Planning Law — SQE1 FLK2 Property Law and Practice

A single-storey building on an industrial estate made furniture for years. The owner has cleared the machinery out and opened the whole thing to the public as an indoor climbing centre. No building work of any kind. Nothing altered inside or out. From the road it looks exactly as it did. He has applied for nothing, because he has built nothing. Did he need planning permission? Almost certainly, yes.

This is Planning Law, and the whole topic hangs on two questions asked in that order. Is what my client is doing development? And if it is, does it need an application, or is it already permitted? Get those the right way round and most of the rest is detail. Keep our climbing centre in mind. We are coming back to it.

Here is the route. What counts as development, which is where most of the marks are. Then the ways of getting permission, and the ways of not needing it. Then conditions and section 106. Then building regulations, which are a different system entirely. And last, enforcement, and what all of it means when your client is buying the property.

Start with the statute. The Town and Country Planning Act 1990 is the primary legislation, and section 55 gives the definition that runs the whole system. Development means the carrying out of building, engineering, mining or other operations on land. Or the making of any material change in the use of any buildings or other land. Two limbs, and the second is where candidates lose marks.

The first limb is easy enough. Operational development means physical work: a new building, an extension, demolition, excavation, engineering works. Internal alterations that do not affect the external appearance of a building are generally not operational development at all.

Now the second limb, and our climbing centre. A change of use is material if the character of the use has changed. That is judged objectively, as a question of fact and degree. Which means a change can be material even though nothing about the building looks any different. Furniture works to climbing centre, not a brick touched, and the character of the use has plainly changed.

There is a limit at the other end. A business use that stays merely incidental to living in a house is not a material change. A bookkeeper in the back bedroom, seeing nobody, is fine. The same woman with the whole ground floor as offices, three staff and clients coming and going, is a different question.

Then the Use Classes Order, and the rule that decides a lot of questions. A change of use within the same class is not development at all. So it needs no permission, and no permitted development right either. The Order was amended from 1 September 2020, sweeping most retail, restaurant, office and professional uses into a single broad Class E.

Class E is the big one: shops, cafes and restaurants, offices, financial and professional services, clinics, nurseries, indoor sport, light industry. Around it sit B2 general industrial, B8 storage, C1 hotels, C2 residential institutions and C3 dwelling houses. Then F.1 for learning and institutions and F.2 for local community uses. And some things are in a class of their own: pubs, takeaways, cinemas, petrol stations.

One more on use. A lawful use can be lost by abandonment. The courts look at the physical condition, the length of the non-use, the owner's intentions and any intervening use. Premises stripped out and boarded up for years, with no attempt to relet, may well be abandoned. Resuming the use is then a material change.

So the thing is development. Does it need an application? Not necessarily. The General Permitted Development Order 2015 grants rights to develop without one. Home extensions within size limits, loft conversions, demolition with prior approval. And some changes between classes, such as commercial premises to dwellings under Class MA.

But those rights can be taken away, and there are three ways. A condition on an earlier permission. An Article 4 direction. Or the property sitting in a designated area, a conservation area, a National Park, a National Landscape. So try one. A warehouse extension is squarely within the Order's limits, but the permission for the warehouse carries a condition that no extension may be built without consent. Can they build? No.

Where a right is conditional on prior approval, the limits matter. The authority may consider only the matters the Order lists for that right: transport, contamination, flooding, noise, sometimes design. Refuse an office-to-flats conversion because flats are out of keeping with the Victorian character of the street, and the authority has considered something it had no power to consider.

If you do need an application, choose the right one. Full permission for a settled proposal. Outline permission to establish the principle, reserving any of five matters: access, appearance, landscaping, layout and scale. Then a reserved matters application for the detail. Listed building consent for works to a listed building. And planning permission for relevant demolition, to pull down most unlisted buildings in a conservation area.

Two traps there. Conservation area consent was abolished in 2013, so demolition in a conservation area goes through planning permission, not a separate consent. And listed building consent is not about the outside. Rip out an original plaster ceiling and a carved staircase, with nothing visible from the street, and you have affected the character of the building as one of special interest.

