Planning law in property transactions - Statutory definition...

Learning Outcomes

This article outlines the statutory definition of ‘development’ in planning law for property transactions, including:

• The statutory definition of ‘development’ under the TCPA 1990 and its two main categories
• Operational development and material change of use
• Statutory exceptions to what constitutes ‘development’ (internal works, incidental uses, changes within the same use class)
• Permitted development rights under the GPDO and the effect of Article 4 Directions
• The Use Classes Order and change-of-use scenarios
• Prior approval and certificates of lawfulness (s 192 TCPA for proposed; s 191 TCPA for existing)
• Practical implications for transactions, including building regulations, listed building consent, and enforcement time limits and notices

SQE1 Syllabus

For SQE1, you are required to understand the statutory definition of 'development' in planning law and its practical implications for property transactions, with a focus on the following syllabus points:

• The statutory definition of ‘development’ under s 55 TCPA 1990 and the requirement for planning permission under s 57
• The distinction between operational development and material change of use, including demolition and engineering operations (s 55(1A))
• Statutory exceptions to what constitutes ‘development’ (s 55(2)), including internal works, incidental uses, and changes within the same use class
• The Town and Country Planning (Use Classes) Order 1987 (as amended), especially Class E, Class C3/C4 and sui generis uses
• The concept and scope of permitted development rights under the GPDO, limitations and conditions, and the role of prior approval
• Certificates of lawfulness (proposed: s 192 TCPA; existing: s 191 TCPA) and their transactional use
• The effect of Article 4 Directions and local restrictions on permitted development
• Enforcement tools and time limits (e.g., enforcement notices, stop notices, breach of condition notices; standard 4/10-year periods and concealed breaches)
• The practical consequences for clients proposing works or changes of use, including building regulations and listed building consent

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 two main categories are included in the statutory definition of 'development' under s 55 TCPA 1990?
2. Give two examples of activities that are specifically excluded from the definition of 'development' by statute.
3. What is the effect of an Article 4 Direction on permitted development rights?
4. True or false? Internal alterations to a building always require planning permission.
5. What is a 'material change of use' and when does it require planning permission?

Introduction

When advising clients on property transactions, it is essential to determine whether proposed works or changes of use will require planning permission. This depends on whether the activity amounts to ‘development’ as defined by statute. Understanding the statutory definition, its exceptions, and the operation of permitted development rights is fundamental for SQE1. In practice, you must also consider related regimes that can apply alongside planning control, including building regulations approval for most construction works and listed building consent where a building is listed, because those consents are distinct from planning permission but often arise in the same scenarios.

Statutory Definition of 'Development'

The primary legislation governing planning control in England and Wales is the Town and Country Planning Act 1990 (TCPA 1990). The Act sets out when planning permission is required by defining what is meant by 'development'.

Key Term: development
Development is defined in s 55(1) TCPA 1990 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.

This definition captures two broad categories of controlled activity:

• Operational development
• Material change of use

Section 55(1A) clarifies that “building operations” include demolition, rebuilding and structural alterations and additions; “other operations” capture a wide range of works not strictly building works (for example, significant earthworks, road construction or the creation of ponds). The term “engineering operations” is broad and regularly includes excavations, soil grading, retaining structures and infrastructure works.

Key Term: operational development
Physical works that alter the land or buildings, including construction, demolition, rebuilding, structural alterations, additions and engineering works.

Key Term: material change of use
A change in the use of land or buildings that is significant enough to affect the planning character or status of the property.

Operational development typically involves physical change to the fabric or layout of land or buildings. Material change of use focuses on planning impact. A key principle is that not every change or intensification of a use is “material”; materiality depends on effects such as amenity, traffic, noise, hours of operation, or the introduction of a different planning character (for example, a shop becoming a hot food takeaway).

Demolition is expressly within building operations and can be either permitted development (for specified categories) or require planning permission depending on the circumstances (and especially in conservation areas where additional controls apply).

Statutory Exceptions: What Is Not 'Development'?

Not all activities fall within the statutory definition of 'development'. Section 55(2) TCPA 1990 lists specific exceptions where planning permission is not required because the activity does not constitute development.

