Planning law in property transactions - Matters not constitu...

Learning Outcomes

This article outlines what does not constitute 'development' under the Town and Country Planning Act 1990 (TCPA 1990) and the practical implications for property transactions and SQE1 scenarios, including:

• Activities excluded from the statutory definition of development under the TCPA 1990
• Legal significance and practical effect of exclusions on planning permission requirements
• Distinction between national exclusions and permitted development rights under the GPDO
• Circumstances where internal works amount to development despite being within a building
• Application of the rules to SQE1-style planning permission scenarios
• Due diligence steps for advising buyers and lenders in property transactions

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, with a focus on the following syllabus points:

• 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
• Distinguishing matters that are not development from development granted planning permission under the GPDO
• Certificates of lawfulness as risk management tools for buyers and sellers

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. It also clarifies common areas of confusion, such as the difference between activities that are not development and development that benefits from permitted development rights.

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)).

The statutory scheme separates two broad categories:

• Operational development (building, engineering, mining or other operations), including demolition, rebuilding, structural alterations or additions, and other works typically carried out by builders.
• Material change of use (changing how buildings or land are used).

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). It is important to distinguish these from development that benefits from automatic planning permission under the General Permitted Development Order (GPDO).

Internal Works

Works that are entirely internal to a building and do not materially affect its external appearance are not development. Examples include internal reconfiguration, new internal partitions, and redecoration that leaves the exterior unchanged.

Important nuances:

• If internal works alter the external appearance (for example, replacing windows with a different style that materially changes the building’s external look), that is operational development and may require planning permission unless permitted by the GPDO.
• Certain larger internal mezzanine floors in retail premises have specific controls and may amount to development requiring permission, even though located internally. Always check the current position with the local planning authority.

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 using the garden for play, home hobbies or storing domestic items in existing outbuildings.

Critical distinction:

• The incidental use itself is not development, but physical works (e.g. erecting a shed, greenhouse or outbuilding) are operational development. Many small domestic outbuildings are granted planning permission by the GPDO (Part 1, Class E), subject to limitations and conditions. Therefore, while the use may be incidental and not development, the act of erecting the structure is development unless permitted or expressly consented.

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.

Nuances to watch:

• Subdividing a single dwellinghouse into two or more separate dwellinghouses constitutes a material change of use and is development, even though all units may be within Class C3. Internal layout-only works do not avoid this rule.
• Moving between different use classes generally constitutes development and will require planning permission unless covered by a permitted change under the GPDO or a development order.

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. Two separate regimes are relevant:

• The Use Classes Order identifies changes that are not development because the uses are within the same class.
• The General Permitted Development Order (GPDO) grants planning permission for specified changes that are development (e.g. certain changes from Class E to residential use, subject to prior approval).

These mechanisms mean that a number of changes proceed without an express planning application, but the legal basis differs: either not development or deemed planning permission.

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

Agriculture and Forestry Uses

The use of land for agriculture or forestry (and certain related uses) is not development. However, operational development (such as constructing agricultural buildings) is development, albeit often permitted by the GPDO subject to conditions and size thresholds. For conveyancing due diligence, confirm whether any agricultural buildings benefit from permitted development rights or express permission, and whether any conditions have been complied with.

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
• Advertisement control (the display of advertisements is regulated under separate regulations and may require advertisement consent)

Practical consequences:

• Planning permissions and conditions run with the land. Even where works were not development, if later associated works were developmental and unauthorised, enforcement risks may persist.
• The absence of a need for planning permission does not remove the need to document compliance with building regulations or other regimes, which lenders commonly require.

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.

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.

Worked Example 1.4

Owners plan to subdivide a three-bedroom house into two self-contained flats by internal works only. Is planning permission required?

Answer:
Yes. Subdividing a single dwellinghouse into two or more separate dwellinghouses is a material change of use and therefore development, even if works are internal only.

Worked Example 1.5

A farmer begins using a field to graze livestock. Are planning permissions required?

