The General Permitted Development Order Parts - 3-33 Q & A DCP Section 4.34

This section deals with the interpretation of the principal provisions of the Statutory Instrument entitled Town and Country Planning (General Permitted Development) Order 1995 - as amended. It also covers the equivalent legislation in Scotland and Wales, both under review at the time of writing. However, information and commentary on the GPDO will concentrate on the English Order, to which radical and controversial changes to Part 1 were made in 2008.

Q & A Part 3 – 33 4.34/109

A client of mine wishes to use space above his shop as a flat for letting.  The planning authority say that Part 3 Class F of the GPDO does not allow a flat if it is to be occupied by somebody not employed in the shop. Its argument is that there can only be a mixed use if there is a relationship between the two elements.

In Circular 9/95 accompanying the changes to the GPDO in 1995 it was stated that Class F permitted the change of use from accommodation over shops etc. to a flat provided that it was within the same planning unit, and the Order itself refers specifically to a mixed use being permitted development. This strongly points to the fact that any new flat created over a shop or A2 unit cannot be self contained if it is to be Class F permitted development. Therefore one would expect there to be a substantial amount of communality between the two uses in terms of access, use of services and ownership, but whether this extends to employment in the underneath use is debatable. Has any one had experience of a debate on this ill defined piece of planning law? Views invited.

My client needs to refurbish a hospital ward, using a temporary building in the interim. Is planning permission required or would the development be permitted under Part 4 Class A of the GPDO?

The Class has always been interpreted as providing a permission for site buildings in connection with construction works, such as builders' site huts etc. I think it very unlikely that the wording can be stretched to cover the temporary accommodation of uses displaced by rebuilding/refurbishment.

Does the creation of a new pond for wildlife (i.e. non-commercial purposes) on farmland require planning permission? I cannot find a definitive answer and different LPA's seem to adopt varying approaches.

The creation of such a pond would probably be an engineering operation and therefore development requiring planning permission. Part 6 of the GPDO only permits development if reasonably necessary for the purposes of agriculture. Therefore it would have to be argued that this was the case, and although I can see certain linkages, it might prove difficult to convince a planning authority. Even if no significant engineering operations are involved it could be argued that a material change of use from agriculture has taken place, although in relation to the planning unit of a moderately sized farm a small wildlife area might be treated as ancillary to agriculture or de minimis.

Do telecommunications operators have GPDO rights under Part 24 to enlarge existing compound areas, including the change of use of the additional land) and to erect fencing over 2 metres in height?  Some agents seem to consider that this is development "ancillary to radio equipment housing".

Just as a code system operator can develop a telecommunications installation within a fenced compound as permitted development under Part 24, so he may enlarge it under the same part, provided that the additional equipment meets the relevant tests and thresholds, and follows the prescribed process of approval.

Fencing is cited as a specific example of development ancillary to radio equipment housing in paragraph 20 of Appendix A of Circular 4/99, and so at present is captured by the 28 day prior approval procedure, whether or not the development proposed within so falls.

The height of the fencing can be more than 2 metres high. Part 24 does not have a specific restriction on fencing. As it is installed in connection with the operator's system, it falls within the definition of telecommunications apparatus and so under Class 1(a) can be as high as 15 metres, despite the 2 metre limitation in Part 2 of the GPDO.

If current reports are to be believed we are shortly to suffer a proliferation of gaudily painted speed cameras. These clearly fall within the definition of development but I know of no provision within the GPDO which permits their erection without the need to apply for permission. Local authorities and highway authorities are able to undertake certain works but these are generally required to be in connection with their statutory functions, which does not include catching speeding motorists. The police do not enjoy a similar permission within the GPDO. Would you agree that permission is required?

There is no specific permitted development right given to police authorities. This leaves me to consider whether Part 12 of the GPDO referring to development by local authorities could be applicable. Here a wide range of what could be termed street furniture is stated to be permitted development. However, due to the fact that since 1995 police authorities in England and Wales have been constituted as bodies separate from local government it would seem that Part 12 rights cannot be applicable to them. The mischievous side of me would dearly love all these ugly hulks to come within planning control, but I cannot imagine that this point has not been explored before. I look forward to receiving any input from readers.

Responses

The impression given by Part 13 of the GPDO is that this is intended to relate to the physical fabric of roads rather than items of street furniture which are permitted by Part 12. The permission given by Part 12 is also qualified as applying only in exercise of a local authority's functions which, presumably, do not include catching speeding motorists. I would be interested to hear your views as to the Human Rights Act implications of public authorities carrying out such development without the benefit of permission, should this be required.

The position is similar to that which applied at my daughter's school in respect of the installation of cycle racks. As there was nowhere in the school site more than 20m from a boundary, the provisions of Part 32 of the GPDO, which include permitted development rights for schools, do not apply. I therefore suggested to the planning authority that, since the works were to be undertaken by the local highway authority on land adjoining the highway, perhaps Part 13 of GPDO would apply. The authority disagreed but advised that it considered that the racks could be classed as de minimis and thus an application for permission would not be required. Could speed cameras also be considered as such?

In my view speed cameras are too large to be de minimis and will thus constitute development. The Nathaniel Lichfield review of permitted development rights commissioned by the ODPM explains that highway authorities have used Part 13 to justify the installation of traffic signage, lighting and other street furniture, despite the fact that the last two items appear to be permitted development under Part 12. The issue is therefore whether the installation of a speed camera, whose objective is to improve road safety, falls within the currently undefined scope of an "improvement of the highway". Although public bodies are obviously not above the law, the extent to which they might be in breach of any article of the ECHR is clearly debatable!

I am advising clients who are being troubled by HGV movements from a storage and distribution business (B8) which has recently moved onto a former industrial site (B2). The planning authority have taken the view that, although the premises are substantially in excess of 235 sqm, there is no material change of use as the previous industrial user occupied a much larger site and premises and that the provisions of Part 3 Class B(b)(1) of the GPDO do not apply. The point made by my clients is that the vehicular movements resulting from the former industrial use were insignificant compared with that which is now taking place from the albeit smaller sized (in area terms) more active and intense B8 user. Surely the provisions of the GPDO were drawn up to prevent such occurrences?

As you say Part 3 allows a movement from B2 to B8 use provided the change relates to no more than 235 sqm, and the purpose of imposing this limit must have been to provide business with some flexibility while limiting large scale changes which might have policy or environmental implications. The local authority's argument in this case is seemingly that although the GPDO might allow a change of up to 235 sqm this cannot be interpreted as meaning that changes above this ceiling would necessarily constitute a material change of use. This is right, but in all cases concerning whether the question of whether a material change has occurred one has to look at the correct planning unit. If there has been subdivision of a previous industrial curtilage a new unit could well have been created.  Therefore in this circumstance the size of the original industrial undertaking would have no relevance.

My council have taken enforcement action against Railtrack relating to the erection of high fencing erected adjacent to a railway embankment. The construction takes the form of a galvanised palisade 2.4 m in height topped by mesh taking the whole to 4.2 m.  Located on a footway serving the rear of residential property the effect on amenity may be described akin to being in prison. Railtrack argue that the fence is permitted development by reason of Part 11 of the GPDO and quote the Railway Clauses Consolidation Act 1845 in support.  Do you have a view on this matter?

Part 11 refers to development authorised by local or private Acts of Parliament. If still on the statute book such an Act which specifically designates the nature of the development and the land on which it is to be carried out, could be brought into play. Certainly the Railway Clauses Consolidation Act is still operative and gives a wide ranging continuing power to do all acts necessary for the making, maintaining, altering or repairing or using a railway. Whether the construction of peripheral fencing falls within these powers is, however, a matter for a legal opinion. It also has to be considered whether Part 17 of the GPDO permits the fence in dispute. Here it needs to be argued whether the erection of security fencing is development "required in connection with the movement of traffic by rail", and it is by no means clear cut as to whether this includes fencing.

Does Part 4 Class A of the General Permitted Development Order 1995 allow the construction of a temporary access to a development for which planning permission has been granted?

Amongst other types of development this Part allows "works" required temporarily in connection with and for the duration of operations. I would have thought that a temporary roadway, say required to get building materials onto a site, would reasonably be included in this description. However, if the roadway gives access onto a classified road, Article 3(6) comes into play which states that nothing in the Order shall permit the creation of such an access.

I am currently dealing with a proposal to lay a rising main running both within the public highway and on private land which will connect approximately 200 dwellings to a public sewer. The work is proposed by private contractors who do not act on behalf of the sewerage undertaker for the area. In such circumstances are Part 16 permitted development rights available?

The heading to Part 16 states that the Class allows "Development by or on behalf of a sewerage undertaker". Therefore there does not seem too much doubt that works undertaken by others are not permitted development, and that express planning permission would be required.

Part 6 of the General Permitted Development Order 1995 does not give deemed consent to agricultural activities relating to the deposit of waste materials. Are there other materials that may be distinguished, for instance by a certain proportion of inorganic substances or by having been excavated expressly for the purpose of deposition?

Neither the Planning Act or the Order itself provide a definition of what is meant by "waste materials", leaving the question what type of materials may be imported onto a farm to be determined in the light of particular cases. One appeal decision from Hampshire in 1989 is of particular note where an inspector dealt with an enforcement notice relating to the deposition of materials on agricultural land .in order to ease valley slopes. It was argued that the deposition had not been of waste and was permitted development but the inspector noted that it comprised of soil mixed with builder's waste such as bricks and concrete. He concluded that as the material had been obtained from a building site and was of no value to the building process, it was "waste". In another case from Wales clay soil which had been imported on a farm to improve agricultural land quality was held not to be "waste".

The GPDO at Part 4 Class A gives a permission for temporary buildings required in connection with the operations to be carried out on the land. I imagine that this concession was intended to allow builder's site huts and stores related to large construction projects, but I wonder if such temporary structures would be permitted in the garden of a single house being converted and renovated.

I see nothing in the wording of the Class which sets any minimum size limit to qualifying operations. This was confirmed in an appeal case from Canterbury where an enforcement notice was quashed concerning a corrugated building being used to house plant and machinery in connection with the long term renovation of a listed house. The inspector in this case agreed that the term "operations" could cover works such as the internal refurbishment of a building, even if development as defined in the Town and Country Planning Act 1990 was not involved. It follows that provided that the temporary structures are required for the specific purpose and duration of the conversion operations, they would be permitted development no matter what the size of the scheme.

Does the right conferred by Schedule 2 of Part 3 of the GPDO 1995 have to be interpreted by reference to whether a mixed use is being undertaken within the relevant planning unit?

Schedule 2, Part 3, Class A of the GPDO grants planning permission for the change of use of a building to a use falling within Class A1 of the Use Classes Order from a use for the sale, or display for sale, of motor vehicles. The latter clearly encompasses car dealerships and showrooms. Providing the use has been lawfully implemented, there is no requirement in the statute to assess whether the sale or display for sale of motor vehicles, formed part of a mixed use. Indeed it would seem illogical to assume that in drafting the terms of the Order, Parliament would have failed to acknowledge that car showrooms include ancillary offices and vehicle preparation areas which form part and parcel of the use of a building for the sale or display for sale of motor vehicles. If that assumption were made, it would in all probability nullify the terms of the Order which would be illogical.

My client has a timber and general materials cash and carry business which has an office at first floor level. Could this type of business be considered a "shop" under the General Permitted Development Order 1995 (GPDO) whereby the office could be converted into living accommodation?