Key Term: matters that do not constitute development
Activities excluded from the definition of development by statute, such as:

• Works affecting only the interior of a building, provided they do not materially affect the external appearance.
• Changes of use within the same use class under the Town and Country Planning (Use Classes) Order 1987.
• Uses incidental to the enjoyment of a dwellinghouse (e.g., using a room as a home office).

These exceptions operate alongside the GPDO and listed building controls. Important nuances include:

• Internal works to non-listed buildings are outside development, unless they materially affect the external appearance. For listed buildings, internal works that affect the building’s special interest require listed building consent even though they may not be “development”.
• There is a statutory carve-out for large retail mezzanine floors: significant new mezzanine floorspace (above specified thresholds) may constitute development despite being internal works, reflecting retail impact policy.
• Uses incidental to a dwellinghouse cover typical domestic activities and outbuildings, but the line between “incidental” and “primary” use matters (e.g., a workshop primarily used for business rather than incidental domestic use is unlikely to be incidental).
• Changes within the same use class do not amount to development; however, moving between different classes (or to a sui generis use) is development unless specific permitted development rights apply.

Key Term: Use Classes Order
The Town and Country Planning (Use Classes) Order 1987 groups uses into classes. Changes within the same class are not development; moving between classes is development unless permitted. Key current classes include:

• Class E (commercial, business and service): a broad class including shops (not selling hot food), cafés/restaurants for consumption on the premises, offices, research and development, light industrial and certain other services.
• Class C3 (dwellinghouses) and Class C4 (small houses in multiple occupation).
• F classes for local community and learning.
• Sui generis uses (in a class of their own), including pubs, hot food takeaways, cinemas and certain leisure venues.

Key Term: curtilage of a dwellinghouse
The land immediately surrounding a dwellinghouse and forming part of its domestic setting. Incidental uses and many permitted development rights apply to development within the curtilage, subject to conditions and limitations.

Examples of Excluded Activities

• Painting the inside of a house or installing new kitchen units (internal works).
• Converting a shop to a café, where both uses fall within Class E.
• Using a garage as a home gym, if this is incidental to the main residential use.

Worked Example 1.1

A client wishes to convert their spare bedroom into a home office, with no external changes to the property. Is this 'development' requiring planning permission?

Answer:
No. Internal alterations that do not materially affect the external appearance of the building are not 'development' under s 55(2)(a) TCPA 1990. Planning permission is not required. Note that building regulations may still apply (e.g., structural or electrical work), and if the property is listed, listed building consent may be needed.

Worked Example 1.2

A national retailer proposes installing a 250 m² mezzanine floor in an existing Class E shop to increase sales area. Will planning permission be required?

Answer:
Likely yes. Although internal works are generally excluded, larger retail mezzanine floors above specified thresholds are treated as development due to their planning impact on retail floorspace. Check the local authority’s policies and applicable thresholds; if exceeded, planning permission will be needed.

Material Change of Use

A material change of use occurs when the way land or buildings are used is altered in a way that is significant in planning terms. Common examples include converting a dwellinghouse to multiple flats, a shop to a hot food takeaway (sui generis), or an office to a residential dwelling.

Whether a change is ‘material’ depends on factors such as:

• Impact on amenity (noise, smells, hours)
• Traffic and parking
• Change in planning character (e.g., introduction of a main town centre use where none existed)
• Creation of a new planning unit (e.g., subdivision into self-contained units)
• Intensification that alters the character of the use (intensity alone is not necessarily material unless it changes character)

Key Term: material change of use
A change in use that is significant enough to require planning permission, such as converting a house to flats or a shop to a takeaway.

Key Term: Use Classes Order
Changes to a different class normally constitute development; changes within the same class do not. Changes to or from a sui generis use nearly always constitute development.

Worked Example 1.3

A client wants to change a residential house into a small guesthouse (bed and breakfast) without any building works. Is this a material change of use?

Answer:
Yes. Changing from residential use (Class C3) to guesthouse use (often Class C1 or sui generis depending on configuration) is a material change of use and constitutes 'development'. Planning permission is required.

Worked Example 1.4

A landlord plans to convert a C3 dwellinghouse to a small HMO (Class C4) for 5 occupants. Does this require planning permission?

