When do I need planning permission?

Planning permission is required for the carrying out of any “development” of land, which includes both operational development and material change in use of any buildings or other land.

Operational development

Operational development relates to physical alteration of land or buildings with a degree of permanence, including:

  • building operations in, on or under land including (but not limited to) building demolition, rebuilding, structural alterations or additions to buildings and other operations normally undertaken by a person carrying on business as a builder (including the erection of a new building);
  • engineering operations in, on or under land including (but not limited to) the formation, or laying out, of means of access to highways;
  • mining operations in, on or under land including (but not limited to) the removal of any mineral-working deposit; and
  • other operations in, on or under land including (but not limited to) the installation of fixed parasols with heaters.

Works of maintenance, improvement or alteration which do not materially affect the external appearance of a building (i.e. internal alterations) will not require planning permission. However, if the building is listed, and such alterations affect the building’s character, listed building consent will be required.

Material change in use

Where planning permission is granted for the erection of a new building, the purpose for which the building was designed will be made lawful. If this purpose falls within a “use class” (a class of permitted use e.g. A1 - shop, B2 - industry or C3 - dwelling house), the building may also be lawfully used for any other use within that use class - for example a shop and a hairdressing salon are both within use class A1 and permission will not be required to change from one to the other.

However, a change in the building’s use from one use class to another will normally be deemed to be a “material change in use” and require planning permission (e.g. change from a post office (class A1) to a restaurant (class A3)).

It should be noted that there are a number of exceptions to this rule where changes from one use class to another are permitted without the need for obtaining planning permission. (For further information, see the Norton Rose briefing note “A Guide to the Use Classes Order”)

What happens if I didn’t obtain planning permission?

Carrying out development without planning permission constitutes a breach of planning control. Where such a breach has occurred, the Local Planning Authority (LPA) may (at its discretion) take planning enforcement action, and will do so if it would not have granted permission for the development had it originally received an application for planning permission.

Planning enforcement action will usually involve issuing a planning enforcement notice which can require various actions to be carried out within a set time period (e.g. action to ensure that the land is restored back to its original condition (prior to the unauthorised development)).

Contravention of a planning enforcement notice is an offence and the offender may be liable upon summary conviction to a fine not exceeding £20,000 or, upon conviction by indictment, to an unlimited fine.

Under what circumstances can I claim immunity from enforcement action?

  • Operational Development: Enforcement action may not be taken once 4 years have elapsed from the date on which building operations were “substantially completed”.
  • Material change of use to residential (including conversions of existing flats/houses resulting in a different number of units): Enforcement action may not be taken once 4 years have elapsed from the date of the breach.
  • Other material changes of use: Enforcement action may not be taken once 10 years have elapsed from the date of the breach.
  • Breach of planning condition: Enforcement action may not be taken once 10 years have elapsed from the date of the breach.

How do I regularise the position?

Where building operations or changes of use are immune from planning enforcement action, an application may be made to the LPA for a Certificate of Lawfulness of Existing Use or Development (CLEUD) which establishes that the existing use is lawful and that any operations that have been carried out in, on or under the land are lawful. Obtaining a CLEUD constitutes a complete defence in the event of planning enforcement action being taken.

What happens if I am buying a property which was developed without planning permission?

If a potential buyer establishes that there have been breaches of planning control, it should seek to clarify whether the breaches are immune from planning enforcement action. If the breaches are immune, the buyer should require the seller to apply for and provide a CLEUD, or at least provide a statutory declaration from someone able to confirm that the property has been used for the requisite period following the breach.

If a breach of planning control is not immune from planning enforcement action, the buyer should seek to confirm (from the LPA or the seller) whether enforcement action has been taken. In addition, the buyer should seek legal advice in relation to how to deal with the risk of future planning enforcement action (which could have significant impacts on the buyer’s business) by use of warranties and indemnities. (Note that it is not possible to indemnify a party from criminal liability, which could be incurred in the event of failure to comply with an enforcement notice. Therefore warranties and indemnities will have to be drafted on the basis that once an enforcement notice takes effect, the activity in breach of planning control will have to cease, and damages will become payable.)

What happens if I am selling a property which was developed without planning permission?

If breaches of planning control are immune from enforcement action, the seller should consider applying for a CLEUD. Where the unauthorised development is not immune from planning enforcement action, the seller may need to seek legal advice in relation to negotiating the provision of warranties and indemnities to the buyer. (See the note on warranties and indemnities above.)

What should I do if I am served with an enforcement notice?

The recipient of an enforcement notice normally has 28 days to appeal to the Secretary of State, who has the power to quash the notice and grant planning permission. The act of submitting an appeal will stop time running in relation to the compliance period specified under an enforcement notice (unless a stop notice has been served, in which case the offending building works or use will be required to cease immediately). If the enforcement notice is upheld, the compliance period will start to run again and the enforcement notice should be complied with in order to avoid criminal penalties.