Part 3 Class F of the GPDO allows a change from a shop as defined by use Class A1 to a mixed use of a shop with a single flat over. If the office you mention is ancillary to the business, the primary use of the whole building could be considered to be an A1 shop if the trading pattern is of sales mainly to the public rather than on a wholesale basis. Whether this is so is a matter to be considered on the facts of each situation and there are no clear rules to be derived from cases. You need to establish whether your local authority is prepared to accept that the planning unit falls within Use Class A1, and if not apply for a Lawful Development Certificate and go to appeal if the decision remains adverse. However, I would not rule out the possibility that there might be no planning objection to the flat in the first place, given many local authority policies which seek to encourage residential uses in town centres.

I am confused by Part 3 class F of the General Permitted Development Order 1995. Does it permit a person to reduce the amount of retail floorspace on the ground floor in order to provide living accommodation at the back of a shop, provided that it is part of a flat on the first floor? If so it appears possible to end up with a ludicrously small retail floor area at the front. Am I interpreting this part of the Order correctly?

This section of the Order was intended to give a permitted development right for the creation of single flats over shops. It was introduced to facilitate the creation of additional housing in town centres using accommodation which would otherwise lie unoccupied, but has not been widely used. As is your experience the conditions accompanying Class F are exasperatingly difficult to interpret. It seems that F.1(a) requires the existing shop use to be wholly or partly below the flat created which would allow a ground floor flat where there is a basement shop. However, condition F.1(b) indicates that if there is a shop front none of the ground floor shall be used in whole or in part as the single flat. As conventionally there is likely to be a ground floor shop front, F.1(b) would seem to exclude the use of this level to accommodate the whole of a flat, but does not specifically exclude use for part of a flat. Therefore, I have to agree with your interpretation that provided part of a flat is above the shop there is nothing to prevent part of the ground floor being used in association. At a minimum this would allow a lobby/staircase to the upstairs flat, but could extend to several rooms. In the latter circumstance, as you envisage, the retail element could be reduced to little more than a kiosk.

When determining the appropriate permitted development rights available to schools under the control of local authorities, which part of the GPDO should be applied? Should it be part 12 "Development by local authorities" or part 32 "Schools, colleges, universities and hospitals"? Opinions in this council vary, with some advising using both parts.

On the face of it both parts are applicable to local authority schools, and either may be used according to the circumstances of the case. Therefore if a deemed permission is not given by one part the other may be utilised.

My authority has just received an appeal decision quashing an enforcement notice in respect of the creation of a hardstanding on agricultural land. Could you please clarify the following. The inspector stated that because the area of hardstanding is less than 0.5ha it was permitted development under part 6 class A.2(2)(c) of the General Permitted Development Order 1995 (GPDO) and it did not require prior notification before commencing works. Our understanding is that prior notification is always required for any works under Part 6 and that as such, if works are carried out without notification, a full planning application is required. Also the inspector judged that although the hardstanding was within 25 m of a ‘C’ class highway, the definition of a classified road applied only to ‘A’ and ‘B’ class road. He quoted the Encyclopedia of Planning Law and Practice as a reference, but the view of our authority is that a classified road may be a ‘C’ class road.

In respect of the first part of your question part 6 class A of the GPDO certainly gives a permitted development right for the deposit of material to form a hard surface necessary for agricultural purposes, with the proviso that if the area to be covered exceeds 0.5 ha the prior notification procedure applies. As in the case you cite the area is less than 0.5 ha, the inspector’s assessment would seem to be correct.

The second part of your query relates to page 39016 of the Encyclopedia which gives commentary on the definition of a classified road. Here it is stated that "For all practical purposes the category includes all A and B roads which are not trunk roads." However, as noted in a reply to an earlier query (Planning 1 February 2002), the weight of evidence is that the term "classified road" does refer to classes A, B or C. Clearly this inspector should not have relied on the Encyclopedia in this instance, and he would have been well advised to cross check with other published references such as Development Control Practice.

Many rail operators have used sidings and so on for the provision of car parking for their customers, under the terms of part 17 of the General Permitted Development Order 1995 (GPDO). A natural extension to this would be the erection of structures on such land so as to provide more car parking space, perhaps including an ancillary store/office. I expect all such development is permitted by the GPDO but have there been any decisions to the contrary?

Part 17 allows railway operators to undertake development on their operational land, but an attendant condition states that unless "wholly within a railway station" the "construction or erection" of a car park is not permitted. This seems to indicate that a building to be used as multi-storey car park is not permitted development unless confined within the structure of an existing railway station, but part 17 does not specifically refer to the position regarding the use of open railway operational land in the vicinity of a station as ground level parking for staff or passengers. My inclination is that such a use is permitted development, but there have been no cases of which I am aware to have tested this point.

It is my understanding that builders’ compounds can be erected for a temporary period on the site of construction work or on land adjoining the site under the provisions of class A part 4 of the General Permitted Development Order 1995. However, I am struggling to find a definition of the term "adjoining". Would the division of the compound from the site by a road 5.5 m wide fall within permitted development rights?

There is no definition in the Order of the term "adjoining" and I cannot identify a case to have debated the point. My feeling is that the term should be interpreted as meaning "immediately next to" which would exclude land "across the road", but I wonder if any reader has any more positive input to the question?

Response

In all my previous authorities, north and south of the border, a lenient view has been taken to permit builders’ compounds to be erected across the road from building sites, for two pragmatic reasons. First, it can facilitate getting contractors’ plant and vehicles off the public road. Second, the Order requires land to be reinstated, so no permanent damage is caused. On a related issue my authority is considering whether builders’ sales offices should be treated similarly.

Our local authority considered that the formation of a fenced play area, containing basketball hoops at either end, constituted permitted development under schedule 2, part 12 of the General Permitted Development Order 1995 (GPDO) . The development was on an existing play area owned and maintained by the council and no part of the ‘works’ or ‘equipment’ exceeded 4m in height. There is debate as to whether part 12 covers such development and also concern that an Ombudsman has considered that the play area has a "capacity" that exceeds the 200 cubic metre limit set out in part 12.

Part 12 grants planning permission to a local authority to erect or construct any small ancillary building, works or equipment on land belonging to them for the purpose of any function exercised by them on that land. This right is subject to the caveat that such ancillary buildings, works or equipment do not exceed 4 metres in height or 200 cu metres in capacity.

The term "function" includes powers and duties whereby a local authority may hold land for public open space purposes including its recreational use. While the Planning Act states that "building" includes any structures or erections (or parts thereof) the GPDO within Article 1 states for its purposes that "building" does not include any gate, fence, wall or other means of enclosure. Article 1 also states that "cubic content" means the cubic content of a structure or building measured externally.

It would appear that the creation of the surfacing and provision of the basketball hoops would fall within part 12 provided the latter do not exceed 4m in height. The fencing, if it does not fall under the heading of "equipment", would appear to be subject to the permitted development maxima given by part 2 of the GPDO. I would not subscribe to the view that a fenced open-air play area can have cubic capacity as this must refer to the physical limits of a building or structure. The quoted ombudsman’s finding does not rest comfortably with this. Does any reader have a view on this matter?

My organization is involved with an activity that appears to be undertaken under 28 day temporary use rights given by Part 4 of the GPDO. The operator has indicated that he intends to undertake the activity for up to 28 days each year for the next three years. I seem to remember reading somewhere that in such a circumstance the activity could be considered a permanent use requiring planning permission, albeit on an intermittent basis. Could you help?

A mere statement of intent to carry on a use within the ambit of a permission given by the GPDO is, of course, no basis upon which require planning permission on to instigate enforcement action. However, there are court cases to show that enforcement action may be taken against a use ostensibly relying on Part 4 permitted development rights but where the local authority has reasonable cause to consider that the use is not intended to be temporary. These are described at (4.3424).

I seek your opinion on a current dispute concerning the interpretation of Part 24 of the GPDO relating to the installation of telecommunications equipment. An operator seeks to install antennas mounted on a single pole on a building which is less than 15m in height, but is within 20m of a highway. Normally antennas on a wall facing the highway fail to meet permitted development criteria. However, the frontage of the building is such that the gable on which the equipment is to be mounted is set back 4m behind the front main wall of the building, although still within 20m of the highway. Is this recessed roof gable wall likely to be considered to directly front the highway.

The GPDO states that an installation is not permitted if it is to be located on a wall or roof slope facing a highway which is within 20 metres of the building or structure on which the antenna is to be situated. Your case is evidently that because the wall on which the equipment is to be mounted is not actually the principal front main wall of the house it is not to be counted as a facing elevation. I cannot identify a telecommunications case where this particular point has arisen, but it seems to me that even if a wall is recessed it is still "facing a highway", and therefore the operator would need express planning permission. In the case of householder permitted development rights at Part 1 of the GPDO a similar control exists, but here the wording allows development to the front of a house facing a highway if it is totally  recessed behind the forwardmost part.

I have approached my local planning authority with regard to the parking of a mobile ice-cream van on my local promenade. I already have a concession and street trading licence. I propose to drive onto the promenade daily for the summer period for approx 3 months of the year. I will park in the same position every day but will drive the van off the promenade each evening. The van is completely self sufficient and I do not plan to have any seating for customers. I am of the opinion that I may do this for a period of not more than 28 days a year as permitted development. However I have been advised by my local planning authority that in any event I will require a formal application for change of use of the promenade. I am aware that I am able to trade in any street within my district without a change of use application, I assume that the same is applicable for the promenade. Can you help?

Planning permission is required for the change of use of an area of the public highway to a mixed use as public highway and the sale of food. Although your proposed use may take place for only three months in any one year this could be sufficiently continuous and regular for there to have been a breach of planning control which could be enforced against. It is true that you could utilize the 28 day rule, but any extra days in any one calendar year would need planning permission. I imagine that the reason why planning permission is not required for street trading in other places is that the designated areas have long standing use rights.

I have been in discussion with a planning authority over the use of a former stable block constructed in the late 1980's for the keeping of poultry. The site operated as a fishery until recently and the former stable block was used in association with that use. The fishery has since closed. The owner has erected various structures on site for keeping of poultry and the stable block has been altered by blocking up doors and attaching structures to it also for the keeping of poultry.

Both the structures and former stable block are within 400 m of residential properties in separate ownership and whose residents have complained about the activities for several years now. The planning authority accept that the free standing structures require planning consent and that the land in question is not an agricultural unit or holding.  However, with regard to the use of the stable block, the view is that the keeping of poultry falls within the definition of agriculture and is not development as per sec.26(2)(e) of the Town & Country Planning (Scotland) Act 1997.

In your opinion has there been a breach of planning control?

The law in England and Wales is the same as that in Scotland. At sec. 55(2)(e) of the 1990 Act it is stated that the use of any land for the purposes of agriculture and the use of any building occupied with land so used, is not development. As the keeping of poultry falls squarely with the definition of agriculture it follows that use of the stable building for that purpose does not require planning permission so long as the land as a whole can be said to be in agricultural use.

However, sec. 55 (sec. 26 in Scotland) only refers to the use of land and buildings and new physical works such as the alterations, extensions or the other structures that have been erected are development requiring planning permission. But such development may be exempt from express permission by reason of the rights given by part 6 of the GPDO, although it is difficult to be definitive without more information due to the many complexities in the Order. If, as you say the planning authority does not think that the holding is an agricultural unit, this would rule out any rights at all.

