LPC: ADVANCED COMMERCIAL PROPERTY CHAPTER 2

ADVANCED COMMERCIAL PROPERTY

CHAPTER 2: APPENDIX 1
Legal Practice Course
PLANNING AND ENVIRONMENTAL LAW

Reminder of planning law

1. Planning law

The principal aim of planning law is to control the development or use of land in
order to improve the local environment.

Planning law is primarily administered and enforced by local planning

authorities, which will be the London borough council, the district council, the
metropolitan borough council or the unitary authority council for the area in
which the property is situated, depending on the structure of local government
within any particular area which varies across the country.

The government department currently responsible for the creation of planning

policy and legislation is the Department for Communities and Local Government
(‘DCLG’).

The DCLG is also responsible for Planning Appeals, which are administered by
the Planning Inspectorate.

Planning law is a mixture of planning policy and ministerial guidance issued by

the DCLG along with statute law and secondary legislation. National planning
policies issued by the DCLG are now set out within the National Planning Policy
Framework (‘NPPF’) (which was published on 27 March 2012 and has replaced
the former Planning Policy Statements and Planning Policy Guidance Notes)
and within Circulars.

The primary legislation is:

1. Town and Country Planning Act 1990 (‘TCPA 1990’).
2. Planning (Listed Buildings and Conservation Areas) Act 1990.
3. Planning and Compensation Act 1991 (‘PCA 1991’).
4. Planning and Compulsory Purchase Act 2004 (‘PCPA 2004’).
5. Planning Act 2008 (‘PA 2008’).
6. Localism Act 2011 (‘LA 2011’).
7. Growth and Infrastructure Act 2013 (‘GIA 2013’).

The statutory framework is set out in the TCPA 1990, and the procedures
relating to the planning system are set out in detail in delegated legislation such
as the Town and Country Planning (Use Classes) Order 1987 (‘UCO 1987’),

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(which has been added to and amended by the Town and Country Planning
(Use Classes) (Amendment) (England) Order 2005 (‘UCO 2005’) and, for
England only, amended by the Town and Country Planning (Use Classes)
(Amendment) (England) Regulations 2020 (as amended)) (the ‘2020
Amendment Order’), and the Town and Country Planning (General Permitted
Development) (England) Order 2015 (‘GPDO 2015’).

For the remainder of this Chapter, unless stated to the contrary, all references
to statute are to the TCPA 1990.

2. When is planning permission required?

You should remember the following from your Property Law and Practice
course:

Section 57(1) provides that planning permission is required from the relevant
local planning authority for any ‘development’.

Section 55 defines development 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’.

Development therefore has two separate and distinct parts:

1. carrying out of operations; and
2. a material change of use.

It is important to remember that the same scheme may require planning

permission for both of these components. An example of this would be the
construction of a new factory on previously undeveloped farmland. In this
situation, there would be both operational development (the building of the
factory) and a material change of use (from agricultural to industrial purposes).
Consequently, planning permission for both strands of development would be
needed.

In other situations, there may only be one part of the definition of development
occurring, meaning that planning permission is required just for that single
component.

For example, if a shop was changed into a public house without any building
works taking place, there would be a material change of use needing consent
but no operational development.

Conversely, if building works were undertaken to the exterior of a property but

the use of that property remained the same, there would be operational
development but not a material change of use.

All of these concepts are explored further below. You should consider each set
of circumstances on an individual, case-by-case basis.

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3.1 Building operations

Section 55(1A) provides that the term ‘building operations’ includes:
a) demolition of buildings;
b) rebuilding;
c) structural alterations of, or additions to, existing buildings; and
d) other operations normally undertaken by a person carrying on business
as a builder.

This is a broad definition. There are, however, certain building operations

which do not constitute development:

 s.55(2)(a) - the carrying out for the maintenance, improvement or other

alteration of any building of works which:
a) affect only the interior of the building or do not materially affect the
external appearance of the building; and
b) do not provide additional space underground.

 s.55(2)(g) says that ‘the demolition of any description of building specified

in a direction given by the Secretary of State…’ does not constitute
development.

