations in, under or over land. Generally, there must be a building activity. Building operations include demolition, rebuilding, structural alterations and additions to buildings. Works which affect the interior of a building only or do not materially reflect the external appearance do not generally require planning permission. Works to the interior of a “listed building” require “Listed Building Consent” which is similar to a planning permission.
A material change of use will also require planning permission. This is a matter of interpretation of the entire circumstances. Whether a change of use is “material” will depend upon its impact on the environment.
Generally Permitted Development Orders
The “Generally Permitted Development Order” (called “GPDO” for convenience) specifies a range of works, use and changes for which planning consent will not generally be required. This Order is amended by the Secretary of State from time to time. Local Authorities can disapply the Generally Permitted Development Order rights thereby requiring planning consent for works which would not otherwise require it. This is commonly done in “conservation areas”.
Each type of permitted development contains detailed provisions which need to be examined. For example, the exemption for enlargement, improvement or other alteration of a dwellinghouse contains limitations in relation to the cubic content, height and total area of the dwellinghouse. There are conditions in relation to the front building line, the position of windows, distance from adjoining properties and boundaries, ground air covered and changes to roofs.
The GPDO sets out particular classes of use. A change of use within a particular class is generally deemed not to be a material change. The order is divided into four parts which correspond broadly with shopping area uses, business and industrial uses, residential uses and social and community uses. The classification makes it more likely that a change of use from one part of the order to another would be regarded as a material change of use.
Planning Consent
Unlike in Ireland, the planning consent decision is usually made by a committee of the elected Councillors rather than by the planning officers (employed officials) of the planning authority. Planning officers are intimately involved in the process but ultimately the members of planning committee make the requisite decisions.
The Council (described as Local Planning Authority) may grant planning consent, either unconditionally, or (more likely) subject to conditions or they may refuse planning consent. The Council decide planning applications in accordance with their Development Plan and other material considerations that are relevant. The Development Plan, as in Ireland, is an overall statement of the plans and objectives for the area as adopted by the Council. The Council also decides in accordance with other material considerations that are relevant.
The planning permission notice must state the full reason for each condition and specify the policies and proposals relevant to the decision. The decision should be decided in accordance with the Development Plan unless there are other material considerations.
A planning consent lasts for the length of time specified which is generally limited to three years (since legislation in 2004). Planning consents is effective for planning purposes only. It does not confer any right to build where any other issue is involved. It may still be necessary to obtain a listed building consent for internal works, building regulation consents, comply with some special rules that apply and comply with terms of the title under which the property is held if there are covenants on the terms of a title.
A planning authority has the power to decline an application if it is similar to another. The power to decline requires that there has been no significant change in the consideration since the other application. Generally, the planning authority may refuse to determine an application within two years of a similar application. It has the power to decline overlapping applications.
A planning authority can impose such conditions as they think fit provided that they are for planning purpose and reasonably related to the development. Where a Planning Authority has refused planning permission, granted it subject to conditions which are objected to, or failed to notify the decision within the prescribed period, (usually eight weeks) the applicant may appeal to the Department of Communities and Local Governments within six months. Only the applicant can appeal. Unlike the case in Ireland, there is no third party right of appeal. Even the owner of the land has no entitlement to appeal.
The appeal will be held by Inspectors of the Department of Communities and Local Governments. It may be determined by written representations or where appropriate by an enquiry. An appeal will be a re-hearing of the application. The local Planning Authority and the applicant are the parties to the app
Permission in Principle (2016 Act)
The Housing and Planning Act 2016 introduced a new pathway to gaining planning permission for residential housing:
‘permission in principle’. n. Permission in principle is a way of quickly ascertaining if, in principle, a developer will be able to develop a plot of land.
The developer still needs to obtain a ‘technical details consent’ to go ahead, although at this stage a LPA will not be able to refuse permission unless there is a significant, unconsidered technical problem.
The Secretary of State has the power, by development order, to grant permission in principle to land that is allocated for development in a ‘qualifying document’:This is to include:
• Land on a brownfield register
• Development plan documents
• Neighbourhood plans
The Secretary of State has the power, by regulation, to allow developers to apply directly to a LPA for permission in principle: this is expected to be limited to minor developments “as defined.
The Secretary of State to issue regulations requiring a LPA to maintain a register of land in their area which fulfils certain criteria. The Government intended to use this power to require LPAs to compile lists of brownfield land in their area to encourage the development of this land.
Further Facilitations (2016 Act)
A development may apply for planning permission directly to the Secretary of State if:
• the LPA is designated by the Secretary of State due to a failure to determine applications for development; or
• the development is ‘major’, a category defined by statutory instrument
The Secretary of State may designate a local authority for its performance in determining applications for categories of development described in regulations made by him (which could now include a separate category of non-major development).” The Secretary of State can also specify applications that will still need to be considered by a LPA, even if the authority has been designated for poor performance.
A planning freedom schemes disapplies or modifies specified planning provisions in order to facilitate an increase in the amount of housing in the planning area concerned.” The Secretary of State can issue such as scheme for a
specified area in England as long as:
• A LPA has requested a planning freedom scheme
• There is a need for housing in the area and the proposed scheme would encourage building
• A consultation has been carried out and the Secretary of State has had a chance to study it
Enforcement
The Planning Authority has extensive powers to enforce breaches of planning permission. There is no equivalent to the Irish legislation whereby any individual can apply to enforce planning legislation in the Circuit or High Court. It is fair to say that planning enforcement is more rigorous in England than in Ireland. The Local Authorities have powers to serve planning contravention notices, breach of condition notices, enforcement notices or to seek an injunction in order to enforce planning laws. It is an offence not to comply with the terms of an enforcement notice.
If a planning law breach involving works is not enforced within four years, it is deemed to be planning compliant. This is stronger than in the position in Ireland which does not provide a deemed grant of planning permission but only confers a limited immunity. In relation to planning law breaches involving changes of use other than those of a single dwellinghouse, the relevant period is 10 years.
Where no enforcement action has been taken within the above time limits it is possible to apply for a certificate of lawful use or development, which is largely equivalent to a planning consent.