In summary, assuming that the council has control over the new works and sustainable reasons for refusing them planning permission, it is still possible for the poultry use to remain in being but limited to the extent that it can use the existing land and building.

A local farmer has been running a "maize maze" attraction in a field using another field as a car park. This has been very popular but has created a create deal of congestion and annoyance to myself and other residents living close to the narrow lane which serves the site. The use has now ceased as the corn has been harvested for animal feed, but what planning controls are possible in anticipation of resumption next year?

This activity is a material change of use of the land while it lasts but may operate for 28 days in any calendar year using the rights given in Part 4 Class B of the GPDO.  You need to ask your local planning authority to advise the farmer in question of this limitation and to request a planning application from him if it is intended to exceed the 28 day allowance in 2004.

Can a single telecoms operator install without prior approval multiple items of radio equipment housing with a cumulative content over 2.5m3 where, for example, they are attached to one piece of de minimis ancillary support grillage or adjoined by cabling? There seems nothing in Part 24 of the GPDO, PPG8 or best practice to prevent this.

I cannot identify a case where this issue has been raised. Has any reader experience of debate on the point?

Network Rail (NR) are proposing a system of 30m high masts throughout the country to facilitate better communications between drivers and signalers in the light of the Ladbroke Grove tragedy. The assumption is being made that they do not require planning permission by virtue of Part 17 Class A of the GPDO, but does Part 17 take precedence over Part 24 relating to development by telecommunications operators? It seems strange that such masts can be of unlimited height while other operators are restricted by the planning system to half the height proposed by NR.

Part 17 allows developments by railway undertakers on their operational land, required in connection with the movement of traffic by rail. There seems little doubt that so long as the masts you mention are kept within the boundaries of operational land, they are permitted development regardless of height. A permission given by one part of the Order is not annulled by another part which does not provide for it.

This anomaly was discussed in the recently published  report Review of Permitted Development Rights leading to the recommendation to the government that Part 17 of the GPDO be amended to require permission for railway telecom masts where above 15m and prior approval where below 15m.

I am sure that this question must have been asked before but do telegraph poles require planning permission?  There is a general consensus in the office that they have permitted development rights but we can’t find the relevant part. Your advice would be welcomed.

The erection of a telegraph pole is operational development requiring planning permission. There does not seem to be any specific deemed permission given by the GPDO unless covered by Part 24 relating to "the installation …of any telecommunication apparatus".

Does any reader have the answer?

Response

The answer is in the definition, which goes back to the Telecommunications Act 1984. This includes, as Circular 16/85 described it, "any wire ... together with any structure, in, on, by or from which any telecommunication apparatus is or may be installed, supported, carried or suspended."

We have received an enquiry about permitted development under Schedule 2, Part 6, Class A, of the GPDO.  It is proposed to erect an agricultural building which complies with the criteria, including A.1 (h).  However, the building would be within 400 metres of land which has planning permission for a new dwelling (a protected building). The works for the dwelling have not commenced, however the permission is still alive.  Would the planning authority have the right to refuse a Prior Approval application on the grounds of a protected building which, although not currently in place, could be constructed in the future?

An extant permission is a material planning consideration. Although the principle of the proposed building may not be challenged by the Prior Notification procedure, if you are satisfied that it would unacceptably harm the living conditions of the future occupiers of the approved dwelling, I think that a refusal would be justified in order to achieve an acceptable re-siting of the development.

Response

In reply to the agricultural prior approval enquiry your advice misses the point. It would be relevant if this was a planning application, but it isn’t. Planning permission is granted by the GPDO, but is "not permitted" if a livestock building is to be built within 400m of someone else's house. The alternative scenarios are thus: 1) the barn is built before the house, in which case it is permitted development and the correct prior approval procedure has been followed; or 2) the house is built first, in which case the prior approval procedure is irrelevant (because the livestock building would then not be PD), and a planning application would then be necessary.

The second scenario is irrelevant as the house has not been built. The issue is whether, having exercised its right to require a prior approval application, the authority is entitled to take into account the permission for the new dwelling and consider the effect of the proposed development on its living conditions, in order to control the siting of the farm building. Notwithstanding the advice of PPG7 (and its equivalents), which seeks to limit planning controls over such applications, I think it would be unreasonable not to do this. In an Ombudsman case in 1998 which concerned a prior approval application for a farm building that was permitted development, and its impact on the amenities of the complainant’s dwelling, it was found that a council had relied too heavily on the advice in PPG7 as this cannot, of itself, make immaterial what in fact may be material. The inconsistencies in the way that authorities operate the prior approval procedure and the considerable difficulties caused by Part 6 of the GPDO are highlighted in the Review recently undertaken on behalf of the ODPM.

The owner of an agricultural holding operates a car boot sale on 14 Sundays during the summer season. Recently the same site has also been used for a second-hand, plant hire auction, presumably under the 28 day rule (14 days used for car boot sales, leaving 14 days for other appropriate temporary uses). The auction takes place on a Friday and Saturday. However, several days before the official viewing day (Thursday), hundreds of machines are delivered on low-loaders. Several days are also taken up after the event, removing the items of plant. When does the clock actually start running in terms of the 14 day allowance remaining? Is it just the formal 3 day event? Or could we include the (say) 7 days before and the 7 days after used for "setting-up" and clearing the site? That would result in 17 days, plus the intervening Sunday when, although nothing happened, the sold and unsold items of plant remained on site (a total, therefore, of 18 days).

The clear intention behind the provisions of Part 4 of the GPDO (Temporary Buildings and Uses) is that when land is not used for any temporary use permitted by the Order, its original character is preserved and thus its normal use may continue. It therefore follows that if any associated temporary structures or goods are stationed on the land on non-trading days, then such days should be considered as counting towards the 14 day annual limit.

We have recently received notice from a telecommunications operator that it will be erecting a temporary mast (height not specified) under "emergency powers", as outlined in Schedule 2 Part 24 Class A (b) of the GPDO. It accepts that the mast would be for a period not exceeding six months. Because of its tight timeframes for securing sites (November 2003), the operator believes it is now able to use these emergency powers. It suggests that because "emergency" is not defined in the GDPO we must use the definition in the Telecommunications Act 1984. My authority is concerned that this operator is using this "loophole" to implement a telecommunications system without permission and that the Telecommunications Act’s definition of emergency will allow them to erect masts of any height in any location (even an AONB). Surely a temporary planning consent would be required as an emergency must relate only to a problem with an existing mast or fully operational system? Are you aware of any cases where this has been debated?

A similar query has been raised before and I agree with your analysis. My reading of Part 24 (Class A) (b) of the GPDO is that this emergency provision relates only to the replacement of existing unserviceable telecommunications apparatus and cannot therefore be used as a cover for rolling out a new network that has fallen behind schedule.

My authority has a case where a 3 storey block of prefabricated offices used by contractors working to upgrade a railway line has been constructed on the service yard of the station’s former parcel depot. Is it permitted development under Part 17 Class A of the GPDO because it is "required in connection with the movement of traffic by rail"? This is debatable, and if so does it meet the requirement of being "wholly within a railway station"? The building is on railway land, adjacent to the station buildings but not within them. My interpretation is that the type of development defined by Part 17 includes newspaper kiosks, mess rooms and ticket offices constructed on station platforms or within booking halls. However, this does not include any kind of office beyond the station building, such as on a station car park, servicing areas or adjacent sidings. What is your view?

Although the scope of this Class has been considered by the courts, I am not aware that the phrase "wholly within a railway station" has been defined. The recently published Review of the GPDO commissioned by the ODPM acknowledges that this has given rise to disputes and "can be considered for example as comprising just the station buildings and the platforms or the entire demise of the station including the station forecourt, transport interchange area and car parks". Particular problems are reported on the latter. My own view, based on the exclusions outlined at A1 (c) (ii), is that those who drafted the Order probably intended that the wider interpretation be made. Works required in connection with the movement of traffic by rail have been held to include buildings, plant, storage and loading/unloading facilities. In this instance, therefore, there appears to be a good case for the office building being considered as permitted development.

Response

As a comment on the query regarding permitted development and statutory railway undertakers in Greater London a definition was included in the GLA Act 1999 at s239 which defines 'station' as meaning "any land or other property which consists of premises used as, or for the purposes of, or otherwise in connection with, a railway passenger station or railway passenger terminal (including any approaches, forecourt, cycle store or car park), whether or not the land  or other property is, or the premises are, also used for other purposes".

I am dealing with an extension to an industrial building under Class A to Part 8 to Schedule 2 of the GPDO. The volume limitation is 25% of the size of the original building, subject to not increasing the floor space by more than 1,000 square metres. The proposed extension is a canopy with no walls. If we wished to enclose the space underneath later, would this still be permitted development or would the changes be held to materially affect the external appearance of the building and thus require planning permission?

There is, in my view, an apparent contradiction between the physical limitations set out under class A and the requirement that the development should not materially affect the external appearance of the premises. This is acknowledged in the ODPM commissioned review of permitted development rights, which highlights the fact that many feel that the external appearance test effectively removes many of the rights granted by this class. The review therefore calls for clarification so that the test applies to the industrial site as a whole, rather than to an individual building. This seems to me to be a more reasonable approach. In these circumstances, provided the additional works to the canopy do not result in the dimensional tolerances being exceeded, I think that the completion of the extension would be classed as permitted development.

My client has erected several moveable poultry sheds but the planning authority claims that these are not mobile and fall within the definition of operational development. As they are permitted development under Part 6, Schedule 2 of the GPDO 1995, the normal procedure would be to submit a prior notification application (PNA). However, since the buildings have already been erected the authority maintains that a retrospective PNA is not possible and requires an application for full permission involving a substantial fee. Is the authority right and if so, should it confine its determination to those matters relevant to a PNA, that is siting, design and external appearance, or can it take all material considerations into account?  I can find no relevant regulation, case law or guidance on this matter.

Advice in Annex C of PPG7 explains that whilst moveable poultry shelters may not be buildings in planning terms, this may not be the case if structures are placed on foundations secured to the ground and have facilities such as an integral water supply. Each case must therefore be determined on its merits.

If the poultry sheds here are held to be buildings, they cannot benefit from permitted development rights as Part 6 makes it clear that these are conditional on the prior notification procedure being followed "before beginning the development". The idea of a retrospective PNA is clearly a contradiction in terms and I therefore agree with the planning authority’s stance. As the authority is not caught by the guidance in PPG7, which seeks to limit the consideration of applications for prior approval, in my view there is a strong argument to be made that it would be entitled to take all material considerations in account when deciding the planning application. These could include the principle of the development and its impact on neighbouring living conditions.

My authority has received an enquiry about the construction of a concrete base for a silage clamp, on a farm in excess of 5 ha. In the authority’s view, it is an engineering operation that is permitted development under Part 6 A (b) the GPDO 1995 and does not require prior notification. However, the farmer has said that he may want to add 3m high metal side walls in the future. Would these still be classed as permitted development under A1 (f), which has a height limit of 12m, or would they be assessed as a means of enclosure under Class A, Part 2, which sets a limit of 2m above ground level?  Can Part 2 be used to take away rights under Part 6?