Mezzanine floors

Since May 2006 the government has brought into force provisions in the PCPA
2004 allowing the Secretary of State to specify circumstances in which
operations that have the effect of increasing the gross floor space of a building
by a specified amount or percentage will be taken to involve ‘development’
within the meaning of the TCPA 1990.

Further regulations now set that specified amount at 200 square metres and
provide that the restriction applies to buildings used for the retail sale of goods
other than hot food. This therefore now prevents the construction of mezzanine
floors by retailers without planning permission if the mezzanine floor increases
the gross floor space by 200 square metres or more.

Before the introduction of these provisions, as the installation of mezzanine

floors usually affects only the interior of a building and will not materially affect
the external appearance of a building, mezzanine floors of any size could be
installed within buildings without having to obtain planning permission first.

3.2 Engineering operations

Operational development also includes engineering operations such as the
formation or laying out of means of access to highways.

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4. The Town and Country Planning (Use Classes) Order 1987

The Town and Country Planning (Use Classes) Order 1987 (‘UCO 1987’)
specifies sui generis and designated use classes and is reproduced in your PLP
Handbook though students whose PLP Handbook was printed prior to January
2021 need to use the Additional Permitted Material available on the VLE for
their assessment as the UCO 1987 was significantly amended on 1 September
2020. Many common uses of land and buildings fall within designated (as
opposed to sui generis) use classes.

A change within one of the use classes specified in the UCO 1987 does not
constitute a “material change of use” and does not therefore constitute
“development” – see s.55(2)(f) Town and Country (Planning) Act 1990.
Therefore planning permission is not required for a change of use which falls
within the same use class. For example, a change of use from a travel agency
to a hairdressers does not require planning permission because both uses are
within Use Class E(a). It is important to remember though that planning
permission may be needed for related building operations which amount to
development in their own right e.g. to the shop front or fascia

Also, not all uses of land and buildings fall into the defined use classes. Those
that do not are known as ‘sui generis’ uses (i.e. the only one of its kind).
Examples of ‘sui generis’ uses include caravan sites, car dealerships, betting
offices, drinking establishments and hot food takeaways. For such ‘sui generis’
uses a change in use to any other use will always constitute development – for
example, a change of use from a car dealership to a shop (constituting a change
from a ‘sui generis’ use to a use within Use Class E(a)) will be ‘development’
and therefore require planning permission.

The effect of the UCO 1987 on the drafting of use clauses in leases

The operation of the UCO 1987 has implications for the drafting of use clauses
in leases where the tenant’s use permitted by the lease is often limited to a
particular class within the UCO 1987. For example, the lease may state that
the permitted user is ‘any use within Class B8 of the Town and Country Planning
(Use Classes) Order 1987’.

As drafted, this would allow use as storage or a distribution centre without the
need for landlord’s consent for change of use.

If the lease is drafted in this way, the lease should state that the reference to
the UCO means the UCO 1987 only, and not any re-enacted order.

This is relevant given the UCO 1987 was amended by the UCO 2005 and also,
more recently, by the 2020 Amendment Order. For example, the 2020
Amendment Order migrated Use Classes A1, A2 and A3 into a new Use Class
E and moved use classes A4 and A5 (which were themselves created by the
2005 Order) into their own sui generis classes. These amendments came into
force on 1 September 2020.

Example: a lease of a public house granted on 25 March 2002 restricted the

use of property to A3 use, and there was no reference to limiting the use class

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to that in the UCO 1987. The UCO 2005 split the originally drafted use class A3
from “use for the sale of food or drink for consumption off the premises” into
three classes:
A3 – use for the sale of food and drink for consumption on the premises;
A4 – use as a public house, wine bar or other drinking establishment and
A5 – hot food takeaways.

