Learning Outcomes
This article covers matters not requiring express planning permission under English planning law, focusing on:
- Identifying building operations and changes of use that fall outside the statutory definition of development
- Distinguishing clearly between non-development and permitted development, including the role of prior approval for certain permitted development
- Applying the Town and Country Planning (General Permitted Development) Order 2015 (GPDO) to common domestic and commercial scenarios and recognising key limitations and conditions
- Using the Use Classes framework (including Class E and Class F) to determine when a change of use within the same class is not development
- Explaining how Article 4 Directions restrict permitted development rights and how to check if a direction applies to a property
- Advising on the interplay between planning law and building regulations, including self-certification schemes and regularisation certificates
- Recognising property-specific and area-based exclusions from permitted development rights (e.g. listed buildings, flats/maisonettes, designated land such as conservation areas, National Parks and AONBs)
- Assessing when to seek a certificate of lawful proposed use or development to confirm permitted development or non-development status
SQE2 Syllabus
For SQE2, you are required to understand the practical operation of planning law in conveyancing contexts, with a focus on the following syllabus points:
- Recognising when works or changes of use amount to development under planning legislation and when they do not.
- Identifying categories of activities excluded from the statutory definition of development (e.g. purely internal works, incidental residential uses).
- Explaining permitted development rights under the GPDO, including where prior approval is required and how conditions/limitations operate.
- Understanding Use Classes (notably Class E and Class F) and the position of sui generis uses.
- Explaining the legal effect of Article 4 Directions and how they are revealed (e.g. local searches).
- Advising on property or area-based exclusions from PD rights and conditions on earlier permissions that remove or restrict PD.
- Evaluating interaction with building regulations, including certification schemes (e.g. FENSA), full plans vs building notice, and regularisation.
- Knowing the utility of certificates of lawful use or development to evidence PD or non-development.
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.
- Which types of building work do not require express planning permission under UK planning law?
- What is permitted development, and how is it established in law?
- What is the purpose of an Article 4 Direction?
- Does compliance with permitted development rights eliminate the necessity for building regulations approval?
- Give an example of a change of use that is not considered development.
Introduction
Planning law regulates what can be built or changed in the use of land in England and Wales. Not every building operation or change of use requires permission from the local planning authority. It is critical for solicitors to identify when express planning permission is not needed, to avoid unnecessary applications or to alert clients to potential liabilities when overlooking statutory requirements.
Obligations attached to planning permissions (including conditions) generally run with the land and bind successors. In practice, verifying compliance and identifying any restrictions (e.g. Article 4 Directions, designated land) usually forms part of pre-contract searches and enquiries in conveyancing.
What is Development?
Development generally means carrying out building, engineering, mining or other operations on, over or under land, or making a material change in the use of any buildings or land.
Key Term: development
'Development' occurs where there are physical operations on land or a material change in the use of land or buildings, as defined by statute.
Building works include demolition, rebuilding, structural alterations or additions, and other operations normally undertaken by a builder. Whether a change of use is “material” is a question of fact and degree. Some points to keep in mind:
- Use Classes: The Town and Country Planning (Use Classes) Order 1987 (as amended, notably in 2020) groups common uses. A change within the same use class is generally not development. Class E now covers many commercial, business and service uses (e.g. shops other than hot food takeaways, offices, certain health/medical services, indoor sport). Class F covers learning and local community uses.
- Sui generis uses: Uses that do not fall within a class (e.g. pubs, hot food takeaways, nightclubs, casinos, petrol filling stations) are sui generis. Changing to or from a sui generis use typically requires express permission unless covered by a permitted development route.
- Subdivision of dwellings: Converting a single dwellinghouse into two or more dwellinghouses is expressly treated as development and requires permission.
- Intensification: An increase in intensity of an existing use is not automatically development, but if the character of the use changes materially (e.g. a home-based activity scaling up to become a separate commercial operation), permission may be needed.
Some activities do not meet the legal criteria for development and therefore escape the need for planning permission.
Matters Not Constituting Development
Certain works and uses are excluded from the definition of development. In these cases, express planning permission is not required.
Key Term: matters not constituting development
Activities and operations specifically excluded from the statutory definition of development—these do not require planning permission.
Typical examples include:
- Works for maintenance, improvement or other alteration of a building that only affect its interior, or do not materially affect its external appearance.
- Changes in the primary use within the same use class.
- Incidental uses within the curtilage of a dwellinghouse (e.g. hobby use or a modest home office ancillary to living in the dwellinghouse).
The “internal only” exclusion will not apply if internal work creates effects that materially alter external appearance (for instance, new external openings), and large mezzanine floors in certain premises can be treated as development. For incidental residential use, ensure the activity is subordinate to the main use as a dwelling—if it becomes the primary use or materially affects residential amenity (e.g. frequent client visits, noise, deliveries), permission may be needed.