It seems to me that the answer turns on understanding the difference between a building and a means of enclosure. In essence, Class A of Part 6 Schedule 2 of the GPDO grants permission, subject to an extensive range of exclusions and conditions, only for development comprising the erection, extension or alteration of a building, or any excavation or engineering operations which are reasonably necessary for the purposes of agriculture within that unit. But Article 1 of the Order expressly excludes walls or other means of enclosure from the definition of ‘building’ for the purposes of Schedule 2, except in the case of Class B of Part 31 and Part 33. Thus, in my view, the walls proposed here would not be permitted development under class A1 (f). Instead, they would fall to be considered under Class A of Part 2, which deals with minor operations.

My client is considering using land for growing plants and selling these and other produce, including that imported from other sites. PPG7 explains that farm shops selling unprocessed goods produced on that farm with a minimal quantity of other goods is a use that is ancillary to the farm and does not require permission. However, if a significant amount of produce from elsewhere is sold, that is a separate use requiring permission. Is there any guidance or case law to clarify what is a significant amount that can be sold without permission? In addition, in relation to permitted development rights for erecting agricultural buildings, presumably a building designed as a shop would automatically require permission but the use of an existing building as an ancillary shop would not?

In Allen v SoS & Reigate & Banstead B.C 1989 the court held that an inspector who had concluded that the selling of plants and shrubs not produced on the holding that comprised 10% of sales took a retail use outside of being the ancillary category, was entitled to do so. This figure has become a benchmark used by many authorities and has been generally supported on appeal.

If its use is ancillary to agriculture, it may be argued that a farm shop building enjoys GPDO Part 6 rights, subject to the conditions in that Part. This is supported by Monmouth D.C. v SoS. for Wales & Bowen 1993, where the courts upheld an inspector’s view that a building at a farm shop area was reasonably necessary for the purposes of agriculture within a holding and was permitted development.

I have just received notification from The Planning Inspectorate that two telecommunications mast appeals lodged in my district against refusal of "prior approval" under part 24 of the GPDO cannot be dealt with further as the development does in fact require planning permission.  The Inspectorate argue that a lightning finial is part and parcel of the mast and that consequently the 15m permitted development limit is thereby exceeded. Its view is that the principle of de minimis is inconsistent with the absolute terms of the GPDO.

This decision raises fundamental questions about the status of some existing masts previously treated as permitted development, as well as for the future control of masts with the same finial. What is your view?

This question arose in a Welsh LDC appeal case determined in June last year (DCS No: 41674793) where a lightning finial extended 50cm above the permitted 15m. The local authority maintained that the finial should be considered as part of the mast headgear, but an inspector disagreed. He felt that the headgear on a mast was designed to support the antennae whereas a lightning finial could be installed in any position that served its purpose to protect the mast from the effect of an electrical storm. However, it was considered that the finial was an integral part of the development the subject of the appeal. But the inspector went on to state that the lightning finial was an extremely insignificant element consisting only of a short, very thin piece of metal which would be barely noticeable at the top of the mast. As such he ruled that that it would be so insignificant that it must be regarded as de minimis and an LDC was issued confirming that the mast in question was permitted development.

This inconsistency needs to be explained by the Inspectorate, but I can see where it is coming from in now seeking to draw a line in the sand. Otherwise the numerical limits in the GPDO would carry the implicit qualification that they may be exceeded provided the amount is not significant. This only serves to introduce further uncertainty into the administration of a part of planning law already riddled with interpretation problems. There may be a distinction to be made between development which is an addition to an existing structure, such as domestic television aerials averred to be de minimis in PPG8, and development where there is an excess over the totality of a new structure.

Response

I recall that several years ago my authority requested full applications for masts where the finial height took the structure above the permitted development limit. The company concerned produced lengthy counsels opinion to the effect that the finial was de minimis. While I disagree with that conclusion, the authority relented as at it was not worth the cost and hassle of contesting the issue. I share your view that the height of the mast should include the finial. On the other hand I would readily agree that the addition of a lightning conductor finial to any existing structure should be treated as de minimis in most cases.

Part 24, Schedule 2 of the GPDO 1995 allows a telecommunications code systems operator to install a mast to cover an 'emergency' situation. PPG8 refers to a definition of an emergency from the Telecommunications Act 1984, which includes the "interruption of any service" and "substantial loss to the operator". Would a temporary mast to replace one undergoing scheduled maintenance fall within this definition?

Class A (b) of Part 24 requires that such development relates to moveable apparatus or structures needed for the "replacement of unserviceable telecommunications apparatus" and is permitted only for a period not exceeding 6 months. The definition of 'emergency works' given in the Telecommunications Act 1984 includes "works the execution of which at the time it is proposed to execute them is requisite in order to put an end to, or prevent, the arising of circumstances then existing or imminent which are likely to cause" the situations you describe.

While this definition is helpful as a general guide, what constitutes emergency development will be determined on the facts of each case. Although it is arguable whether scheduled maintenance work would fall within the definition in every instance, in my view where this would result in an interruption to an existing service that could be prevented by a temporary mast, the latter will fall within the scope of Class A (b). Of course without such works, a permanent mast could become unserviceable and thus require replacement in any event.

Are there any cases of planning authorities requiring permission for speed cameras on a highway verge? I maintain that they amount to development and as the police do not enjoy any permitted development rights presume that permission is required. I know that many cameras are installed under partnership arrangements with local authorities, but even so the GPDO does not appear to make provision for Gatso cameras under the works permitted by highway or local authorities.

When this issue was discussed before (Planning 30 August 2001, p19) it was agreed that speed cameras fall within the definition of development. While Part 12 of the GPDO grants permission for development by local authorities, since 1995 police authorities in England and Wales have been constituted as bodies separate from local government and thus rights under this part cannot apply. However, where such cameras are installed by highway authorities acting on behalf of the police, I think it could be argued that they should be treated as similar to road signage and thus be considered improvement works on land adjoining a highway that is expressly permitted under Part 13. There is no mention of this matter in the ODPM commissioned review of permitted development rights published in September 2003. Perhaps an authority with experience of this matter can assist?

The check-in facility for a proposed airport extension is well within the 15% tolerance allowed by Class A, Part 18, Schedule 2 of the GPDO but will lead to a 50% increase in passenger handling capability, from 4 millions to 6 millions a year. No Environmental Impact Assessment is involved.  Nevertheless, I have advised that permission be sought so that there is no suggestion of covert development. The issue is whether or not the planning authority has any legal powers to determine the application as the proposed development is already permitted by the GPDO? I know from my old days in local government there was one school that held if you apply for permission the planning authority has a duty to determine, while another held that the authority had no status.

I am not aware of any duty on planning authorities to determine applications for development that is permitted by virtue of the GPDO, or of any specific guidance on this matter. Indeed my experience is that where authorities have failed to recognise that the subject of a planning application is permitted development and have sought to refuse or control this, at appeal they are liable for an award of costs on the grounds of unreasonable behaviour. If you are satisfied that the proposed check-in facility is permitted development, there seems no point in applying for express permission. The correct procedure, and one that would be equally transparent, would be to apply to the authority for a certificate of lawfulness for the proposed development under sec 192 of the 1990 Act, confirming that the operation does not constitute development for which the authority’s permission is required.

On a holding of less than 5 ha, the owner of a portal frame barn that had not been used for agriculture for many years but used for storage purposes, has recently started to use part of it to rear about 150 goslings. This has required some minor alteration to the building. Although not a farmer, he has also started to keep pigs on the land, all of which is within 400m of my client’s home, a "protected building". They are convinced that livestock has been introduced to intimidate and cause a nuisance. In addition, two caravans have been sited, one of which is occasionally lived in.  The planning authority says there has been no breach of Class B, Part 6, Schedule 2 of the GPDO 1995. It maintains that no development has taken place, the caravans are chattels and that one can be used for casual residential use. Is it right?

Subject to various qualifications, the limitations under this class make it clear that specified development, including the "extension or alteration of an agricultural building", is not permitted development where it relates to a building used for the accommodation of livestock within 400m of the curtilage of a protected building, or where the external appearance of the premises would be materially affected. Whether the alterations here are de minimis, and thus not development requiring permission, is clearly a matter of fact and degree. But if they are such as to require permission, then as the rearing of goslings falls within the definition of livestock in the 1990 Act and the need for the accommodation does not appear to arise from the special circumstances at D2 of the Order, in my view the alterations will not be permitted development.

A caravan used for primary residential accommodation will require permission but if it is used for occasional overnight stays in connection with the running of the farm this would be ancillary to agriculture. Part 5 of the Order also permits seasonal worker's caravans in certain circumstances.

My authority has a prior approval application for a telecommunications monopole where, although the mast itself is 15m high, the antennas and supporting head frame take its total height to well over 15m. The applicants have been advised that permission is required. However, they argue that the antennas and head frame should not be taken into account when calculating height.  Can you throw any light on this?

Telecommunications apparatus is permitted by Class A of Part 24, Schedule 2 of the GPDO 1995 subject to a number of conditions. A.1(a) of Part 24 states that development is not permitted if, in the case of the installation of apparatus (other than on a building or other structure) the apparatus, excluding any antenna would exceed 15m above ground level. The Order does not define ‘antenna’ or ‘structure’. However, ‘apparatus’ is defined by reference to the Telecommunications Act 1984, which states that it includes any apparatus constructed or adapted for use in transmitting or receiving signals of various types. Various appeals have considered whether headgear should be classified as apparatus or antenna, including a recent case from the West Midlands. Here an inspector averred that an antenna is "a passive electrical component that transmits and receives radio waves". Since upright structures supporting the antennas were not electrical components and electrical signals to and from the antennas were conveyed by separate cables, they constituted apparatus. As this exceeded 15m, it did not comply with the Order. A similar approach was taken in a case from Leeds in 2000 (DCS No. 36524477) and from Stockport in 2001 (DCS No. 38328818).

Construction of a sewage treatment works is about to start in a small seaside town. Temporary buildings are proposed to be erected on the site in accordance with Class A, Part 4, Schedule 2of the GPDO and would include a works office. In addition, accommodation is required to house 30-50 workers on the site for a period up to 12 months. Would this also be permitted development under Class A?

This class provides that certain developments are permitted development that would otherwise be operational development, but which are only required for a temporary period in connection with the construction of another development with planning permission. This would usually include builder's site huts and construction plant. Although construction workers’ residential accommodation is not mentioned, I do not think that those who drafted the Order intended that it be permitted under this class. This view is supported by decisions from Essex in 1999 and Ceredigion in 2001, where inspectors opined that the reference to a "building" in the heading to Class A did not encompass dwellings. Nonetheless, last year’s review of permitted development rights commissioned by the ODPM suggests that Class A has been used to justify construction camps for pipeline projects, although it is not clear whether these included living facilities.

A farmer proposes to change from cereal production to livestock rearing and wishes to erect within 400m of some dwellings a barn for sheltering cattle in the winter. Would this require a prior notification application or one for planning permission? Section D.3 to Part 6 of the GPDO refers to a livestock building being permitted development if it provides shelter from 'extreme' weather conditions. Are there any standards that need to be complied with in relation to such shelters?

