What is ‘Permitted Development’ anyway?

There is always some confusion in Planning Practice what ‘Permitted Development’ is. To the lay person development that you do not need to get a planning permission for. To the experienced practitioner it is a bit more than that. However, even to Senior Planning Officers it can be a bit…confusing.

To give a case in point i was dealing with an application for prior notification in Surrey (the case file can be found here).

The Planning Officer sent me this:

Dear Mr Jonathan McDermott

Thank you for your application. Please note Condition 11 of the original planning permission 81/510 restricts the use of the building to Office use only. Therefore a application will be required to remove or vary the planning condition restricting the use to office use before the prior approval application can be considered.

You have also submitted another application for external alteration Ref: PLAN/2016/0478.

I would advise withdrawing both applications and submitting a application to remove or vary the planning condition.

Kind Regards

************** | Planning Officer | Planning Services

My view…Nice try. Here is my responce:

Dear *************

Further to your email and our telcon

The condition prohibits a permitted change within the same Use Class, namely Class II of the 1972 UCO.

Class II of the UCO included: Use as an Office for Any Purpose. – I attach a copy of the 1972 UCO for your reference.

The modern version of this condition would state: The proposed development shall only be used for offices within Class B1(a) and for no other purpose within Class B1 of the Use Classes Order. The purpose being to resist movement within the same class to a seemingly unacceptable alternative use within that class.

The condition does not prohibit any other use as allowed by the General Permitted Development Order 2015 (As Amended). Were it to do so it would directly seek to remove permitted development rights to change use under the 1963 GPDO. A modern condition to this effect would state: No development permitted by Part 3 of Schedule 2 of the General Permitted Development Order 2015 shall be carried out without planning permission from the Local Planning Authority.

It is clear that the condition in question is not seeking a removal of permitted development rights and as such only has the effect of resisting movement within the same use class (namely Class II now Class B1).

The application before you is for a permitted change via prior notification under Part O of Class 3 of Schedule 2 of the 2015 GPDO It does not seek a change of use within the same Class and as such is not in breach of the condition in question.

The Council is reminded that there are two mechanisms to seek the removal of a condition either by direct removal (s73 of the Town and Country Planning Act) or by a new planning permission. Permitted development is not relief from the burden of a planning permission but is in fact a new planning permission granted by development order of the Secretary of State – see S59 of the Town and Country Planning Act 1990. I say again that the application before you is for a permitted change via prior notification under Part O of Class 3 of Schedule 2 of the 2015 GPDO and as such can be determined accordingly.

Finally the Council is reminded that it may only determine within the boundaries of Part W of Class 3 of Schedule 2 of the 2015 order and that compliance with previous conditions is not listed within the determinant criteria.

I look forward to the response from your legal team.

Kind regards

Jonathan McDermott BSc MA MRTPI

Principal Town Planner

Low and behold the Council’s Legal Team agreed with me.

The argument is valid because of what ‘permitted development’ represents which is a planning permission.

S59 of the Town and Country Planning Act makes clear that the SoS may make an order granting planning permission wholesale. The General Permitted Development Order 2015 (as amended) is one such order. The Conditions of Permitted Development are conditions of the Planning Permission granted. The provisions are the restrictions imposed to when PD does and does not apply.

Strangely this is something that is not taught in Planning School!

As these are planning permissions in their own right they have the same effect in terms of control of development. Indeed a whole brace of case-law has been established looking at matters that are close to, but not quite, permitted development.

It also can help with your Affordable Housing strategy. At the same authority as the howler above they have accepted that the prior notification scheme is affordable housing free and the top up scheme of five additional units is also affordable housing free (thanks Reading and West Berkshire for that)

So the next time you are asked by a solicitor whether you have planning permission for a permitted development matter say yes! and point them to S59 of the Act and the GPDO 2015.