Worked Example 1.1
A client wishes to fit-out a shop with new shelving and modify its internal layout, without altering the exterior. Is planning permission needed?
Answer:
No, as these internal alterations do not materially affect the external appearance and are thus not development for planning law purposes.
Permitted Development Under the GPDO
Even if a task is 'development', some types are granted deemed consent by law. This is known as 'permitted development' under the Town and Country Planning (General Permitted Development) Order 2015 (GPDO), as amended.
Key Term: permitted development
Development for which planning permission is automatically granted by the General Permitted Development Order, removing the need to apply for express planning consent subject to defined limits and conditions.
Common permitted development rights include:
- Domestic works: Certain extensions and alterations to dwellinghouses (e.g. small rear extensions, porches, roof alterations) within size, height and siting limits, and subject to conditions. Larger home extensions may require a neighbour consultation prior approval process.
- Outbuildings and hard surfaces: Erection of certain outbuildings within the curtilage (e.g. sheds), laying of hard surfaces for incidental domestic use—subject to constraints (such as not forward of the principal elevation facing a highway and height limits).
- Minor operations: Painting the exterior of a building, and fences/walls/gates up to permitted heights (commonly up to 2 metres, or 1 metre adjacent to a highway), subject to designated land exceptions.
- Microgeneration: Certain solar panels and other renewable energy installations are permitted, with special rules near highways, in conservation areas, and on listed buildings (where separate listed building consent is needed).
- Changes of use: Some transitions between uses benefit from PD, often subject to prior approval. For example, the GPDO currently includes routes such as Class MA (commercial, business and service uses in Class E to residential C3), where strict eligibility criteria and prior approval on transport/highways, flooding, contamination, and amenity apply.
Key practice points:
- Conditions and limitations matter: PD rights are highly technical. Size thresholds, height, projection, distance to boundaries, siting (e.g. forward of principal elevation), and materials often govern PD status. If limits are exceeded or conditions unmet, permission is required.
- Prior approval: Some PD classes require prior approval from the LPA on specific impacts (e.g. transport and highways, noise, contamination, flooding, design, or amenity). No works should start until prior approval is granted or deemed granted.
- Removal by condition: Conditions on older planning permissions sometimes remove or restrict PD rights (e.g. “no extensions without permission”). Always check the property’s planning history.
Worked Example 1.2
A homeowner wants to build a single-storey rear extension within the GPDO size limits for a domestic house (not in a conservation area). Is planning permission required?
Answer:
No, it falls within permitted development rights. However, all GPDO conditions must be satisfied and the property must not be excluded (e.g. listed building or in certain designated areas). If the proposal is a “larger extension,” prior approval under the neighbour consultation scheme may be required before works begin.
Exam Warning
Some permitted development classes require prior approval. Starting PD works without obtaining required prior approval is a breach of planning control, even if the design would otherwise meet the GPDO’s dimensional limits.
Article 4 Directions
Certain areas are subject to Article 4 Directions made by the local planning authority, restricting permitted development rights.
Key Term: Article 4 Direction
A legal measure issued by a local authority that removes all or part of permitted development rights in a specific area, requiring a planning application for work that would otherwise not need one.
Article 4 Directions are typically applied to:
- Conservation areas and areas of special townscape or architectural merit.
- Areas where uncontrolled PD could harm amenity or undermine policy objectives (e.g. conversion of offices to dwellings impacting town centres, HMOs in certain streets).
- Sensitive locations where uniform design details are important (e.g. window styles, boundary treatments).
An Article 4 Direction will be revealed on the local land charges search (LLC1) and in CON29 replies. Where a direction applies, even minor works (e.g. replacement windows facing the street, small extensions, changes of use that would otherwise be PD) may require express permission.
Worked Example 1.3
A client plans to replace windows at the front of their house in a conservation area. Normally, under the GPDO, this is permitted. There is an Article 4 Direction in the area.
Answer:
Planning permission will be needed due to the Article 4 Direction. The client should confirm with the local planning authority before proceeding.
Limitations and Exceptions
Certain properties do not benefit from permitted development rights, or benefit only in restricted ways. Always verify:
- Property type exclusions:
- Flats and maisonettes (PD rights for dwellinghouses in the GPDO generally do not apply).
- Listed buildings (separate listed building consent is needed for works affecting special interest; PD does not override this).
- Designated land constraints:
- National Parks, Areas of Outstanding Natural Beauty, conservation areas, the Broads, World Heritage Sites—GPDO often imposes tighter limits or excludes PD classes here.