Paragraph D.1 to Part 6 of the Order, which explains how it should be interpreted, states that a non-agricultural dwelling is a "protected building" for the purposes of determining under Classes A and B whether a proposed livestock building requires planning permission or is permitted development that requires only a prior notification application. It is clear here that as the proposed barn lies within 400m of a protected building, it requires an express grant of permission. Paragraph D.3 provides that this general requirement may be overridden in certain circumstances, including where the need to accommodate the livestock arises from quarantine or emergency situations, or to provide temporary shelter against extreme weather conditions or for sick animals normally kept out of doors. While "extreme" is not defined, in a case from north Wales in 1999 (DCS No: 53160956) an inspector opined that this must be taken to refer to something fairly exceptional and not just to normal winter weather. It could not therefore include the sheltering of animals for a significant period of time during the winter as a matter of course and for reasons of good farming practice, he held.

Response

The Order does not say this. Paragraph A.1(h) to Part 6 prevents a building being erected as permitted development if it is "to be used for the purpose of accommodating livestock". Nowhere is this ban lifted. Additional controls are imposed by the conditions that follow at paragraph A.2(1). The spirit of the legislation is obvious: condition A.2(1)a is meant to prevent a farmer from erecting an ostensibly "non-livestock" building and then using it for livestock. The exception at paragraph D.3 is intended to allow a building already erected for non-livestock purposes to be used for livestock in emergencies. It is clear that the Order does not grant permission for a building to be erected for the purpose of accommodating livestock, even in emergency such as extreme weather, if within 400m of a protected building.

Class A, Part 24, Schedule 2 of the Town and Country Planning (General Permitted Development) Order 1995 grants permission generally for masts below a height of 15m, subject to certain restrictions. Condition A.1 (i) excludes masts within a conservation area, unless carried out in an emergency. However, condition A.2 (4) appears to permit such developments, subject to certain provisos including the need to comply with the prior approval procedure. Can you clarify this apparent anomaly?

Part 24 has been subject to numerous amendments culminating in its complete replacement by a new part, inserted by the Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2001, as later amended by the Communications Act 2003 (Consequential Amendments) Order 2003. Nevertheless, it remains very complicated and last year’s review of permitted development rights acknowledged that it is one of the most difficult parts of the Order to interpret. While the conditions you mention appear inconsistent, my understanding is that their combined effect is to ensure that any telecommunications development carried out within a conservation area is subject to planning control, unless it falls within the categories of minor development specified under Class A.2 (4) or is carried out in an emergency.

Under the Caravan Sites and Control of Development Act 1960 a site licence, and therefore planning permission, is not required to use a holding of 5 acres or more as a caravan site for not more than 28 days per year and for not more than 3 caravans at any one time.  But must a caravan be physically occupied for more than 28 days per year to require permission, or is the mere fact that it is stationed for the purpose of human habitation sufficient to count against the maximum number of days allowed?  Put another way: can a caravan be sited under this provision for 365 days a year provided it is only occupied for 28 days or fewer?

Class A of Part 5 of the General Permitted Development Order grants permission for the use of land as a "caravan site" where this is already exempted from the need for a caravan site licence. The 1960 Act defines a caravan site as meaning "land on which a caravan is stationed for the purposes of human habitation and land which is used in conjunction with land on which a caravan is so stationed" and this has been upheld by the courts. The issue is therefore not whether the caravans are occupied for more than 28 days, but whether the land is used for the stationing of caravans for such a purpose. Neither the Act nor the Order permits this on an all-year-round basis.

My authority has served an enforcement notice requiring the removal of a telecommunications mast that was installed without permission. But while the operator intends to comply with the notice, it claims that a temporary mast can be erected under the emergency provisions in Class A, Part 24, Schedule 2 the General Permitted Development Order 1995, as it is needed to replace unserviceable telecommunications apparatus. This seems unreasonable, particularly as the mast should not there in the first place. What are your views?

Class A (b) enables land to be used in an emergency for no more than six months to station and operate moveable telecommunications apparatus required for the replacement of unserviceable "telecommunications apparatus". The latter is defined at Article 9 of the Order as including any structure by which any telecommunication apparatus is or may be installed, supported, carried or suspended. However, Article 3(5) of the Order provides that permitted development rights do not apply where they relate to an existing use or building that is unlawful. As a "building" is defined under Article 1 as including any structure or erection, this would include any unlawful telecommunications apparatus. I do not think therefore that the operator is entitled to act in the way you describe.

Condition A.2(2)(v) of Class A, Part 6, Schedule 2 of the General Permitted Development Order provides that where prior approval has been granted for an agricultural development it shall, "except to the extent that the local planning authority otherwise agree in writing", be carried out in accordance with the details approved.  There is no indication of how this phrase should be interpreted. However, commonsense suggests that any development of the same or lesser amount than that considered under the prior approval procedures could be dealt with as an amendment, but that development of a greater nature could not. Is my approach correct?

I can find no specific guidance or precedent. However, your suggested approach seems reasonable. This clause is clearly designed to allow some flexibility over small matters of detail. Analogous guidance on minor amendments to permissions set out in circular 31/92 may be relevant. This advises that the local planning authority must decide whether a proposed variation is "significant enough" to require a fresh application. Such decisions are therefore at the discretion of the authority and will be a matter of fact and degree. But I agree that it would not be right to approve under this condition revised details for a development that was materially bigger than that originally proposed.

A certificate of lawfulness was issued for the use of my client’s site for ‘the storage and repair of plant and equipment used in connection with plant hire and agricultural contracting’. Subsequently, permission was granted on appeal to redevelop three buildings subject to a number of pre-conditions, none of which has been satisfied. My client does not now want to implement the permission and trigger various other conditions restrictive conditions. However, he does wish to demolish the largest building to allow more open storage. A literal interpretation of the Part 31 of the General Permitted Development Order suggests that he could do this without prior notice to the local authority as the land is subject to a valid planning permission and therefore "excluded development". What is your view? Much of the work is carried out in the open as well as inside the building. Using the normal tests and having regard to the appeal decision from Canterbury in 1983 quoted in section 4.325 of Development Control Practice, as the use was not wholly dependent on the building I consider that there is no question of abandonment? Do you agree?

I can find no precedent or guidance in Circular 10/95 on the planning controls over demolition that is helpful. The demolition of the building constitutes a material operation within the meaning of Section 56 of the Town and Country Planning Act 1990 for the purposes of commencing development. However, as the pre-conditions have not been met and the operation is unlawful, in accordance with Leisure Great Britain plc v Isle of Wight Council (1999) the permission has not been implemented. Part 31 of the Order provides where land is subject to a permission for its redevelopment the demolition of buildings is excluded from the need for prior notification. As the definition of excluded development at A.3(a) of this part does not expressly require that the demolition of the building be an integral stage in the implementation of that permission, I agree that a literal reading suggests that prior notification is unnecessary in this instance. In addition, since the open air storage is not apparently dependent on the main building on site, and that other buildings would remain, the existing lawful use would not be abandoned.

The owner of a hotel with a hard-surfaced front garden has removed the wall alongside an unclassified road to provide off-street parking. The adjoining footpath has been lowered to create an access. The demolition of the wall is clearly permitted development by virtue of Class B, Part 31 of Schedule 2 of the General Permitted Development Order. However, is the access also permitted development?

Class B, Part 2, Schedule 2 grants permission for a means of access to an unclassified road where this is required in connection any development permitted by the order other than a means of enclosure. As you say, the demolition of the front wall is permitted development, although it may be argued that the access is not "required in connection" with such works. Rather, it is the other way round. A decision from Gloucestershire in 2002 concerning enforcement action in broadly comparable circumstances may be of interest (DCS No: 43951006). In that case, an inspector held that the removal of the wall did not involve development in accordance with section 55(2)(g) of the Town and Country Planning Act 1990 and Appendix A of Circular 10/95. Class B of Part 31 was therefore irrelevant. He further reasoned that the access that had been ‘formed’ as a result of the wall’s removal did not involve operational development. He therefore quashed the notice. Similar considerations could apply in your case, especially as the lowering of the kerb is not in itself development.

Following the recent introduction of a standard time limit of three years for planning permissions and listed building consents, are there any plans to update Parts 6 and 24 of the General Permitted Development Order 1995 in respect of prior notification for agricultural and telecommunications development? If not, it would mean that a mast or agricultural building allowed under the Order would benefit from a five-year consent, whereas an identical development that has to go through the more stringent process of a full planning application is only likely to be given a three-year consent. Surely this would be an anomaly?

Sec. 51 of the Planning and Compulsory Purchase Act 2004 amends Sec. 91 of the Town and Country Planning Act 1990 by reducing the duration of permissions to three years. However, the existing time limits for permissions granted by any development Order remain in force by virtue of Sec. 91(4)(a), which is unaltered. These can only be brought into line with the new provisions by changes to the Order itself. Although the Government has indicated that many of the reforms brought about by the 2004 Act will require changes in secondary legislation, there is no mention in Circular 08/2005 on the recent changes to the development control system of any need to amend the time limits under Parts 6 and 24 of the Order. It could be that this is tied up with the ODPM's wider consideration of the Order as part of its householder development consents review. In the interim, the anomalous situation you have highlighted will continue.

It is becoming quite common for people to acquire a field for recreational purposes such as riding off-road motorbikes at weekends. However informal, I would regard this activity as being "practising for motor racing". In that case, the 14-day limit under the General Permitted Development Order 1995 would apply. But I note that ODPM guidance and case law indicate that such activities do not constitute "practice" and therefore the 28-day limit applies. Do you agree?

Class B, Part 4, Schedule 2 of the Order restricts "motor car and motorcycle racing, including trials of speed, and practising for these activities" to 14 days in any calendar year except in sites of special scientific interest. This has been interpreted as covering competitive motorsports events, including race practice sessions. However, other temporary uses of land for non-competitive motoring activity, including informal practising or training, are subject to the 28-day rule. A clear distinction is therefore made between these activities, which have materially different effects. The use of a field that is otherwise used only for agriculture by people on an individual basis for riding off-road bikes should not be regarded as practising for racing. This opinion is consistent with Government advice and recent appeal decisions, including one from 2003 involving a motocross circuit in Leicestershire (DCS No: 31835572).

My authority is considering a lawful development certificate (LDC) for the demolition of one of a pair of attached garages straddling the boundary between two houses. The garages stand apart from the dwellings and are covered by a pitched roof. The demolition would leave the remaining garage with a mono-pitched roof. The applicant has not explained the reason for the proposal and argues that it is permitted under Part 31 of the General Permitted Development Order 1995. However, it appears that the authority's prior approval would be needed. Can my authority grant an LDC?

As explained in Annex 8 to Circular 10/97, Sec. 193 (5) of the Town and Country Planning Act 1990 provides that an LDC shall not affect any matter constituting a failure to comply with any condition or limitation subject to which permission has been granted, unless that matter is described in the certificate. While the proposal appears to be permitted development and your authority may issue an LDC confirming that its permission is not required for demolition, this would not override the requirement for the householder to comply with conditions set out at paragraph A2 of Part 31. These include the need to apply for "a determination as to whether the prior approval of the authority will be required to the method of demolition and any proposed restoration of the site", rather than prior approval as such.

Following an application under paragraph A.2(1)(a) of Class A, Part 7, Schedule 2 of the General Permitted Development Order 1995, an authority has determined that full permission is required for a public information point comprising a small open-fronted timber shelter in a forest. The authority argues that it is not permitted development because it is for interpretation purposes. But since forestry is now not just to do with trees but inextricably linked to recreation, nature conservation and so forth, I feel that the building is reasonably required for the management of the forest. What is your view?