Answer:
No. The use of land for agriculture is not development. If the farmer later constructs a new barn, that construction is operational development and may need express permission or may be permitted development, subject to GPDO limits and conditions.

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.

Practical points:

• Article 4 Directions do not reclassify an activity that is not development into development. They remove the automatic grant of planning permission for specific permitted development. You must check whether the intended works are not development or are permitted development, then confirm whether Article 4 applies to the latter.
• Local searches (CON29) and LLC1 will typically reveal Article 4 Directions.

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. An internal work could be not development but still require listed building consent.

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. Painting external elevations in a different colour or installing new windows in a way that materially affects external appearance may require consent and may be more tightly controlled.

Certificates of Lawfulness

Where there is uncertainty about whether proposed works or uses amount to development or benefit from permitted development, an application can be made to the local planning authority for a Certificate of Lawfulness of Proposed Use or Development. This provides formal confirmation, useful for both buyers and lenders.

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.

Key due diligence steps:

• Review the property’s planning history: permissions granted/refused, conditions compliance, enforcement or stop notices.
• Clarify whether any works were internal-only with no external impact; confirm building regulations compliance where applicable.
• Verify whether changes of use fell within the same use class or relied on GPDO permitted changes (including any prior approval requirements).
• Establish whether the property is within a conservation area or is listed; check for Article 4 Directions limiting permitted development rights.
• Consider a Certificate of Lawfulness to de-risk ambiguous cases, especially before exchange.

Risk management:

• If there is an unconsented development, explore whether regularisation is possible. Indemnity insurance may address certain risks but does not cure breaches and is often unacceptable where active enforcement is likely.
• Lenders typically require evidence of compliance; lack of building regulation certification can affect mortgageability and may prompt retentions or conditions.

Worked Example 1.6

A shop owner replaced a traditional timber shopfront with a modern aluminium design, visible from the street, without an application. They argue it was just an internal fit-out. Planning position?

Answer:
The external appearance was materially affected, so the works are operational development. Planning permission may have been required unless permitted by the GPDO (which is rare for such changes). The buyer’s solicitor should verify any permission or explore risk mitigation.

Worked Example 1.7

A landlord repainted the exterior of a dwelling in a conservation area a bright colour. No application was made. Is planning permission needed?

Answer:
Painting can be a minor operation often permitted by the GPDO, but conservation area controls can remove or restrict permitted development rights. Local policies may require permission for such external changes; the prudent approach is to check the conservation area restrictions and any Article 4 Direction.

Worked Example 1.8

A café owner wants to add a 150 sq m internal mezzanine to create additional seating. External appearance is unchanged. Does this require planning permission?

Answer:
Internal works are generally not development if they do not materially affect external appearance. However, certain larger internal mezzanines are specifically controlled and may require planning permission depending on the current rules and local interpretation. Confirm with the planning authority or seek a certificate of lawfulness.

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, but erecting new outbuildings is operational development and typically needs planning permission (often granted under the GPDO, subject to conditions).
• Changes of use within the same use class are not development. A notable exception is subdividing a single dwelling into multiple dwellings, which is development.
• Some changes of use are prescribed by development orders as not development (Use Classes Order) or are granted planning permission automatically (GPDO). Distinguish clearly between these regimes.
• Agriculture and forestry uses of land are not development; constructing agricultural buildings is development but may be permitted.
• Local restrictions (Article 4 Directions, conservation areas, listed buildings) may limit permitted development or require listed building consent even where planning permission is not needed.
• Solicitors must check the planning status of previous works when acting in property transactions, verify building regulations compliance, and consider certificates of lawfulness where appropriate.

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 (with clarifications on operational development)
• Changes within the same use class are not development; subdivision of a single dwelling into multiple dwellings is development
• Certain changes of use are permitted by development orders or benefit from permitted development rights under the GPDO
• Article 4 Directions, listed building consent, and conservation area restrictions may override general exclusions or remove permitted development
• The importance of checking planning status, conditions, and building regulations in property transactions, and using certificates of lawfulness for certainty

Key Terms and Concepts

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