- Article 4 Directions removing PD in part or entirety.
- Site-specific restrictions:
- Planning conditions or legal agreements (e.g. conditions removing PD rights, s.106 obligations).
- Restrictive covenants limiting development, separate from public planning control.
Practical cautions on PD details:
- Outbuildings: Must be for purposes incidental to the enjoyment of the dwellinghouse; gyms or hobby rooms are generally fine, but self-contained living accommodation is not PD.
- Siting: Outbuildings forward of the principal elevation facing a highway are typically not PD; balconies, verandas and raised platforms are commonly excluded.
- Boundary treatments: Typical PD height limits are 2m (general) and 1m adjacent to a highway; higher or more prominent boundary changes can require permission.
- Commercial to residential (Class MA): Eligibility criteria include minimum continuous Class E use periods, floorspace thresholds, and exclusion in certain areas; prior approval is mandatory and can be refused on amenity, design, transport or flooding grounds.
Consider obtaining a certificate of lawful proposed use or development from the local authority to confirm PD status where doubt exists.
Worked Example 1.4
A homeowner proposes to run a home-based hairdressing studio with visiting clients most evenings and weekends. The activity will involve signage, several daily client visits, and regular product deliveries.
Answer:
While a modest home office incidental to residential use is not development, the proposed activity is likely to amount to a material change in use due to visiting customers, deliveries, and signage, shifting the character towards a commercial use. Planning permission will likely be required; PD rights do not usually cover this scenario.
Worked Example 1.5
A landlord owns a Class E premises and is considering conversion to residential under Class MA. The unit sits within a town centre, near a flood zone, and below the floorspace threshold for MA.
Answer:
Class MA can offer PD for change to C3, but only if eligibility criteria (e.g. continuous qualifying Class E use for the required period and floorspace limits) are met. Prior approval is mandatory and will consider transport/highways, noise, contamination, flooding and amenity. If criteria are not met or prior approval is refused, express planning permission will be required.
Interaction with Building Regulations
Key Term: building regulations approval
A separate system to planning law, requiring that most construction operations, renovations, and installations meet minimum standards for safety, use, and energy efficiency.
Planning and building control are distinct. A project may be permitted by planning law but still require building regulations approval. Conversely, building regulations compliance does not grant planning permission. Key points for practice:
- Approval routes: Full plans application (detailed drawings assessed before work starts) or building notice (simplified route for certain domestic works). Completion certificates evidence compliance.
- Competent person schemes: For specified work (e.g. replacement windows, certain electrical installations, gas appliances), approved installers can self-certify compliance (e.g. FENSA for windows, NICEIC for electrical, Gas Safe for gas). Keep certificates with property records.
- Regularisation certificates: Where work was done without building control approval, a regularisation application may be possible to bring the work up to standard. Note lender concerns and potential costs.
- Common domestic examples requiring building control: Structural alterations, extensions and conservatories (in many cases), replacement windows, new drainage or electrical installations, loft conversions, and alterations that affect fire safety.
Exam Warning
A frequent error is assuming that no planning permission means no other consents are needed. Always advise clients to also check building regulations and legal restrictions like restrictive covenants or landlord's consent in leaseholds.
Summary
Planning permission is not needed for:
- Internal works that do not affect a building's exterior or structure, and do not materially alter external appearance.
- Changes of use within the same use class (subject to nuances on intensification and subdivision of dwellings).
- Development expressly permitted by the GPDO, unless an Article 4 Direction removes that right or a planning condition limits it.
- Some minor external works (e.g. certain fences and outbuildings) within defined limits, subject to designated land constraints.
However, advisers must check for:
- Property exclusions (flats/maisonettes, listed buildings).
- Designated land or Article 4 Directions affecting the area.
- Conditions on previous permissions or legal agreements removing PD rights.
- Building regulations requirements and certification.
- Private title controls such as restrictive covenants or leasehold user clauses.
Key Point Checklist
This article has covered the following key knowledge points:
- Statutory definition of development and what falls outside it (internal-only works, same-class use changes, incidental residential uses).
- Scope, conditions and limitations of permitted development under the GPDO, including prior approval where relevant.
- The Use Classes Order, including Class E and Class F, and the position of sui generis uses.
- Legal effect and use of Article 4 Directions to restrict permitted development.
- Property type and designated land exclusions that limit or remove PD rights.
- The role of certificates of lawful use/development to evidence PD or non-development.
- Interaction with building regulations, self-certification and regularisation.
- Always check the planning history for conditions removing PD rights and private title controls impacting proposed works.
Key Terms and Concepts
- development
- matters not constituting development
- permitted development
- Article 4 Direction
- building regulations approval