Class A grants permission for certain types of development on land used for forestry where they are "reasonably necessary" for those purposes, subject to various conditions. Where a building is proposed, these include a requirement that the developer shall apply for a determination as to whether the authority's prior approval is required for its siting, design and external appearance. Unfortunately, the definition of forestry for planning purposes has not kept pace with its modern-day role, which now embraces a number of activities. Instead, forestry continues to be defined narrowly as meaning only "the growing of a utilisable crop of timber". While this is arguably unreasonable, a strict interpretation of planning legislation and related guidance suggests that the local authority may be correct.

Does the 56-day time limit for notifying applicants of whether an authority's prior approval is required for a proposed telecoms mast that would be permitted development start on the day of receipt by the authority of the application or on the following day? In other words, does the day of receipt, which in the case of online submissions could be at any time until midnight, count as day zero or day one?

This issue was considered in some detail in a decision from Yorkshire in 2003 (DCS No: 56289748). The local authority argued that it is a general principle of law that the date on which an event occurs must be excluded from the calculation of the relevant period. The appellant expressed the contrary view, referring to the cases of Trow v Ind Coope (West Midlands Ltd) and Another [1967] and Zoan v Rouamba [2002]. The inspector opined that although these were not planning cases, they clearly pointed to a distinction in legislative procedures requiring an act to be done within a number of days from, following or after a specified date. In the first instance, the courts have consistently held that the specified date is excluded. In the second, the legislature has shown a clear intention that the specified date should be included in the relevant period. In the case of applications under the prior notification procedures in Part 24, Schedule 2 of the General Permitted Development Order 1995, the inspector did not consider that there was any ambiguity in the wording of condition A.3(7) as to when the 56-day period begins. It begins on the date that the application is received and that counts as day one. Procedural guidance is set out at Annex 1 to PPG8 and the ODPM's code of best practice on mobile phone network development.

My local rugby club sometimes uses a field that is detached from its main ground as an overflow pitch under the 28-day rule because the owner fears that a planning application would prejudice the field’s future development potential. It is used only for sheep grazing out of season. Putting up and taking down goalposts causes a lot of work for our voluntary groundsman, but a neighbour complains if they are left up. Local authority advice on whether the posts would be permitted development is ambivalent. What is your view?.

The starting point is to consider whether the posts are development within the meaning of Sec. 55 of the Town and Country Planning Act 1990 and, if so, whether they are permitted by the General Permitted Development Order 1995. The courts have held that the primary factors distinguishing a building operation from a chattel are size, permanence and physical attachment to the ground. As the posts are evidently capable of being dismantled and re-erected by a single person and are not permanent, I do not think they are development. On the occasions that the field is used as a rugby pitch under the 28-day rule, the posts are authorised by Class A, Part 4, Schedule 2 of the Order, which allows associated moveable structures. In my view, however, the posts are too large to be de minimis. If they are left up at other times, that would require express permission.

Class A, Part 13, Schedule 2 of the GPDO permits the carrying out by a local highway authority of works required for or incidental to the maintenance or improvement of the highway on land outside but adjoining the boundary of an existing highway. Does this allow the acquisition of land adjoining the existing highway and laying of a cycle track or even widening of an existing carriageway used by vehicular traffic?

I cannot find any instance where this Part, which was substituted and expanded by Article 35 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 to include works within the boundaries of a road that would involve development by virtue of Sec. 55(2)(b) of the 1990 Act, has been discussed in any detail. But while its provisions cannot have any bearing on land acquisition, there is no question that they would permit the works you describe. These would clearly be considered improvements of the highway. The effect of Part 13 of the Order is that road enhancement schemes rarely trouble the planning system.

Response

I had always assumed that such permitted development rights apply only to improvement works that themselves adjoin an existing highway and have only ever seen this interpretation applied. If the works are wholly or partially "offline", this would require express permission. This is because they are separate from the highway, even if they are considered an improvement to it. However, the wording in Part 13 does seem to permit works on any land adjoining an existing highway. This would allow a cycle track, new carriageway or other highway improvement to be built at a considerable distance from an existing highway, provided that it was on land that adjoined the existing highway. Is this right?

I do not share the respondent’s concern, which seems to be based on an unduly semantic interpretation of Part 13. Class A(b) permits works "on land outside but adjoining the boundary of an existing highway or works required for or incidental to the maintenance or improvement of the highway". The term "adjoining" is not defined in the Order. The courts have held that in these circumstances, such terms should be given their ordinary meaning. The Concise Oxford English Dictionary defines "adjoin"" as meaning "next to and joined with". So if new highway works are carried out some distance from the highway, the precise area of land on which they are sited would not be contiguous with the boundary of the highway. The review of permitted development rights carried out by consultants for the Government in 2003 erroneously referred to the phrase used in Part 13 as "adjacent to the highway", which has a quite different meaning. It claimed that this has frequently led to interpretation difficulties and noted that it appears to be common practice among local planning and highway authorities to take a distance of 2m to 3m from the back edge of the highway in interpreting this Part. The consultants considered that while there may be some cases where this limit would not be appropriate or too restricting, it seemed useful to have some clarity by setting a distance limit. They recommended that this should be 5m from the edge of the highway. They advised that interpretation should be provided to clarify that improvement works, such as a footbridge above and at right angles to the highway where any part of it lies within 3m of the highway boundaries, would fall within Part 13.

Under a safer communities initiative, my authority wishes to install alley gates in various parts of the borough. When assessed against Class A, Part 2, Schedule 2 of the General Permitted Development Order 1995, the gates would require express permission because they would be 2.2m high. However, it has been suggested that they may be exempt from planning control under Class A of Part 12, which sets out rights for development by local authorities. Is this correct?

Part 12 grants permission for local authorities to erect any small ancillary building, works or equipment on land belonging to them for the purpose of any function exercised by them on that land. This right is subject to the qualification that such ancillary buildings, works or equipment do not exceed 4m in height or 200m3 in capacity. Although gates are not listed in the examples given at Class A(b) of Part 12, which includes works such as lamp standards and control barriers, in my view they would be considered "similar structures or works" required in connection with the operation of the public service administered by your authority. They would not require express permission.

In response to a prior notification application for a new agricultural building, a local authority has decided that permission is required. It argues that in accordance with paragraph D.2 of Part 6, Schedule 2 of the General Permitted Development Order 1995, an existing agricultural building should be included in the 465m2 permitted development allowance. This is because it is "being provided" or has "been provided" within the last two years. My clients claim that the building was substantially completed and used more than two years ago, with only a 2.5m high gable wall still awaiting construction. What does "provided" mean in the context of the Order?.

The term is not defined in the Order and I cannot find a case where its meaning has been debated. Neither is it discussed in the 2003 review of permitted development rights. However, the test for whether a building has been "substantially completed", for the purposes of the time limits for taking enforcement action set out at Sec. 171B of the 1990 Act is relevant. In Sage v Secretary of State for the Environment, Transport and the Regions and Maidstone Borough Council [2003], the House of Lords ruled that works carried out to complete a building should not be discounted simply because they do not amount to development. In my view, the failure to erect the gable wall means that the building has not yet been substantially completed. The planning authority appears to be correct.

Class A, Part 31, Schedule 2 of the General Permitted Development Order 1995 grants permission for the demolition of dwellinghouses and buildings adjoining them subject to one exception and certain conditions. These include the need to apply to the planning authority for a determination as to whether prior approval is required for the method of demolition and any proposed restoration of the site. Would these considerations enable an authority to refuse such an application on the grounds of loss of the dwelling through failure to restore the site to residential use, visual impact, the physical effect on adjacent buildings, such as where it forms part of a terrace, or other health and safety factors? Is there any relevant Government guidance on this matter and have these issues been debated before?

Guidance on Part 31 is given in Circular 10/95, which reissues the Town and Country Planning (Demolition - Descriptions of Development) Direction 1995 in revised form. The circular explains that the general requirement for a developer to seek a determination of whether the local authority's prior approval will be required gives it the means of regulating the "details of demolition" to "minimise its impact on local amenity". The circular adds that prior approval will only be appropriate where authorities judge that a specific proposal is likely to have a significant impact on its surroundings. The notification procedure does not allow an authority to resist the principle of the loss of the dwelling. It may only control the method of its demolition and the subsequent means of restoration. Health and safety considerations will be relevant when considering whether demolition rights are available in accordance with the provisions of paragraphs A1 and A2(a). Otherwise, the only way for an authority to resist the loss of an unlisted dwelling outside a conservation area is to remove these rights through an Article 4 direction. Chapter 35 of the review of permitted development rights published in September 2003 includes a useful discussion of the operation of Part 31.

Would the demolition of a building of more than 50m3 that is not a dwellinghouse or attached to a dwellinghouse be allowed under Part 31 of the General Permitted Development Order 1995? Buildings over this size are not excluded from the definition of development in the Town and Country Planning (Demolition - Description of Buildings) Direction 1995. However, Circular 10/95 does not seem to make any reference to them in relation to permitted development..

All buildings that are not dwellinghouses or attached to dwellinghouses are excluded from the definition of development in the 1995 direction, regardless of whether they have a volume in excess of 50m3. The provisions of Part 31 do not therefore apply. Circular 10/95 explains that planning control will apply chiefly to demolition of dwellinghouses and buildings adjoining them outside conservation areas and to gates, fences and walls within conservation areas.

A vacant site benefits from a lawful development certificate for storage and distribution, a use that falls within Class B8 of the Use Classes Order. The site includes a range of buildings, some of which are semi-detached. Condition B.1 to Class B, Part 3, Schedule 2 of the General Permitted Development Order 1995 restricts the permitted change of use from Class B8 to Class B1 to no more than 235m2 of floor space in the building. Is this a collective limit for all the buildings? Or would it allow any building measuring less than 235m2 to be changed to Class B1 use without express permission? Also, could the buildings be extended in accordance with Class A, Part 8, Schedule 2 of the Order even though they are not currently used for industrial or warehousing purposes?

While the buildings need not be occupied to enjoy permitted development rights, their use for business purposes must not have been abandoned, bearing in mind the tests that the courts have established for determining whether this has occurred. These include the buildings' physical condition and the owner's intentions. I interpret the provisions of condition B.1 to place a floor space limit on each and every building, rather than imposing an overall limit on changes of use within the same planning unit.

A parish council wishes to provide a multi-use games area on a field within the green belt next to a community centre that is within the urban development boundary. My council has previously accepted that it could be provided using rights under Class A(a), Part 12, Schedule 2 of the General Permitted Development Order 1995 as long as no part exceeds 4m in height. However, we are confused over the use of the words "land belonging to or maintained by them" in this class. Would land "belong" to the parish council if it is leased from a farmer or must it be owned outright? The reference to land "maintained" by an authority implies that a lesser interest may be sufficient. Do you agree and would such rights lapse once any maintenance ceases?

Part 12 grants permission to local authorities to construct any small ancillary building, works or equipment on land belonging to them for the purpose of any function exercised by them on that land. This right is subject to certain restrictions on size. The interpretation of Part 12 explains that a local authority includes a parish council. The term "function" includes powers and duties whereby a local authority may hold land for public open space purposes, including its recreational use. No guidance is given on how the phrase you mention should be interpreted and I can find no relevant case. However, provided there is documentary evidence that the council has some form of legal control over the land, this should be sufficient to trigger rights under this class. The control could include that granted in a lease or licence. But once any rights to maintain the land cease, it seems reasonable to infer that the authority cannot rely on the provisions of Class A.

