Planning law in property transactions - Matters not constituting development

Learning Outcomes

After reading this article, you will be able to identify and explain which activities are excluded from the statutory definition of 'development' under the Town and Country Planning Act 1990. You will understand the legal significance of these exclusions, their practical effect on property transactions, and be able to apply the rules to SQE1-style scenarios involving planning permission requirements.

SQE1 Syllabus

For SQE1, you are required to understand the definition of 'development' in planning law and, crucially, which activities are not classed as development. This includes recognising statutory exclusions, their effect on the need for planning permission, and the implications for property transactions.

  • The statutory definition of 'development' under the Town and Country Planning Act 1990 (TCPA 1990)
  • Activities expressly excluded from the definition of development
  • The legal and practical effect of these exclusions on planning permission requirements
  • The impact of local restrictions (e.g. Article 4 Directions, listed buildings, conservation areas)
  • Application of these principles to property transactions and due diligence

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Which of the following is not classed as 'development' under the TCPA 1990?
    1. Building a rear extension that alters the external appearance
    2. Internal alterations that do not affect the external appearance
    3. Converting a shop to a restaurant where both are in the same use class
    4. Erecting a garden shed for incidental residential use

  2. True or false? Changing the use of a property from one use class to another always requires planning permission.

  3. What is the effect of an Article 4 Direction on permitted development rights?

  4. Why is it important for a buyer’s solicitor to check whether previous works to a property required planning permission?

Introduction

Planning law in England and Wales is built around the concept of 'development'. Whether planning permission is required for a particular activity depends on whether it falls within the statutory definition of development. However, not all physical works or changes of use are classed as development. This article explains which activities are excluded from the definition, their legal effect, and the practical consequences for property transactions.

Activities Excluded from 'Development'

The Town and Country Planning Act 1990 (TCPA 1990) sets out a broad definition of development but also lists specific activities that are not development. If an activity is not development, planning permission is not required (though other consents, such as building regulations, may still apply).

Key Term: development
Development means 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 (TCPA 1990, s 55(1)).

Internal Works

Works that are entirely internal to a building and do not materially affect its external appearance are not development.

Key Term: internal works
Alterations or improvements that affect only the interior of a building and do not change its external appearance.

Incidental Uses Within the Curtilage

Using land or buildings within the curtilage (the immediate grounds) of a dwellinghouse for purposes incidental to its enjoyment as a home is not development. Examples include erecting a small shed, greenhouse, or play equipment for personal use.

Key Term: curtilage
The land immediately surrounding a dwellinghouse, including gardens and outbuildings, used for the enjoyment of the residence.

Changes Within the Same Use Class

Changing the use of a building or land to another use within the same use class (as defined by the Town and Country Planning (Use Classes) Order 1987) is not development. For example, converting a shop to a café, where both are in Class E, does not require planning permission.

Key Term: use class
A category of land or building use defined by the Use Classes Order 1987 (as amended), grouping similar uses together.

Certain Changes Prescribed by Development Orders

Some changes of use between different classes are permitted by statutory instrument (the General Permitted Development Order, or GPDO). These are not development for planning purposes if the GPDO says so, but most are technically development that is automatically granted planning permission.

Key Term: permitted development
Development that is automatically granted planning permission by the GPDO, so no express application is needed.

Legal Effect of Exclusions

If an activity is not development, planning permission is not required. However, other controls may still apply, such as:

  • Building regulations (for structural safety, fire, etc.)
  • Listed building consent (for works affecting listed buildings)
  • Restrictions in conservation areas
  • Private covenants or leasehold restrictions

Worked Example 1.1

A homeowner wants to knock through a wall between the kitchen and dining room, with no change to the external appearance. Is planning permission required?

Answer: No. This is an internal alteration that does not affect the external appearance, so it is not development. However, building regulations approval may still be needed.

Worked Example 1.2

A business owner converts a travel agency (Class E) into a bakery (also Class E). Is planning permission needed for the change of use?

Answer: No. Both uses fall within the same use class, so the change is not development and does not require planning permission.

Local Restrictions and Special Cases

Article 4 Directions

Local planning authorities can remove permitted development rights in specific areas by making an Article 4 Direction. This means that even activities normally excluded from development or permitted under the GPDO may require planning permission.

Key Term: Article 4 Direction
A direction by a local planning authority removing specified permitted development rights in a defined area.

Listed Buildings

Works to a listed building, even if internal, may require listed building consent. This is separate from planning permission and is required to protect the building's special character.

Key Term: listed building consent
Consent required for works affecting the character of a listed building, including internal alterations.

Conservation Areas

In conservation areas, some permitted development rights are restricted or removed. For example, certain minor works or changes to the external appearance may require planning permission.

Exam Warning

Some activities may be excluded from development nationally but still require permission locally due to Article 4 Directions, conservation area status, or listed building status. Always check local planning policies and designations.

Practical Implications for Property Transactions

When acting in a property transaction, solicitors must check whether any works or changes to the property required planning permission. If works were not development, or were permitted development, this reduces the risk of enforcement action. However, if works were development and no permission was obtained, the buyer may inherit liability and the value of the property may be affected.

Worked Example 1.3

A buyer discovers that the seller converted a garage into a home office five years ago, with no external alterations. What should the buyer’s solicitor do?

Answer: The conversion is likely to be an incidental use within the curtilage and, if there were no external changes, not development. The solicitor should confirm the details and check for any local restrictions or building regulations compliance.

Summary

  • Internal works that do not affect the external appearance of a building are not development.
  • Incidental uses within the curtilage of a dwellinghouse are not development.
  • Changes of use within the same use class are not development.
  • Some changes of use are permitted by statutory instrument and do not require express planning permission.
  • Local restrictions (Article 4 Directions, conservation areas, listed buildings) may override national exclusions.
  • Solicitors must check the planning status of previous works when acting in property transactions.

Key Point Checklist

This article has covered the following key knowledge points:

  • The statutory definition of 'development' and its exclusions under the TCPA 1990
  • Internal works and incidental uses within the curtilage are not development
  • Changes within the same use class are not development
  • Certain changes of use are permitted by development orders
  • Article 4 Directions, listed building consent, and conservation area restrictions may override general exclusions
  • The importance of checking planning status in property transactions

Key Terms and Concepts

  • development
  • internal works
  • curtilage
  • use class
  • permitted development
  • Article 4 Direction
  • listed building consent
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