The coming into force of the UCO 2005 would mean that the property could only
be used as a restaurant or café. Continued use of the property as a public
house would be a breach of the terms of the lease. Further, from 1 September
2020, use class A3 was migrated into use class E. The poorly drafted user
provision would mean using the property for any use would, arguably, be in
breach of the lease.

5. Material change of use

5.1 What is a material change of use?

Article 3(1) and (for England) 3(1A) of the UCO 1987 confirms that a material
change of use is where the use of a property changes from one use class to
another.

Therefore, where a change in use occurs, and both the old use and the new
use fall within the same use class, this would not constitute a material change,
would not constitute ‘development’ and would not require planning permission.

5.2 The Town and Country Planning (General Permitted Development)

(England) Order 2015
Schedule 2 of the Town and Country Planning (General Permitted
Development) (England) Order 2015 (‘GPDO 2015’) lists 19 broad categories
of development for which planning permission is automatically granted. For
those categories of development specified by the GPDO 2015 there is therefore
not normally any need to make an express application for planning permission.
Many of these relate to extending or doing works to a residential development.
For commercial property it is, however, useful to note the following:

Part 2: Minor Operations

This includes the construction of an access to a highway which is not a trunk or

classified road and the painting of the exterior of any building.

Part 3: Changes of use between use classes

Certain material changes of use between different use classes are deemed to
be automatically permitted (subject to limitations in certain cases). For example,
a change from B2 (general industrial) to B8 (storage and distribution) is

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permitted, provided the change relates to less than or equal to 500 square
metres of floor space. See the table within the GPDO 2015 in your PLP
Handbook.

Given the recent abolition of many of the use classes in the UCO 1987, with no
concomitant amendments to the GPDO 2015, much of the GPDO can no longer
be relied on. There are, however, transitional provisions in place between 1
September 2020 and 31 July 2021. If a change of use is not automatically
permitted under the new UCO 1987 but would have been permitted under the
GPDO 2015 using the pre-1 September 2020 use classes then between 1
September 2020 and 31 July 2021, that change will still be permitted. This
means there should be no need to make a planning application. Before
concluding this though, a developer should check for any restrictions referred
to in the GPDO 2015. In particular a developer should consider the following
limitations and restrictions on the GPDO 2015:

Article 4 direction

Article 4 of the GPDO 2015 provides that the DCLG or the LPA may
exclude the effect of the GPDO 2015 by removing specified developments
from permitted development under the GPDO 2015 or by excluding the
applicability of the GPDO 2015 from a certain geographical area (‘Article
4 Direction’). Article 4 Directions are commonly found in conservation
areas and rural areas.

Local development orders

Local development orders (‘LDO’) are locally focussed planning tools that
LPAs can use to grant planning permission for specific types of
development within a defined geographical area within the local authority
remit. If an LDO has been implemented its terms need to be checked to
see if the new change of use is permitted within it.

Planning conditions

Conditions on planning permissions can restrict or exclude the benefit of

the GPDO 2015 (as with the UCO’s 1987 and 2005 and now the 2020
Amendment Order). The DCLG is usually against this unless there are
compelling planning reasons. Also, permission requiring use as
residential accommodation and care to people in need of care only would
forbid any other use within Class C1, such as a hospital or nursing home
or residential school, college or training centre.

Article 2(3) land

In addition, the GPDO 2015 is modified in special cases. Article 2(3) of

the GPDO 2015 modifies the application of the GPDO 2015 to certain
land, known as ‘Article 2(3) land’, which includes land within a National
Park, an area of outstanding natural beauty and conservation areas.
Within Article 2(3) land, certain permitted development rights may be
more restricted than in other locations (for example, the size threshold for
what can be done without having to make an express application for

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planning permission may be considerably lower) or even excluded

altogether.

