Planning law in property transactions - Obtaining planning p...

Learning Outcomes

This article outlines planning law in property transactions, focusing on obtaining planning permission, including:

• Circumstances in which planning permission is required in property transactions
• The statutory definition of development
• The distinction between permitted development and express permission
• The planning application process
• Consequences of breaches of planning control
• Application of planning principles to SQE1-style scenarios
• Common pitfalls in SQE1-style applications
• The role of the development plan and national policy in decision-making
• Types of permission: full, outline, and permission in principle
• Prior approval under the GPDO
• Certificates of lawfulness
• The effect of planning obligations and the Community Infrastructure Levy on transactions

SQE1 Syllabus

For SQE1, you are required to understand when planning permission is needed in property transactions and how to advise clients on planning law issues, with a focus on the following syllabus points:

• The statutory definition of development under the Town and Country Planning Act 1990 (TCPA 1990)
• What constitutes permitted development and the effect of Article 4 Directions
• The planning application process and types of planning permission
• The consequences of unauthorised development and enforcement action
• The distinction between planning permission and building regulations approval
• The role of the development plan and National Planning Policy Framework (NPPF) in decisions
• Types of permission: full, outline (reserved matters), and permission in principle (technical details consent)
• Prior approval procedures under the GPDO for certain permitted changes and larger extensions
• Certificates of lawfulness for existing and proposed uses or development
• Planning obligations (s 106) and the Community Infrastructure Levy (CIL)
• Enforcement time limits in England (10 years for all breaches) and in Wales (4/10-year regime), stop and temporary stop notices, breach of condition notices, injunctions
• Listed building consent and additional controls in conservation areas

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. What is the statutory definition of "development" for planning law purposes?
2. Name two examples of works that are usually permitted development and do not require express planning permission.
3. What is an Article 4 Direction and how does it affect permitted development rights?
4. What are the main consequences if a property owner carries out development without the required planning permission?
5. True or false? Obtaining planning permission automatically means that building regulations approval is not required.

Introduction

Planning law controls the development and use of land in England and Wales. For property transactions, it is essential to know when planning permission is required, what counts as development, and the risks of non-compliance. This article explains the key principles, the process for obtaining planning permission, and the consequences of breaches, as required for SQE1. Planning is plan-led: decisions are made in accordance with the development plan unless material considerations indicate otherwise. The National Planning Policy Framework (NPPF) informs how LPAs interpret and apply policy, including the presumption in favour of sustainable development.

The Statutory Definition of Development

The starting point for planning law is the statutory definition of development.

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 (s 55(1) TCPA 1990).

Most construction works, extensions, and significant changes of use will be development and may require planning permission.

Key Term: material change of use
A material change of use occurs when the character of the use of land or buildings changes in a way that affects planning considerations, such as converting a house into a shop. Whether a change is “material” is a question of fact and degree.

Key Term: operational development
Operational development is the “building, engineering, mining or other operations” limb of the s 55 definition. It includes demolition, rebuilding, structural alterations and additions, and operations normally carried out by a builder (s 55(1A) TCPA 1990).

Additional statutory points to note:

• Subdividing one dwelling into two or more separate dwellings is expressly treated as development and will require permission.
• Intensification of an existing use does not necessarily amount to a material change of use unless it changes the character of the use in planning terms.

Works That Are Not Development

Not every alteration or use of land is classed as development. The TCPA 1990 excludes certain activities.

Key Term: matters that do not constitute development
These include:

• Internal works to a building that do not materially affect the external appearance (s 55(2)(a))
• Use of land within the curtilage of a dwelling for purposes incidental to its enjoyment (s 55(2)(d))
• Changes of use within the same use class (s 55(2)(f))
• Certain demolition of small buildings and means of enclosure under the 2014 Demolition Direction (subject to exceptions, e.g., in conservation areas)

For example, fitting a new kitchen or repainting internal walls is not development and does not require planning permission. However, internal works to a listed building can require listed building consent even if they do not amount to development. Demolition is complex: while small-scale demolition can be outside the definition of development, most total or partial demolition either requires express permission or is granted permission subject to conditions by the GPDO and may need conservation area consent where relevant.

Permitted Development and Article 4 Directions

Some development is permitted automatically by national rules.

Key Term: permitted development
Permitted development is development that does not require express planning permission because it is granted by the Town and Country Planning (General Permitted Development) Order 2015 (GPDO), as amended. It is still “development” but benefits from deemed permission.

