Permitted Development Rights
Article 3 of the Town and Country (General Permitted Development) Order 1995 (as amended) (GPDO) can automatically grant planning permission for certain types of development, subject to limits and conditions. These are referred to as Permitted Development Rights (PD Rights). PD rights can, for example, allow for minor alterations/extensions to be made to houses or in terms of non-domestic properties, allow for certain developments to occur without the requirement of gaining planning permission. Bear in mind that the PD rights for flats/maisonettes are much more restricted than those for other households.
The range of PD rights is long and complex, applying to varying types of buildings, developers (such as Local Authorities or telecommunication operators) and developments (for example, agricultural or temporary uses of land). The GPDO is also subject to changes from central Government and therefore, if in doubt and in order to ensure a correct interpretation of legislation it is always best to check with the Planning Department if you are unsure as to what is the latest version of the GPDO. The original GPDO and legislation amending it can be found here.
Permitted Development Rights Withdrawn
In some areas of the country, permitted development rights will be restricted. These areas, known as 'designated areas' (or Article 2(3) land), include Conservation Areas, Areas of Outstanding Natural Beauty and National Parks. The entirety of the Isles of Scilly is designated a Conservation Area and Area of Outstanding Natural Beauty and the restrictions these designations enforce, are included within the details of the GPDO and listed below. However, in line with the Conservation Area designation, Article 4 of the Town and Country (General Permitted Development) Order 1995 (as amended) allows for Local Planning Authorities to restrict PD rights even further. This is referred to as an Article 4 Direction and the implications of these and the Conservation Area designation on householder PD rights can be found in the following document.
Article 4 directions do not prohibit development from taking place, they simply require planning permission to be sought for development which would usually be permitted under the GPDO. This allows the Local Planning Authority to have a greater control over the types of development occurring within Conservation Areas. There are various Article 4 Directions in place on the Isles of Scilly and the majority of restrictions apply to householder development. A guide for householder PD rights has been produced with help from Cornwall Council and this details what permitted development rights are still available for householders. Similarly, the Planning Portal provides guidance on PD rights including an interactive dwelling house which provides a good overview of proposed developments.
Duties and Implications being a designated area:
- DEMOLITION - Planning Permission is required for the demolition of any unlisted building larger than 115 cubic metres or the removal of any gate, wall or other means of enclosure which is less than 1 metre in height, where it abuts the highway, or 2 metres in height elsewhere. Guidance on this can be found on the Planning Portal.
- UNAUTHORISED WORKS – The demolition of an unlisted building in a conservation area without planning permission is a CRIMINAL OFFENCE. It is also an offence to undertake demolition for which planning permission has been granted without complying with a condition attached to the consent. While Magistrates Court can hear such prosecutions, the more serious offences can be referred to the Crown Court. Judiciary take such matters extremely seriously fining owners tens of thousands of pounds plus costs for persons found to have demolished structures and buildings in conservation areas without consent.
- TREES - Notice must be given to the LPA before works are carried out to any tree in the conservation area. It is also an OFFENCE to carry out works to a tree in a conservation area without notifying the LPA or to carry out the works where consent has been refused. The Offence can be tried by a Magistrates Court or in a Crown Court and, as with the demolition of an unlisted building, the court will take into account any financial gain that as accrued or is likely to accrue as a result of the offence. Works to trees includes pruning, crown lifting/reductions/thinning and tree felling. You must give the Council 6 weeks’ notice of such works. The Conservation Area designation automatically confers blanket protection to every tree within its parameters. A tree in this instance is defined as anything with a stem diameter over 75mm when measured at a height of 1.5 metres above the ground. This does not apply to hedges in the Conservation Area. A person wishing to carry out works to a tree (as defined above) must send the LPA a notice of his or her intention to do so. This is referred to as a Section 211 Notice, and its purpose is to allow the LPA to evaluate the trees and respond, if necessary, with a Tree Preservation Order (TPO) to prevent the work or control the extent of the works. Section 211 Notices can be submitted in writing but it is recommended that you use the Planning Portal online application form. Guidance on carry out works to trees in a conservation area can be found on the Planning Portal.