How is an application decided? The plan-led system. The authority must determine it in accordance with the development plan unless material considerations indicate otherwise. Not a bar, and not a free hand. A clear conflict with an up-to-date local plan is the starting point, and the applicant must show something that displaces it.

Material considerations include the plan policies, national policy, layout and design, impact on neighbours, highway safety, planning history, trees and heritage. Also visual impact on the wider area and on public views. What is not material? The effect on property values. Private rights like easements and party walls. Moral objections about the applicant, and the sheer number of objectors. And the loss of a private view.

Timing. The authority should determine most applications within 8 weeks, or 13 weeks for a major development. Miss it without an agreed extension and the applicant may appeal to the Planning Inspectorate for non-determination. What the applicant may not do is treat silence as consent.

Permissions come with conditions, and a condition has to be valid. The National Planning Policy Framework puts it as six tests: necessary, relevant to planning, relevant to the development permitted, enforceable, precise, and reasonable in all other respects. Behind that sits Newbury District Council v Secretary of State for the Environment. Three requirements: a planning purpose, a fair and reasonable relationship to what was permitted, and not so unreasonable that no reasonable authority could impose it.

Newbury decides problem questions. Restricting lorry hours at a depot is fine. Requiring a screen of trees along the boundary is fine. Requiring the developer to landscape a disused yard two miles away, with no connection to the depot, is not. However precisely it is drafted, it does not fairly and reasonably relate to what was permitted.

One condition is on almost every permission: begin within three years. And beginning is a low bar. A genuine material operation carried out in time, digging and concrete-filling the foundation trenches to the approved plans, starts the development and keeps the permission alive. You need not finish, and you serve no notice electing to implement.

Then planning obligations. Under section 106 a developer agrees to provide affordable housing, or to contribute to a school or a road, to make the development acceptable. Here is the exam point. These run with the land. They bind successors in title as well as the person who signed, and they are registered as local land charges.

If the obligation becomes unviable, the developer is not stuck with it. It applies to the authority under section 106A to modify or discharge, with a right of appeal to the Secretary of State. What it cannot do is treat the obligation as lapsed, or go to the Upper Tribunal as if it were a restrictive covenant.

The community infrastructure levy is different in kind, and the difference is the point. Section 106 is negotiated. The levy is a formula charge set by the authority's charging schedule, and it is not negotiable. The developer must assume liability and serve a commencement notice before starting on site, or face surcharges.

Now the separate system. Building regulations have nothing to do with planning. They govern the technical standards of construction: structure, fire safety, insulation, drainage. Having planning permission tells you nothing about whether the work meets them. Four routes in: full plans before the work, a building notice with inspections during it, competent person self-certification, and regularisation afterwards.

Regularisation is the one to remember, because it answers the seller with a loft conversion and no completion certificate. The council can be asked to regularise after the event, and may require parts of the work to be opened up.

Enforcement. A breach of planning control is development without permission, or not in accordance with one, or a breach of condition. In England there is now a single time limit of ten years for all of them. That came in with the Levelling-up and Regeneration Act 2023, and applies where the works were substantially completed, or the change of use happened, on or after 25 April 2024.

For breaches before that date the old split still governs: four years for operational development and for a change of use to a single dwelling, ten years otherwise. Once the limit expires the development is immune. Check the date first, then pick the rule.

Unless the breach was hidden. A building was permitted as a hay barn. From the day it was finished it was fitted out and lived in as a house, disguised from the authority for years. When the owner came forward to say the time limit had run, the Supreme Court refused to let him rely on it. That is Welwyn Hatfield Borough Council v Secretary of State.

The authority can also seek a planning enforcement order to buy extra time against a concealed breach. As for the ordinary toolkit: an enforcement notice requires remedial action or cessation, and is appealable to the Planning Inspectorate within the period stated, usually 28 days. A stop notice halts activity at once, alongside an enforcement notice. Then the injunction, and direct action.