Common examples include small home extensions, certain loft conversions, porches and hardstandings, minor operations like painting, and specified changes of use (all subject to limits and conditions). Many permitted developments require prior approval from the LPA for specified impacts (for example, transport, noise, contamination, flooding, or adequate natural light for residential conversions).

Key Term: prior approval
A prior approval procedure under the GPDO requires notification and LPA approval of specified impacts before the permitted development can proceed. It is not an “application for planning permission” but is a condition precedent to the PD right.

Important practical limitations:

• Most Part 1 dwellinghouse rights do not apply to flats or to buildings converted to residential under certain PD provisions.
• Designated land (e.g., conservation areas, National Parks, Areas of Outstanding Natural Beauty, World Heritage Sites) attracts additional restrictions.
• Larger single-storey rear extensions for dwellinghouses can be PD but require the neighbour consultation (prior approval) procedure.
• PD rights can be restricted by planning conditions, by Article 4 Directions, or by the fact that enforcement notices are in force.

Key Term: Article 4 Direction
An Article 4 Direction is a local authority order (confirmed in accordance with the GPDO) that removes specified permitted development rights in a defined area, meaning express planning permission is required for works or changes that would otherwise be permitted. Compensation exposure can arise if directions take immediate effect; advance notice often limits that risk.

Article 4 Directions are commonly used to manage changes in conservation areas or to restrict particular PD rights (e.g., changes from dwellings to small HMOs) in areas experiencing harm from cumulative minor changes. Listed building controls apply in parallel and are not displaced by PD rights.

Use Classes and Changes of Use

The Town and Country Planning (Use Classes) Order 1987 (as amended) groups uses of land and buildings into classes. In England, major 2020 amendments created broader commercial Class E and split local community/learning into Classes F.1 and F.2. Changing use within the same class does not require planning permission; changing to a different class usually does, unless a permitted development right applies.

Key Term: use classes order
The Town and Country Planning (Use Classes) Order 1987 (as amended) groups land uses into classes. A change within the same class is not development; a change between classes is generally a material change requiring permission unless PD applies.

Key Term: sui generis
Uses that do not fall within any class are “sui generis” (in a class of their own), including pubs and bars, hot food takeaways, nightclubs, cinemas, bingo halls, and large HMOs. Changes to or from a sui generis use will require express permission unless a specific PD right exists.

Practical points:

• Class E covers shops, restaurants/cafés (mostly on-premises), offices, R&D, light industrial, indoor sport/fitness, medical/health services, crèches/day nurseries—allowing flexibility within the class without permission.
• Many changes to residential use from commercial (e.g., Class E to C3) may be PD under the GPDO (such as Class MA in England) but will require prior approval and must satisfy floorspace, vacancy and impact criteria.
• Small HMO use (C4) and dwellinghouse (C3) changes can be PD in some areas under the GPDO, but LPAs often deploy Article 4 Directions to manage concentration of HMOs.
• Use class frameworks differ in Wales; always check the current jurisdiction-specific order.

The Planning Application Process

When development is not permitted development or is restricted by an Article 4 Direction, express planning permission is required.

Key Term: planning permission
Planning permission is formal approval from the local planning authority (LPA) to carry out development or a material change of use.

There are two main types of planning permission:

• Full planning permission: Approval for a specific development with detailed plans.
• Outline planning permission: Approval for the principle of development, with details to be approved later (reserved matters).

Key Term: reserved matters
Reserved matters are details (such as layout, scale, appearance, access and landscaping) left over from outline permission to be approved by the LPA later. Applications for reserved matters must be made within the outline permission time limit, and works must commence within the required period after approval.

Other routes include permission in principle (PiP) for small-scale housing-led development, followed by a technical details consent stage.

Key Term: permission in principle
Permission in principle establishes whether a site is suitable in principle for housing-led development. It is followed by technical details consent, which, once granted, has the effect of full planning permission.

The process involves submitting an application to the LPA with plans and supporting documents (including ownership certificates and, where required, design and access statements). The LPA will validate the application, publicise it, consult neighbours and statutory consultees, and assess it against the development plan and other material considerations (including the NPPF). The LPA must decide to grant, grant with conditions, or refuse permission within statutory timescales (typically 8 weeks for most minor applications, 13 weeks for major development, and 16 weeks where an environmental impact assessment is required). Non-determination within time can be appealed.

Planning permissions often include conditions, including pre-commencement conditions. Conditions must meet policy tests (necessary, relevant, enforceable, precise and reasonable). If conditions later need to be varied or removed, an application under s 73 TCPA 1990 (and related powers) can be made; minor non-material changes may be addressed under s 96A.