I am dealing with a building in Wales with a large car-parking area within its curtilage. The whole premises used to have an established user for car sales, which we know is a sui generis use. The building is now used for A1 shops, the car park being for customers. I understand that such a change of use was permitted development, but has the law changed? PL

The Town and Country Planning (General Permitted Development) Order 1995 at Schedule 2 Part 3 Class A used to give a permitted development right for a building for the sale or display of vehicles use to become an A1 use. In the light of several instances where this right was exploited to change car showrooms to large retail stores, the GPDO was amended in 2005 to remove it. Thus, were it in England, the change of use you describe could only have enjoyed a permitted development right  if it took place before 21/4/2005. If it occurred after that date it would need to be determined whether a material change of use had occurred from the previous sui generis vehicle sales use to a retail use (in practice very likely to be the case). However, these legislative changes were not paralleled in Wales and so the PD right given by the 1995 Order still applies in the case that you are dealing with.

A local authority is intending to extend a cemetery onto land which is allocated for such a use within the local plan. However, it is also proposed to undertake some operational development, namely the formation of internal road and parking/passing bays. The planning authority considers that these elements are not "works" under Part 12 Class A, A(a) of the General Permitted Development Order 1995 and are therefore not permitted development. Consequently a Design and Access Statement would be required.  I believe a commonsense dictionary definition of the word "works" means that the construction of the internal works do qualify under part 12. It follows that a Design and Access Statement cannot be demanded as the works would not themselves trigger a planning application. What is your opinion? RN.

Part 12 Class A allows local authorities to "erect or construct any small ancillary building, works or equipment on land belonging to or maintained by them required for the purposes of any function exercised by them." Thus, once planning permission is obtained for the change of use of the land to a cemetery and this is implemented, it may then use its permitted development rights.  I cannot find a case where ‘works’ has been defined in the context of Part 12, but I agree with you that any reasonable interpretation of the word would include internal roadways and parking areas. GH.

My authority, a county council, take the view that new school development in the form of extensions can be classed as Part 12 permitted development as Development by Local Authorities. This allows "the erection of any small ancillary building/equipment on land belonging to them for the purposes of any function exercised by them on this land…."  This Part does not make any cumulative restriction on the amount of small extensions that might be built.  However, Part 32 Schools, Colleges Universities and Hospitals, does have a cumulative restriction beyond which planning permission is required. The view is taken that extensions at schools which are small and therefore permitted development under Part 12 even when they would clearly beyond the cumulative amount allowed by part 31. Can you clarify the correct approach? FH.

There is no doubt that extensions or additions to school facilities can be permitted development under Part 12 or Part 32, and it is open to local education authorities to use whatever tolerance offers them the most favourable outcome.  In the case of Part 12 rights there is a volumetric limitation to 200m3 and Part 32 offers a once-only right to erect a school extension up to 250m3. As you say, it may be possible to exploit the Part 12 regime to build a series of small educational buildings more or less ad infinitum, although in practical terms a typical single classroom add-on is likely to require a building of a little over 200m3.  There are two factors which could put a curb on the unlimited use of Part 12. The first of these is where successive school buildings or structures are alleged to be a planned continuous operation, rather a series of one-off operations required to meet needs as they arise. The other arises from an interpretation of the term ‘small ancillary building’. It may be cogently argued that a structure such as a classroom could hardly be ancillary when it forms a primary or essential part of the accommodation that is essential to the operation of any educational establishment. I believe that it was the intention of legislators that ancillary buildings to be allowed by Part 12 should only extend to ‘support’ structures and works which in the case of schools could include bicycle sheds, playground structures, parking areas and so on. However, as the Order does not define ‘ancillary’, this remains a matter to be clarified by the courts. GH.

I am determining a Lawful Development Certificate application for demolishing an extension to a single dwellinghouse. Having checked the Town and Country Planning (Demolition – Description of Buildings) Direction 1995 in Circular 10/95 and part 31 of schedule 2 of the General Permitted Development Order 1995 (GPDO) I can find nothing to say that partial demolition of a dwelling does not need a planning application. Indeed I have found an appeal decision which confirms that partial demolition of a dwelling does need it (Journal of Planning and Environmental Law 1995 p 370). This would, however, seem a little onerous and would create a lot of work for planning authorities. Can you advise? GB

I have recently undertaken a similar exercise as my authority has received a prior notification of the demolition of a house extension, and have come to a similar view. Prior notification would seem to be the wrong procedure as the definition of "building" in article 1 of the GPDO does not include part of a building in class A of part 31 of the GPDO.  The Practical Point at p777 in the 1994 volume of the Journal of Planning and Environmental Law also endorses your view. It might be possible to argue that demolishing a house extension was an alteration permitted under class A of part 1 of schedule 2 of the GPDO, but I am not too sure if this would be a correct interpretation of the legislation. Anyway, this would only apply to a house or bungalow, not a flat or maisonette. I am sure there are many instances when houses are part-demolished and planning applications are not made. Indeed, like you, I would agree if such applications were always made, it would burden councils with applications for what must be considered trivial works, unlikely to affect neighbours significantly. It would therefore seem that this legislation urgently needs clarifying and/or revising. I would be interested to know if any other readers have looked at these provisions and can throw any further light on this issue. JH.

Is the erection of a 2.4m high fence by a statutory undertaker allowed under class E(g), part 17, schedule 2 of the General Permitted Development Order 1995 or would it fall to be assessed against the provisions of part 2 of the Order? RC.

Classes E(a) to (f) grant permission for a range of developments to statutory undertakers supplying water or hydraulic power, subject to various qualifications. Class E(g) grants permission for "any other development in, over or under operational land other than the provision of a building but including the extension or alteration of a building". This is also subject to certain conditions that do not apply in your case. Although it is unclear what is meant by the expression "other development", it seems reasonable to assume that it would include a means of enclosure such as a fence of the height you describe. PM.

A farmer hosts corporate hospitality events involving driving off-road vehicles. The farm includes a site of special scientific interest (SSSI) through which tracks have been constructed to create a driving route. The planning authority says it is for Natural England to decide what temporary Activities are permissible in an SSSI. Natural England argues that off-road driving does not fall within the definition of motor racing or motor sport because it does not involve high speeds or competition. It asserts that the use is allowed under the General Permitted Development Order (GPDO) 1995. My clients, however, disagree and oppose the Activity. Is there anywhere that "motor sport" is defined?

Class B, part 4, schedule 2 of the GPDO permits the temporary use of land for any purpose, subject to certain restrictions and exclusions. "Motor sports" are not permitted in an SSSI. No definition of the term is given in the Order or elsewhere in planning legislation or guidance. Neither can I find discussion on this point in any judgment or appeal decision. The courts have held that in such circumstances it is necessary to rely on the ordinary meaning of the words. The Concise Oxford Dictionary defines a sport as including a game or a pastime. It does not refer to the need for any competitive element, although this will be present in most sports. It is therefore arguable whether off-road driving is a motor sport. Permission will be needed for the tracks if it can be shown that they are not reasonably necessary for the purposes of agriculture on the farm.

Class B, part 4, schedule 2 of the General Permitted Development Order 1995 grants permission for certain temporary uses for up to 28 days a year. However, this is limited to 14 days where the Activity involves motorised racing. Is it possible to argue that if a motor sport is a non-competitive skill-based Activity it benefits from the 28-day rule? AF.

Paragraph B.2(b) of the Order provides that "motor car and motorcycle racing including trials of speed and practising for these activities" are subject to the 14-day rule. Where it is clear that the activity does not involve racing against other competitors or against the clock, or practising for these events, the 28-day rule will apply. A decision from Nottinghamshire in 2000 considered a claim that the use of land for motor racing had not breached the 14-day limit as only associated activities and not racing itself were carried out (DCS Number 37340966). The claim was rejected because it was clear that the activity was directly associated with motor racing and necessary for it to take place. So in such cases you should examine whether the claimed "non-competitive" activity is ancillary to a primary use of the land for motor racing. However, in a decision from Leicestershire in 2003 (DCS Number 31835572), an inspector held that practising not associated with a specific race meeting would fall within the 28-day limit. PM.

Are construction site hoardings covered by class A of part 4 of schedule 2 of the General Permitted Development Order 1995? It would seem logical they should be permitted by this class, but they do not fit the definition "buildings, moveable structures, works, plant or machinery". Can you clarify? RP.

I would consider these to be "works". It surely would not be the government’s intention that site hoardings require planning permission, when items like site huts do not. Furthermore, only in very exceptional circumstances would planning authorities wish to be able to control the construction of site hoardings, so it would seem logical that they should be permitted development. JH.

With the General Permitted Development (Amendment) (No.2) (England) Order 2008 amending the General Permitted Development Order 1995 (the GPDO) becoming effective on 1st October, I am seeking advise on the legality of conditions removing permitted development rights specifically referring to the 1995 GPDO and not containing the wording advised in Circular 11/95 "or any order revoking and re--enacting that Order with or without modification". My authority has sometimes used such conditions without this wording included. I presume that where this condition has been used, from the 1st October these properties will gain permitted development rights under the 2008 amendment, I am, however, wary that the wording of ‘amendment’ in the 2008 order raises doubts on my presumption. What is your interpretation? JE.

Government circulars are only advice and not law. Whilst it is prudent to put a "notwithstanding the provisions…" wording in any condition taking away permitted development or Use Class Order rights, I can see no legal requirement for this. Anyway, the Amendment Order only changes and does not revoke or replace the 1995 GPDO, so such conditions would still be effective. They would, however, have to be carefully interpreted within the context of the changes in the legislation. For example, a condition might take away rights to build extensions, but it would not preclude the construction of a flue under the new provisions, as a flue cannot reasonably considered to be an extension. JH

In the new General Permitted Development Amendment Order, Part 1 Class A the "enlargement, improvement or other alteration of a dwellinghouse" it states at A.3 that development is permitted subject to the proviso "the materials used in any exterior work (other than materials used in the construction of a conservatory) shall be of a similar appearance to those used in the construction of the exterior of the existing dwellinghouse."  This would seem to exclude from permitted development improvements or alterations such as cladding external walls and replacing windows which would not be of a similar appearance.  I would be grateful for your view. IH.

I agree. Clearly cladding a dwelling in an "alien" material would now require planning permission. Also, although it might not be the government’s intention, planning authorities could now argue that inserting uPVC windows in a house which previously had timber ones would require permission. It will be interesting to see how "test case" appeal decisions on the windows issue are determined. JH.

There appears to be a loophole in the new General Permitted Development Order amendment. Class A does not limit the length of extensions to the front of dwellings that do not face highways. The owner of a two-storey house surrounded by fields and not bordering a highway could erect two-storey extensions to the front covering up to 50% of the curtilage without the need for permission subject to certain height restrictions.

The amendment order also raises issues regarding what constitutes a principal or rear elevation when the property sits side onto the highway or the rear elevation faces a highway. In respect of the latter does the rear elevation become the principal elevation and the front elevation facing away from the highway the rear elevation? If so this could become very confusing for the public not to mention planning officers. Any clarification would be appreciated. MP.

I agree on your first point – there is a major loophole here which, if the provisions are not amended could result in significant harm to the openness of green belts and other rural areas.