5.3 Summary of Approach

When you are analysing and advising a client as to whether planning permission
will be required for a change of use of a property, you may find it helpful to break
down the analysis into the following four-stage process.

Step 1: Is there a material change of use? Remember that (subject to checking

existing local development orders and existing planning conditions) if the new
use will be within the same use class as the old use, there is not a material
change of use so the proposal will not constitute ‘development’ and not require
planning permission. In these circumstances, you do not need to address the
remaining steps.

Step 2: Even if there is a material change of use, is there a permitted

development right authorising that change? Remember that if there is, planning
permission is deemed to be granted automatically for the change of use and it
will not be necessary to make an express application for permission (subject to
step 3 below). Between 1 September 2020 and 31 July 2021 if the change would
have been permitted using the pre-1 September 2020 UCO 1987 it will still be
permitted (provided any relevant conditions in the GPDO 2015 are complied
with).

Step 3: If there is a permitted development right, is there anything restricting the

availability of that right (e.g. an Article 4 Order or the land being Article 2(3)
land)? If so, you cannot rely on permitted development and an express
application for planning permission will be required.

Step 4: If there is a material change of use for which there is not a permitted
development right or for which any permitted development right is excluded, it
will be necessary to make an express application for planning permission.

6. Enforcement

6.1 Breach of planning control (s.171A(1) TCPA 1990)

1. Development without the requisite planning permission.
2. Breach of condition/limitation.

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6.2 Time limits for enforcement action (s.171B TCPA 1990)

The carrying out of unauthorised operations (such as building works) or change
of use of any building to use as a single dwelling house:

 4 years from the date on which operations were substantially

completed or from the date of the breach (as the case may be)

All other breaches (including a breach of condition attached to a planning

permission and any other unauthorised changes of use):

 10 years from the date of the breach

As soon as the relevant time limit has passed, immunity is in effect given to the
breach.

Please note the amendments to the enforcement periods for any

concealment or fraud in relation to a breach of planning control,
discussed at paragraph 8.4 of Chapter 2 as a result of the Localism Act
2011.

6.3 Planning Contravention Notice

Where it appears to a LPA that there may have been a breach of planning
control, a Planning Contravention Notice (‘PCN’) may be served on the owner
or occupier of the land or alternatively on any person who is carrying out
operations on the land or who is using the land for any purpose – s.171C TCPA
1990.
A PCN may require information as to any use being made of the land, any
operations or activities being carried out on the land, and any matter relating to
the conditions or limitations subject to which any planning permission in respect
of the land has been granted.

A PCN must give the person served an opportunity to make an offer to apply for
planning permission or refrain from operations or activities or to undertake
remedial work and to make any representations about the notice.

PCN’s effectively provide LPA’s with a means of investigating potential

breaches of planning control and whether a breach has in fact occurred. As a
result, they are often a pre-cursor to some of the other means of planning
enforcement action listed below which are available to LPA’s.

Responding to a PCN is mandatory and failing, without reasonable excuse, to

provide the information sought by a PCN is a criminal offence, subject to a
£1,000 fine. Deliberately or recklessly making a false or misleading statement
in response to a PCN is also an offence, subject to a maximum £5,000 fine
(s.171D TCPA 1990).

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6.4 Enforcement Notice

The LPA may issue an Enforcement Notice (‘EN’) where it appears that there
has been a breach of planning control and it is expedient to issue such a notice
having regard to the provisions of the development plan and any other material
considerations (s.172 TCPA 1990).

An EN must state the matters which the LPA considers to constitute a breach
of planning control and (as appropriate) the steps which the LPA require to be
taken or the activities which the LPA require to cease to remedy the breach
(s.173 TCPA 1990).

Effect of Enforcement Notice

1. It cannot become effective earlier than 28 days after service.
2. LPA has a right of entry to enforce the steps required by the EN and can
then recover from the owner of the land any expenses reasonably incurred
by them in exercising this right of entry and enforcing the steps.