And the breach of condition notice, which is for condition breaches only. Its distinguishing feature is what it lacks. There is no appeal to the Planning Inspectorate, so the merits cannot be argued out again. So: an authority wants night deliveries stopped fast, and does not want the acceptability of night working reopened. Which notice? That one.

Last, the conveyancing end. The local search covers the planning enquiries, but a clean search proves less than clients think. It shows no enforcement notice. It does not show that an extension was lawfully built. So ask for the decision notice, the approved plans and the completion certificate. Where the paperwork is missing, establish that the breach is now immune.

Two ways to close that off. A certificate of lawfulness of existing development, which the authority must grant if the breach is immune. That is conclusive proof, and it passes to the next buyer. Or indemnity insurance, which has a bar. The seller asked the council last month whether it intended to enforce, and the council replied that it had opened a file. Insurable? No.

And two things planning does not do. A planning permission does not override a private restrictive covenant: your client still needs a release, or an order of the Upper Tribunal. And there is no third-party appeal. An objector who thinks the authority ignored a material consideration cannot appeal. Judicial review, promptly and within six weeks, is the route.

A word on how SQE1 tests this. Planning is a statutory subject, and the questions are about the scheme, not the authorities. You get a scenario, five answers, and one instruction: pick the best. There are only two case names in this whole episode, and both are there to make a rule stick.

If you keep only three. Section 55: development is operations or a material change of use, and a change within one use class is neither. Newbury: a condition must serve a planning purpose, relate fairly and reasonably to what was permitted, and not be unreasonable. And ten years to enforce, for breaches on or after 25 April 2024.

Four traps. One: a change within a use class needs no permitted development right, because it is not development. Candidates reach for the Order when the answer is that section 55 was never engaged. Shop to estate agency is not a permitted change. It is not a change the system notices.

Two: a material change of use does not require anything to look different. The test is the character of the use, as a matter of fact and degree, and the building can be untouched. Anyone who tells you the test is whether a reasonable person would notice is describing something that is not the law.

Three: planning permission and building regulations approval are two systems, and having one is no evidence of the other. The same goes for listed building consent, and for a restrictive covenant. Each is found separately.

Four: on prior approval the authority is confined to the matters the Order lists for that right. It cannot refuse on general design or neighbourhood character, and if it does, it has stepped outside its powers.

Quick check. A woman owns a small unit in a parade of shops. For several years it has been used to sell clothes. She has now agreed to let it to an estate agency, which will use it as a branch office dealing with the public. No building work is proposed. The shopfront and the fittings stay exactly as they are.

Is planning permission required before the estate agency can occupy the unit? Three candidate answers. One: yes, because a change from selling goods to providing a professional service is a change between use classes. Two: no, because both uses fall within a single use class, and a change within a class is not development. Three: no, because a change of use is permitted development wherever the premises stay in some form of commercial use. Pause here if you want a moment.

The answer is two. Since 1 September 2020 a shop and a financial or professional service both sit inside Class E. So the change is within one class, and by definition it is not development. No application, and no permitted development right needed either, because there is nothing to permit.

Why the others fail. Option one is the pre-2020 world, where retail and professional services were in different classes, and it is the single most common stale answer on this topic. Option three invents a general commercial-to-commercial right that does not exist, and it also gets the mechanism wrong. This is not permitted development. It is not development.

Five things to take away. One: section 55, operations or a material change of use, and materiality is the character of the use as a matter of fact and degree. Two: a change within a use class is not development, and Class E swallowed most of the high street from 1 September 2020.

Three: permitted development rights go by a condition, an Article 4 direction, or a designated area. Four: section 106 obligations run with the land and bind successors, while the community infrastructure levy is a formula charge you cannot negotiate. Five: ten years to enforce, for breaches on or after 25 April 2024, unless the breach was concealed.

And our climbing centre? Nothing was built and nothing looks different, and it is still a material change of use, because the character of the use has changed. That is the sentence to carry into the exam. Next time, Property Taxation.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.