Key Term: planning obligation
A planning obligation (s 106 TCPA 1990) is a legal agreement or unilateral undertaking given to mitigate the impacts of development (e.g., affordable housing, highway works). It must be necessary, directly related, and fairly and reasonably related in scale and kind.

Key Term: community infrastructure levy (CIL)
CIL is a charge local authorities can levy on new development to fund infrastructure, set out in a published charging schedule. Liability typically arises on commencement of chargeable development, with procedures for assumption of liability, reliefs and surcharges.

Appeals against refusal, conditions, or non-determination are made to the Planning Inspectorate. Judicial review in the High Court is available to challenge the lawfulness of decisions on public law grounds, not the planning merits.

Development must begin within the time specified, usually three years for full permission. For outline permission, reserved matters must be submitted within three years of the outline consent, and development started within two years of the approval of the last reserved matter. Once lawfully implemented, planning permissions generally run with the land.

Key Term: lawful development certificate
A certificate of lawfulness confirms that an existing use or development is lawful (s 191) or that proposed use or works would be lawful (s 192), for example because they are not development, are PD, or are immune from enforcement.

Worked Example 1.1

A client wants to build a small rear extension to their house, which is not listed and not in a conservation area. Does the client need to apply for planning permission?

Answer:
If the extension falls within the limits set by the GPDO (e.g., size, height, position), it is likely to be permitted development and will not require express planning permission. However, if the property is subject to an Article 4 Direction or the extension exceeds the permitted limits, planning permission will be required. Some larger single-storey rear extensions can be PD but require prior approval via the neighbour consultation procedure. Building regulations approval will still be required.

Enforcement and Breach of Planning Control

Carrying out development without the required planning permission is a breach of planning control. The local planning authority has enforcement powers. The current enforcement time limits differ between England and Wales.

• England: A unified 10-year period applies to all breaches of planning control (operational development, changes of use including to a single dwellinghouse, and breaches of condition).
• Wales: Time limits remain 4 years for unauthorised operational development and change of use to a single dwellinghouse, and 10 years for other breaches (e.g., other changes of use or breach of condition).

Concealed breaches can be pursued notwithstanding the above through planning enforcement orders, enabling action to be taken within a specified period after discovery.

Key Term: enforcement notice
An enforcement notice is a formal notice issued by the LPA requiring the owner/occupier to remedy a breach of planning control, such as removing unauthorised works or ceasing an unauthorised use. It must specify the breach, the steps required, and the compliance period. It takes effect not less than 28 days after issue. Non-compliance is a criminal offence.

Key Term: planning contravention notice
A planning contravention notice is a preliminary notice issued by the LPA to obtain information about a suspected breach before deciding on enforcement action. Recipients must respond within 21 days; failure or knowingly providing false information is an offence.

Key Term: stop notice
A stop notice (or temporary stop notice) requires activities alleged to be in breach of planning control to cease immediately (temporary) or pending the enforcement notice taking effect. A stop notice can only follow an enforcement notice; a temporary stop notice can be served on its own but expires after 28 days. Breach is a criminal offence. A stop notice cannot prohibit use of a building as a dwellinghouse.

Key Term: breach of condition notice
A breach of condition notice is issued to secure compliance with a planning condition. There is no right of appeal. Failure to comply is a criminal offence.

Key Term: completion notice
Where operational development permitted by an extant permission has begun but appears unlikely to be completed within a reasonable time, an LPA may serve a completion notice specifying a period for completion, failing which the permission ceases to have effect.

LPAs may also seek an injunction from the court to restrain actual or apprehended breaches. A successful appeal against an enforcement notice suspends its effect. Those who can demonstrate immunity (e.g., due to the expiry of the relevant period) often seek a certificate of lawfulness to regularise their position.

Building Regulations

Planning permission and building regulations are separate requirements.

Key Term: building regulations approval
Building regulations approval is official confirmation that building works comply with national standards for safety, health, energy efficiency, and accessibility. It is granted by the local authority building control body or an approved inspector.

Most building works (including extensions, structural alterations, new electrical installations and some changes of use) require building regulations approval, even if planning permission is not needed. There are two main application routes: full plans (with detailed drawings) and building notice (simpler but not suitable for complex works). Several trades operate self-certification schemes (e.g., FENSA for replacement windows).

Failure to comply can result in enforcement action, fines, and orders to remove or alter non-compliant work. Proceeding without approval raises safety and marketability concerns; buyers and lenders may require a regularisation certificate or remedial works.

Worked Example 1.2

A property owner receives planning permission for a loft conversion but does not apply for building regulations approval. What are the risks?