Answer:
It is a material change of use. In some areas, the GPDO grants permitted development for changes between C3 and C4, but many local planning authorities use Article 4 Directions to withdraw such rights. Check whether an Article 4 Direction applies; if so, express planning permission is required.

Worked Example 1.5

A bakery (within Class E) intends to increase output and extend opening hours, but the use remains a bakery with café seating. Is permission needed?

Answer:
Not necessarily. Intensification within the same use class is not a material change of use unless the character of the use changes in planning terms (e.g., it becomes a hot food takeaway for consumption off the premises, which is sui generis). Assess amenity impacts and whether the use remains within Class E.

Permitted Development Rights

Some types of development are automatically granted planning permission by statutory instrument, known as permitted development rights. These rights are set out in the GPDO and cover certain operational development (e.g., household extensions) and changes of use.

Key Term: permitted development
Certain types of development that are granted automatic planning permission by the General Permitted Development Order (GPDO), subject to conditions and limitations.

Common examples include:

• Small rear extensions to houses within specified size and design limits
• Installation of solar panels and other microgeneration equipment
• Certain changes of use between specified classes, including specified conversions from commercial to residential subject to prior approval

Permitted development rights are subject to detailed conditions and limitations (e.g., dimensions, materials, proximity to boundaries) and may be restricted in conservation areas, national parks and other designated land, or withdrawn locally by Article 4 Directions. For some PD changes of use, a prior approval process applies to assess specific impacts.

Key Term: prior approval
A GPDO mechanism requiring the local planning authority to assess specified impacts (e.g., transport, contamination, flood risk, amenity) before PD development can proceed. If prior approval is refused, the PD right cannot be used.

Key Term: certificate of lawfulness
A certificate confirming that proposed works or use would be lawful (s 192 TCPA) or that existing works or use are lawful (s 191 TCPA). Useful to obtain certainty before implementing PD or where immunity from enforcement is claimed.

Recent examples include:

• Class MA: change of use from Class E (commercial, business and service) to Class C3 (dwellinghouses), subject to prior approval on specified matters
• Class Q: change of use of certain agricultural buildings to dwellinghouses, subject to prior approval and strict limitations
• GPDO household extensions: rear and side extensions within specified limits and not on Article 2(3) land (designated areas), with safeguards on height and projection

Article 4 Directions

Local planning authorities can remove permitted development rights in specific areas or for specified development by issuing an Article 4 Direction. This does not change the statutory definition of development but means previously permitted development instead requires express planning permission.

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

This tool is commonly used in conservation areas, town centres and areas with particular housing pressures (for example, to control changes from dwellinghouses to HMOs). Always check whether an Article 4 Direction applies before relying on PD rights.

Worked Example 1.6

A homeowner in a conservation area wishes to build a rear extension that would normally be permitted development. However, the local authority has issued an Article 4 Direction covering the area. Is planning permission required?

Answer:
Yes. The Article 4 Direction removes permitted development rights, so express planning permission is required for the extension.

Worked Example 1.7

A developer proposes changing a vacant Class E office into four flats using Class MA. What consents are needed?

Answer:
Class MA is a permitted development right subject to prior approval on specified matters (transport impacts, contamination risks, flood risk, noise from commercial premises and the provision of natural light to habitable rooms). The developer must obtain prior approval before proceeding. Planning permission is not required if prior approval is granted and all limitations/conditions are met.

Worked Example 1.8

A farmer intends to convert a qualifying agricultural building into a single dwelling under Class Q. Is this PD?

Answer:
Potentially. Class Q allows certain agricultural buildings to change to residential use subject to strict criteria (e.g., structural integrity, not excessive new structural elements) and prior approval on specified impacts. Many proposals fail on structural grounds, so a robust appraisal and prior approval application are essential.

