FREE CHAPTER from ‘An introduction to the General Permitted Development Order’ by Ben Fullbrook

08/07/2021

CHAPTER ONE – INTRODUCTION

The purpose of this book

  1. The rights contained within the Town and Country Planning (General Permitted Development) Order 2015 “the GPDO” have been expanded in recent years and this is set to continue as the government sets out to fulfil its ambition of deregulating the planning system and increasing housebuilding. It is likely that most property owners have relied on the GPDO, knowingly or unknowingly, at some point.

  2. This book is aimed at lay people and legal practitioners alike. It is not intended to be an exhaustive treatise on the GPDO or a legal commentary. Instead, it focuses on a number of key, overarching practical principles and a selection of those permitted development rights which are either most frequently used in practice or most likely to be used by people without ready recourse to legal expertise.

What is the GPDO and what does it do?

  1. Perhaps the most basic rule of planning law is that no “development” of land can take place without planning permission.1 The term “development” is very broadly defined as “the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.”2 Examples of activities which have been found to amount to “development” include the hammering of 554 marker stakes into a field3 and the change in use of a building from a single dwellinghouse to a “house let in lodgings”.4

  2. It is important to note that the statutory definition of “development” contains within it some specific exceptions. These include the following, which do not amount to “development”:5

    1. The carrying out for the maintenance, improvement or alteration of any building of works which affect only the interior of the building, or do not materially affect the external appearance of the building;

    2. The use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such;6

    3. The use of any land for the purposes of agriculture or forestry;

    4. Changes of use which are specified in an order made by the Secretary of State;7

  3. Planning permission is therefore not required for any of the above. However, even with these exceptions, it remains the case that planning permission is required for a wide range of fairly ordinary activities, such as erecting a garden shed, laying a driveway and hanging a sign outside a shop. If local planning authorities8 were required to process applications for all of these types of development they would quickly be overwhelmed. As a consequence, Parliament has provided the Secretary of State with the power to make development orders, which have the effect of deeming a grant of planning permission for certain, specified development.9 The principal such order, and the subject of this book, is the GPDO.10

The scope of permitted development rights

  1. The GPDO applies to all land in England.11 Article 3(1) grants planning permission for the development listed in sch. 2 of the Order (subject to a number of exceptions and restrictions – see below). Schedule 2 is currently divided into 21 parts and each part is sub-divided into various classes of development. These are as follows:

    1. Part 1 “Development within the curtilage of a dwellinghouse”. This includes rights relating to the extension and alteration of dwellinghouses (Classes A-D)12, the erection of ancillary buildings (Class E) and hard surfacing (Class F);

    2. Part 2 “Minor operations”. This includes the erection of gates, fences and walls (Class A), the creation of access to a highway (Class B) and exterior painting (Class C);

    3. Part 3 “Changes of use”. This includes changes of use from restaurants/cafes/takeaways to retail (Class A) and vice versa (Class C), shops to financial and professional (Classes D & F) and vice versa (Class E), offices and storage to dwellinghouses (Classes O & P), agricultural buildings to dwellinghouses (Class Q)

    4. Part 4 “Temporary buildings and uses”. This permits the erection of certain temporary structures and temporary uses, such as markets.

    5. Part 5 “Caravan sites and recreational campsites”. This permits the use of land in certain circumstances for campsites and other purposes.

    6. Part 6 “Agricultural and forestry”. This permits certain development, for example the erection of structures on agricultural and forestry land.

    7. Part 7 “Non-domestic extensions, alterations, etc”. This permits certain development relating to shops, offices, warehouses, schools and hospitals.

    8. Part 8 “Transport related development”. This permits certain development relating to railways, ports, airports and waterways. The rights are only available to specified undertakers, not the public at large.

    9. Part 9 “Development relating to roads”. This permits various highway works carried out by highways authorities and undertakers. It also permits works required for the maintenance of unadopted streets or private ways.

    10. Part 10 “Repairs to services”. This permits the carrying out of any works for the purposes of inspecting, repairing or renewing any sewer, main, pipe, cable or other apparatus, including breaking open any land for that purpose.

    11. Part 11 “Heritage and demolition”. This permits certain works to be undertaken for the preservation of “any building or monument”. The development must be carried out by or on behalf of Historic England. It also contains rights relating to the demolition of buildings and certain means of enclosure.

    12. Part 12 “Development by local authorities”. This permits local authorities to, among other things, erect certain structures, including bus shelters, drinking fountains, bins and horse troughs.

    13. Part 12A “Development by local authorities and health service bodies”. This is an emergency measure brought in for the purpose of responding to the Covid-19 pandemic.

    14. Part 13 “Water and sewerage”. This provides a range of rights to statutory undertakers, drainage bodies and the Environment Agency relating to watercourses and sewerage.

    15. Part 14 “Renewable energy”. This includes installation of solar equipment, ground source heat pumps and installation or alteration of wind turbines.

    16. Part 15 “Power related development”. This permits certain development relating to gas and electricity supply.

    17. Part 16 “Communications”. This permits, among other things, the installation, alteration and maintenance of various pieces of communications infrastructure. It also covers the installation of post boxes.

    18. Part 17 “Extensions, alterations etc ancillary to mining operations”. This allows for a range of development relating to mining operations, including certain operations necessary for maintenance or safety.

    19. Part 18 “Miscellaneous development”. This permits development authorised by local or private acts of parliament and other orders, and the erection of certain structures at amusement parks.

    20. Part 19 “General development by the Crown”. This permits a range of development undertaken by or on behalf of the Crown or on Crown land.

    21. Part 20 “Construction of new dwellinghouses”. This permits the replacement of certain buildings with dwellinghouses and the addition of dwellings to other buildings.

  2. It is worth noting that, as well as being used to actually carry out development, the rights contained within the GPDO are frequently used by developers as so-called “fall-back positions” to support applications for planning permissions. In essence, developers seek to persuade planning authorities to grant planning permission for a particular development by inviting a comparison between it and development which they could undertake without planning permission. Planning authorities are obliged to have regard to the existence of “fall-back positions” when determining planning applications, provided there is a likelihood or “real prospect” of those positions being realised if planning permission is refused.13 It has been said that “for a prospect to be a real prospect it does not have to be probably or likely: a possibility will suffice”.14 Whether there is a “possibility” will be a fact specific judgment which will need to be made by the decision maker in each case. Thus, it does not always follow that an applicant will need to specify precisely how he would make use of any permitted development rights available to him.15

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1 Town and Country Planning Act 1990, s.57(1)

2 TCPA 1990, s.55(1)

3 Beronstone Ltd v First Secretary [2006] EWHC 2391 (Admin)

4 Birmingham Corporation v Minister of Housing and Local Government [1964] 1 QB 178

5 TCPA 1990, s.55(2)

6 For more detail on the meaning of the terms “curtilage” and “dwellinghouse” see paragraphs 61–67 below. As to the meaning of “incidental to” see paragraph 90 below.

7 Principally, those changes of use covered by the Town and Country Planning Use Classes Order 1987

8 Typically district, borough and unitary authorities, see TCPA 1990, s.1

9 TCPA 1990, s.59(3)

10 It should be noted that local planning authorities also have the power to make Local Development orders pursuant to the TCPA 1990, s.61; however these are not covered by this book

11 GPDO, art.1(2)

12 Although this does not extend to rebuilding: Sainty v Minister of Housing and Local Government (1964) 15 P. & C.R. 432

13 R v Secretary of State for the Environment Ex p Ahern [1998] Env. L.R. 189, p.9

14 Mansell v Tonbridge & Malling BC [2017] EWCA Civ 1314, §27

15 Ibid.