Answer:
The owner is at risk of enforcement action by the local authority for breach of building regulations. The works may need to be altered or removed, and the owner could be fined. Planning permission does not remove the need for building regulations approval. The absence of approval may also affect saleability and mortgageability unless remedied or evidenced by a suitable regularisation certificate.

Listed Buildings and Conservation Areas

Additional controls apply to listed buildings and properties in conservation areas.

Key Term: listed building consent
Listed building consent is required for works that affect the character of a listed building, internally or externally, in addition to any planning permission. Unauthorised works to a listed building are a criminal offence, and there is no standard limitation period for enforcement.

In conservation areas, additional planning controls apply. Demolition of unlisted buildings generally requires express planning permission, and many PD rights are curtailed. LPAs often use Article 4 Directions to manage small-scale alterations that could cumulatively harm the area’s character. Tree preservation orders may further restrict works to trees.

Worked Example 1.3

A buyer intends to convert vacant Class E premises on a high street into two flats above and a smaller shop at ground floor. The property sits within a conservation area where an Article 4 Direction removes certain PD rights. What permissions or approvals are likely required?

Answer:
A mixed change from Class E to residential (C3) may be PD under the GPDO in some circumstances (e.g., Class MA in England), but it is subject to prior approval and multiple thresholds (including floorspace limits, vacancy periods, and impact assessments). The conservation area and Article 4 Direction may remove or restrict the relevant PD rights, meaning express planning permission is likely required. Separate listed building consent would be needed if the building is listed. Building regulations approval will be required for the conversion works. CIL and s 106 obligations should be checked, and planning conditions/obligations may control the mix, design and amenity.

Consequences for Property Transactions

When acting in a property transaction, always check:

• Whether all necessary planning permissions and building regulations approvals have been obtained for past works
• Whether there are any outstanding enforcement notices or breaches
• Whether the property is listed or in a conservation area
• Whether any restrictions (e.g., covenants) affect development
• Whether permitted development rights are restricted by an Article 4 Direction or planning conditions
• Whether planning conditions (including occupancy restrictions) and planning obligations (s 106) have been complied with and will bind a buyer
• Whether any CIL liability has been triggered, assumed, or remains outstanding, including surcharges and interest

Failure to do so can expose the buyer to enforcement action, reduce the value of the property, or make it unmortgageable. Certificates of lawfulness can be used to confirm immunity or PD status. Indemnity insurance is sometimes used where enforcement is time-barred, but enquiries to the LPA may prejudice the availability of such insurance.

Exam Warning

If a client purchases a property with unauthorised works, the buyer may inherit liability for enforcement action. Always check permissions and approvals before exchange of contracts.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The statutory definition of development under the TCPA 1990 includes most building works and material changes of use, with operational development defined in s 55(1A).
• Some works are not development (e.g., internal alterations, incidental residential use, changes within the same use class).
• Permitted development rights allow certain works and changes of use without express permission but may be subject to prior approval and can be removed by Article 4 Directions or restricted on designated land.
• Planning permission routes include full, outline (with reserved matters), and permission in principle followed by technical details consent.
• The LPA determines applications in accordance with the development plan and material considerations (including the NPPF), often imposing conditions; obligations (s 106) and CIL may apply.
• Enforcement action can be taken for unauthorised development. In England a single 10-year time limit applies to all breaches; in Wales the 4/10-year regime remains. Concealed breaches can still be pursued via planning enforcement orders.
• Enforcement tools include planning contravention notices, enforcement notices, stop/temporary stop notices, breach of condition notices, completion notices, and injunctions.
• Certificates of lawfulness can confirm that existing or proposed development is lawful (e.g., PD or immune).
• Planning permission and building regulations approval are separate; both may be needed. Self-certification schemes exist for certain works; regularisation may be required if records are missing.
• Additional controls apply to listed buildings (listed building consent) and conservation areas; unauthorised works to a listed building are a criminal offence.
• In conveyancing, investigate planning history, conditions, obligations (s 106), CIL, Article 4 Directions, and building control documentation; consider indemnity insurance cautiously where appropriate.

Key Terms and Concepts

• development
• material change of use
• operational development
• matters that do not constitute development
• permitted development
• prior approval
• Article 4 Direction
• planning permission
• reserved matters
• permission in principle
• planning obligation
• community infrastructure levy (CIL)
• lawful development certificate
• enforcement notice
• planning contravention notice
• stop notice
• breach of condition notice
• completion notice
• building regulations approval
• listed building consent
• use classes order
• sui generis