Practical Implications for Property Transactions

When advising clients, you must:

• Identify whether proposed works or changes of use amount to 'development'
• Check if any statutory exceptions apply (internal works, changes within the same use class, incidental uses)
• Determine whether permitted development rights are available and whether they have been restricted by an Article 4 Direction or by designated land constraints
• Consider related regimes (building regulations approval; listed building consent for works affecting a listed building’s character; advertisement consent for signs)
• Use certificates of lawfulness strategically to de-risk transactions
• Review planning histories and conditions (obligations run with the land and bind successors)
• Assess enforcement risk and time limits

Local land searches (LLC1 and CON29) and due diligence are important. Replies to enquiries (e.g., the Property Information Form) should disclose past works, permissions, conditions and notices. Where uncertainty exists, an application for a certificate of lawfulness (proposed or existing) can secure certainty ahead of exchange or completion. An applicant for planning permission or a certificate need not own the land.

Enforcement is a key practical issue. If breach is identified, consider the appropriate remedy and time limits. Immunity may apply after certain periods, but concealed breaches can be pursued without the usual time limits.

Key Term: planning contravention notice
A notice requesting information about potential breaches before formal enforcement action. Used by LPAs to clarify facts and flush out information.

Key Term: enforcement notice
A notice requiring steps to remedy a breach of planning control (e.g., stop a use, remove works). It sets out the alleged breach and the compliance period. There is a right of appeal.

Key Term: stop notice
A notice that can prohibit activities alleged to be in breach pending the effect of an enforcement notice. A temporary stop notice can be used immediately for up to 28 days.

Key Term: breach of condition notice
A notice used to enforce compliance with conditions attached to a planning permission. Unlike enforcement notices, there is no right of appeal.

Enforcement time limits under s 171B TCPA (standard position) are:

• Four years for unauthorised operational development (e.g., building works) from substantial completion
• Four years for unauthorised change of use to a single dwellinghouse
• Ten years for other changes of use and breaches of conditions

Concealed breaches (for example, where works or use have been deliberately hidden) can be addressed by a planning enforcement order with extended time limits, so the usual immunity periods may not apply. Always verify the current local enforcement stance and any statutory changes in force.

Worked Example 1.9

A seller added a rear dormer three years ago without permission. It is visible externally. What risks arise on sale?

Answer:
Unauthorised operational development can be enforced within four years from substantial completion. Here, the works are under four years old, so enforcement remains possible. Options include seeking retrospective planning permission or a certificate of lawfulness once the four-year period passes (if no enforcement action is taken). Building regulations compliance should also be checked.

Worked Example 1.10

A buyer discovers a house was sub-divided into two flats eight years ago without permission. Is enforcement still possible?

Answer:
Unauthorised change of use to two flats is not a change to a single dwellinghouse, so the ten-year period applies. At eight years, enforcement is still possible. A certificate of lawfulness could be sought only after ten years of continuous use if no enforcement action is taken. Due diligence should include checking for any enforcement notices or appeals.

Exam Warning

Planning permission is required for both operational development and material change of use unless an exception or permitted development right applies. Always check for local restrictions such as Article 4 Directions, especially in conservation areas. Where the property is listed, internal works affecting the building’s special interest require listed building consent even if they are not “development”. Building regulations approval commonly applies to many works regardless of whether planning permission is required.

Key Point Checklist

This article has covered the following key knowledge points:

• The statutory definition of 'development' includes operational development and material change of use (s 55 TCPA 1990), with demolition and engineering operations within scope
• Certain activities are excluded from the definition of 'development' (e.g., internal works not materially affecting external appearance, changes within the same use class, incidental uses)
• The Use Classes Order frames whether a change is within the same class; changes to or from sui generis uses typically require planning permission
• Permitted development under the GPDO grants automatic permission for specified works and changes of use, often subject to prior approval and detailed conditions and limitations
• Article 4 Directions can remove permitted development rights in defined areas
• Certificates of lawfulness can confirm the lawfulness of proposed or existing development/use
• Enforcement tools include planning contravention notices, enforcement notices, stop notices and breach of condition notices, with standard 4/10-year time limits and special cases for concealed breaches
• Building regulations and listed building consent are separate regimes that may apply even where planning permission is not required

Key Terms and Concepts

• development
• operational development
• material change of use
• matters that do not constitute development
• Use Classes Order
• curtilage of a dwellinghouse
• permitted development
• prior approval
• certificate of lawfulness
• Article 4 Direction
• planning contravention notice
• enforcement notice
• stop notice
• breach of condition notice