- PERMITTED DEVELOPMENT - Certain works that can be carried out to private residential properties without planning permission (known as permitted development rights) are somewhat reduced. Those permitted development rights affected are listed in this document. Full details on permitted development rights are set out in the General Permitted Development Order. You can be find links to this on the Planning Portal.
- UPKEEP OF THE AREA - The provisions for ensuring the repair or upkeep of listed buildings can be applied to conservation area buildings (S.48-54). There are a range of measures that the LPA can use when historic buildings or land in a conservation area has fallen into a poor state of repair or is being deliberately neglected. Urgent Works Notices (S.54) can secure emergency or immediate repairs to those buildings or parts of buildings which are unoccupied. If the building is unlisted then agreement of the Secretary of State is required. A Repairs Notice (S.48) can only be served on a listed building and can secure much more extensive repairs, but the LPA must be prepared to exercise powers of compulsory purchase should the owner not co-operate. Under its general planning powers the LPA can serve a Section 215 Notice (Town and Country Planning Act 1990) on the owner or occupier where the building or land is adversely affecting the amenity of the area and can require them to clean up the building or site.
- ADVERTISEMENTS – Permitted development for advertisements are also somewhat reduced. The character of the Conservation Area can be seriously eroded through the installation of inappropriate signs. Under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 the sizes of signs that can be erected under Advertisement Consent Permitted Development is reduced. Full details about Advertisement Consent can be found in the Outdoor advertisement and signs: A Guide for Advertisers.
- COUNCIL DUTIES - The LPA is under a general duty to ensure the preservation or enhancement of conservation areas and to prepare proposals to that end. (S.71 + 72). Designating a conservation area should not be seen as an end in itself: we live in a changing world and for the historic environment to survive and continue to be cherished it needs to be positively managed. National planning policy and advice from and English Heritage is placing greater emphasis on the need to take a holistic and proactive approach to managing conservation areas and making full use of planning powers. Clearly an understanding of a conservation area’s qualities and issues is key to developing the most suitable management tools and policies, along with the need to foster public and political support and to secure a resource commitment.
For advice on any aspect raised above please contact the Planning Department for which details are above.
With all building work, the owner of the property (or land) in question is ultimately responsible for complying with the relevant planning rules and building regulations (regardless of the need to apply for planning permission and/or building regulations approval or not).
Therefore, failure to comply with the relevant rules will result in the owner being liable for any remedial action (which could go as far as demolition and/or restoration). The general advice is to always discuss your proposals with the relevant Local Planning Authority and Building Control Service before starting work.
Local planning authorities have discretion to take enforcement action, when they regard it as expedient to do so having regard to the local development plan and any other material considerations. This includes a local enforcement plan, where it is not part of the development plan. In March 2017 the Council adopted a Planning Enforcement Charter to seek to communicate what constitutes a breach of planning control and when it will investigate alledged breaches.
The local planning authority will actively pursue enforcement cases. Often the best way to resolve an outstanding matter is through consideration of a retrospective application. While these often cause great frustration to local residents they are a way of ensuring public scrutiny of a proposal and for the planning fee to be paid. One of the concerns is when unauthorised development potentially may be acceptable with amendments and/or conditions attached to a retrospective application but the owner is unwilling to make an application. In these cases, matters can often remain outstanding for some time. If there were an application, matters such as materials, drainage, landscaping and/or controlling uses can be addressed. The Guide suggests that in those cases where the development may be generally acceptable but there is no application to consider, an Enforcement Notice will be served highlighting that it may have been possible to address the planning issues but without an application this was not possible. The owner will either have the opportunity to remove the unauthorised use/works or appeal to the Planning Inspectorate. In such circumstances, it is then necessary to pay double the planning fee. The Inspector may then grant permission attaching any conditions that will address outstanding planning concerns. It is hoped this approach will move cases to a conclusion without delay. The Enforcement Charter 2017 is downloadable in the link on the right hand side of this page.