Enforcement of an Enforcement Notice

1. If the steps required to be taken by an EN are not taken by the end of the
time period for compliance set out in the notice, this is a criminal offence
subject to a fine - £20,000 maximum if a summary offence or unlimited
fine on indictment.
2. LPA right of entry.
3. Right of appeal. Any person with an interest in or occupying the land to
which an EN relates may appeal against the notice to the Secretary of
State for Communities and Local Government. Any such appeal must be
lodged with the Secretary of State before the date specified within the EN
as being the date on which it is to take effect and must also set out the
appellant’s grounds for making the appeal. Importantly, if an appeal is
made against an EN, the effect of the EN is suspended and it will be of no
effect until either final determination or withdrawal of the appeal.

6.5 Stop notice

As noted in paragraph 6.4 above, an EN cannot become effective earlier than
28 days after service and if there is an appeal the notice is of no effect pending
final determination of the appeal. In cases of particularly serious breaches of
planning control, the resulting time gap can inhibit an LPA’s ability to enforce
the breach effectively, increasing the risk of damage to the local area. A stop
notice is used to prevent unauthorised activities and detriment to local amenity
before an EN takes effect.

A stop notice may be served with an EN or afterwards – s.183(1) and (2) TCPA
1990 and can require an almost immediate halt to the unauthorised activities in
question. A stop notice cannot be used to prevent the use of any building as a
dwelling house, and cannot stop any activity which has been going on for more
than four years.

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6.6 Breach of condition notice

The LPA may serve a breach of condition notice (‘BCN’) as an alternative
remedy to an enforcement notice where the LPA wishes to secure compliance
with conditions or limitations attached to an existing planning permission
(s.187A TCPA 1990). The BCN must give at least 28 days for compliance.

6.7 Injunction – s.187B TCPA 1990

Potentially available if it is necessary or expedient to restrain an actual or
apprehended breach of planning control. On an application for an injunction by
an LPA, the Court may grant such an injunction as the Court thinks appropriate
for the purpose of restraining the breach.

6.8 Other controls on demolition

Planning (Listed Buildings and Conservation Areas) Act 1990.
1. Listed buildings.
2. Buildings of special architectural or historic interest.
3. Conservation areas.

We will investigate the planning title to a development site in SGS2.

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7. Building Regulations

Before any development works can begin a developer must inform the local
authority and deposit with them plans of the works. Building regulations
approval is an additional and independent approval to planning permission.

Indeed, building regulations approval may be required in cases where an

application for planning permission is not required: for example, the building of
an extension to a dwelling house may fall within the GPDO 2015 and therefore
an application for planning permission will not be required, but because of the
nature of the works carried out, building regulations approval would almost
certainly be required.

Builders and developers are required by law to obtain building control

approval - an independent check that the Building Regulations have been
complied with. There are two types of building control providers - the local
authority (by means of the District Surveyor) and Approved Inspectors.

If a builder does not abide by the building regulations then the regulations may
be enforced via the Building Act 1984 (‘BA 1984’). Non-compliance is a criminal
offence, and the maximum fine is £5,000 per offence.

There are two ways in which enforcement may take place:

1. The LPA may (by notice under s.36 BA 1984) require the work to be pulled
down or removed or require that alterations are made to make the work
comply with the building regulations. This is the most usual action to be
taken, and must be taken within 12 months of completion of the offending
work (s.36(4) of the BA 1984). The Magistrates have the power under s.35
of the BA 1984 to impose an initial fine of up to £5,000 and up to £50 per
day that the contravention continues. They can also award reasonable
legal incurred costs against the owner.

2. Injunctive proceedings taken under s.36(6) of the BA 1984 for which there
is no time limit. In the case of Cottingham v Attey Bower & Jones [2000]
Lloyds Rep PN 591 the buyer’s solicitor was found to be negligent for not
ensuring the seller had obtained building regulations approval prior to
completion.

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