Regarding your second query, I realise the legislation will be very unclear for some dwellings. The intention of the amendment is rear extensions on conventional dwellings which happen to have a highway to the rear will often no longer require permission. There will, however, be examples of houses where these principles will be very difficult to interpret such as on a "Radburn" layout. In such instances councils will have to take a view on the circumstances of the case, but, yes, it will be confusing for the public and planning officers. JH. 

A council receives an application for a certificate of lawfulness prior to 1st October 2008 and determines the development within the curtilage of a dwelling is lawful as it is permitted under the former General Permitted Development Order, but the development is not implemented until after 1st October when it no longer fulfils the appropriate criteria. Can the council take enforcement action, bearing in mind a valid lawfulness certificate exists? RE.

A certificate of lawfulness application should be determined on the basis of whether the works are permitted on the date the application is submitted. If there is a subsequent change in circumstances, even whilst the application is being processed, that should not affect the decision. In the circumstances of your example, there is an anomaly in that a certificate will exist for the development, but it will not be permitted development as there has been a "change of circumstances" under the provisions of section 192(4) of the Town and Country Planning Act 1990, as amended. This is an unfortunate consequence of legislation changing and there is scope for problems as your scenario demonstrates. In such circumstances the council might choose not to take enforcement action, of course. JH.

The new General Permitted Development Order Amendment requires first-floor side windows to be obscure glazed.  If a development is built without complying with this requirement, would the appropriate means of enforcement be a breach of condition notice or an enforcement notice seeking to "under enforce"? DR.

An enforcement notice would be necessary. Applying the principles of Garland v Ministry of Housing and Local Government 1969, in theory one could require the demolition of the extension if ordinary windows were used, but in reality "under enforcement" would be the reasonable option. JH

Response

As an enforcement officer I disagree with your reply to DR. I suggest a breach of condition notice quoting a breach of permitted development A3 'B' (i) would be more appropriate than an enforcement notice. RC.

Further Response

A breach of condition notice can sometimes achieve quicker compliance than an enforcement notice. Under section 87AA of the Town and Country Planning Act 1990, as amended, however, a breach of condition can only be used on a conventional planning permission, not one granted by the General Permitted Development Order.  JH

Further response

On 17 and 31 October, the issue whether a breach of condition notice could be served instead of an enforcement notice when a side-facing window was not obscure glazed as required by the General Permitted Development Order (GPDO) Amendment.

In DC Forum of 31 October there is a typo in that you refer to s87A, Town and Country Planning Act, 1990 whereas Breach of Condition Notices (BCNs) are created by s187A. However, JH also states that BCNs can only be used on a conventional planning permission, not one granted by the GPDO. Sub-section 1 of s187A applies BCNs to planning permission for carrying out any development of land that has been granted subject to conditions. Sub-section 13 states that "conditions" includes limitations. I am unaware of any qualification restricting the use to non-GPDO permissions whereas "limitations" would seem to support the use of BCNs in appropriate GPDO cases. Can you confirm that your definition is the right one? MS.

Further Response

The typo is acknowledged. Two other readers have expressed similar views to yours. I have looked at this issue further and the Encyclopaedia of Planning Law confirms BCNs can be used against non-compliance with GPDO limitations. Thank you for correcting this. JH.

A telecom company has erected a temporary emergency mast on a building within a conservation area using permitted development rights under the General Permitted Development Order 1995 (GPDO). Permission for a permanent mast has recently been refused on this site and an appeal dismissed. Other sites have been deemed unsuitable by the council.  When the permitted six months is up what is to prevent the emergency equipment being moved to another location within the conservation area?

The GPDO allows the use of land in an emergency for a period not exceeding six months to station and operate moveable telecommunications apparatus required for the replacement of unserviceable telecommunications apparatus. On the face of it this wording would not seem to permit a system operator to hop about an area indefinitely using a temporary mast, as a specific emergency related to particular unserviceable apparatus is implied. Have readers any experience of this provision being tested?

Is any alteration to an outbuilding within a dwellinghouse curtilage now permitted development? RA.

Any alterations which do not change the shape of the outbuilding such as inserting an additional window would be permitted development. JH.

Is a link detached house, i.e. one adjoined to its neighbours just by garages, a detached house for the purposes of class A1 (e) of the recent General Permitted Development Order amendment? A householder is arguing he can build a 4-metre deep extension on such a property. AG.

There is no definition of "detached house" in the order, so the term would have to be interpreted as used in common parlance. I would consider most people would consider a link detached house to be detached, so I would suggest a 4-metre extension could be built, but this is a personal opinion and I am not aware of any appeal decisions on the issue. JH.

I recently determined an application for prior approval for a phone mast. It was refused prior approval and the notice was issued within 56 days. The applicant, however, has suggested that as the council did not advise that prior approval was required within 56 days, no matter whether a decision was made, the equipment is authorised. From information supplied by the applicant it appears this has happened in other areas and operators are using this loophole to install equipment which authorities have deemed inappropriate rather than appealing the decision. I would be grateful for any advice you can give. DJ.

In a lawful development certificate appeal made a year ago in London (DCS number 100-051-671), in similar circumstances the inspector considered in deciding to refuse a mast the council had also had to take the view that prior approval was required and dismissed the appeal. This seems strong support for you disagreeing with the applicants. As this issue has yet to go before the courts and a different interpretation is therefore possible, it would seem wise for authorities when refusing prior approval for telecommunications applications also to ensure they include a notification that prior approval is required. JH.

Response

The questioner refered to ‘this loophole’ in the legislation.  There is no loophole.  The permission is granted by the General Permitted Development Order.  The purpose of the prior approval application is to discharge the condition precedent at A3(3) of part 24, and the condition can be discharged in any one of the four ways set out at A3(7)(a)-(d).  If the council does not notify the applicant within 56 days that prior approval is required, the condition precedent is discharged under A3(7)(d) and the permitted development may be carried out in accordance with A3(8)(d) and A3(9)(d).

In your reply you refer to an appeal decision in London.  The Inspector could, of course, only determine that appeal on the submissions made by the parties.  As someone who regularly writes to council’s on code operators’ behalf claiming permission where the council has not notified the applicant that prior approval is required, and indeed was involved directly with two of the appeals referred to in the London decision, though not involved with the appeal itself, I consider this appeal was wrongly decided. 

The London inspector’s decision letter effectively makes the Part 24 statutory requirement in A(3)(7)(d) redundant, which is not permitted.  The requirement for a council to give separate written notice of its determination that prior approval was required, was specifically introduced as a ‘new’ requirement by government in the 1999 Amendment Order, and has been retained in England by the 2001 England Amendment Order, and in Wales by the 2002 Wales Amendment Order.  Moreover, if separate notice of the council’s determination is not required, why then at Appendix H of the "Code of Best Practice on Mobile Phone Network Development", published separately by the Office of the Deputy Prime Minister in 2002 and the Welsh Assembly in 2003, is there Local Authority Standard Form 3 specifically designed to enable the council to give written notification of its determination that prior approval is required?   

In my view, had the London Inspector’s attention been drawn to these matters and also, amongst others, to Appendix E of Circular 9/95, which was published following the introduction of the prior approval procedure specifically to explain its operation for masts up to 15 metres in height, I believe the London appeal decision would have been different. IW.

Further Response

I suspect this issue is likely to go to the High Court sometime and obviously this will clarify the issue. In my reply I did advise councils to include notifications that prior approval is required when issuing prior notification decisions in case the High Court agrees IW’s interpretation of this issue. JH.

My authority is dealing with an airport operator’s application for a multi-storey car park on airport operational land. The operator claims this is permitted development under part 14, class 44(1) of the General Permitted Development (Scotland) Order 1992. The car park would be opposite the passenger terminal entrance and would be available for passengers, staff, visitors and the general public. The operator claims that it is an operational building, which removes it from the exclusions specified in Class 44(2)(b), but I am not convinced. To me the definition of an operational building covers such matters as facilities for bussing passengers between aircraft and the terminal, travelators and infrastructure such as the rail link between the Gatwick terminals. This is an important issue as it determines who should pay for road improvements required for the traffic generated by the car park. Do you have a view? HC.

The Scottish order defines an operational building as "a building, other than a hotel, required in connection with the movement or maintenance of aircraft or with the embarking, disembarking, loading, discharge or transport of passengers, livestock or goods at a relevant airport". HC considers that the car park is not an operational building because it will facilitate transporting passengers and others to and from the airport, rather than "at" the airport. I cannot find any relevant appeal decisions other than an English one (DCS Number 049-219-966) in which the inspector did not specifically indicate whether a car park is operational in terms of serving the airport. In any case, the wording of the equivalent English provisions is somewhat different. I would, however, point out that the definition of "operational building" in the Scottish order specifically excludes a hotel that would have a function akin to a car park in that it would primarily but not exclusively serve airport users. On this basis, I consider that the car park does not require planning permission, though I do share your concern that this means the local council must fund the road improvements. JH.

In DC Casebook on 9 January, there is an appeal report from South Wales (DCP No: 100-058-0842) where the inspector allowed a convenience store saying the existing car showroom on the site could have been used as a shop under Part 3, Schedule 2 of the General Permitted Development Order 1995. I understood this right was removed under the amendment to the Order made in 2005. Did this amendment only apply in England? HG

The 1995 Order applied to England and Wales. Following the establishment of the Welsh Assembly, however, since 1999 different amendments passed by the Assembly have meant that the stipulations of the Order in Wales have "diverged", e.g. the October 2008 amendments to permitted development for houses does not apply in Wales and there are currently no plans to introduce such provisions there. As you suggest, the 2005 amendment only applies to England so the right to use a car showroom for retail purposes still applies in Wales. JH. 

Would fixing a large canvas marquee to a tarmac surface by inserting numerous, approximately 0.75m steel pegs, mean that the marquee is no longer considered a ‘moveable structure’ under Part 4 Class B of the General Permitted Development Order 1995 (GPDO)? CW.

Assuming the marquee was removed at the end of the 14 or 28 day period as appropriate, the only issue left to be considered is whether any "eyeholes" left in the tarmac were sufficiently small to be de minimis as this is the only element of the marquee permanently remaining. I suspect they would be considered de minimis. JH.

We have queried an application received for the change of use of an existing building with permission for use classes B1, B2 and B8 to D2 and B1, B2, B8. The applicant argues that, if the D2 permission was implemented and then ceases within 10 years, the building could revert to B1, B2 and B8 uses under schedule 2, part 3, class E of the General Permitted Development Order 1995. However we consider that multiple uses can only be applied for with new development. Could you clarify the situation? LB

There is no restriction in the Order or elsewhere which would preclude making an application for alternatives to existing uses under this provision. In a current case I am familiar with, a landlord has had difficulty letting restaurant premises and has applied for a "flexible" A1 and A3 permission, presumably so it could be occupied by a charity shop, "pound shop" or similar without foregoing the A3 use rights. JH.

What sort of works are permitted by part 12, class A of the General Permitted Development Order 1995? For example, would earthworks/land raising be considered as permitted development if they were less than 200 cubic metres, leveling land to form a tennis court and a fence higher than 2 metres be covered by these provisions? JJ.

Part12, class A allows any small ancillary building, works or equipment on land belonging to or maintained by local authorities required for the purposes of any function exercised by them on that land otherwise than as statutory undertakers, provided they do not exceed 4 metres in height or 200 cubic metres in capacity. Section 4.3427 of Development Control Practice does consider these provisions. As in many instances the developing authority is also the planning authority, there are not many appeals, etc where their interpretation has been an issue, however. In many instances interpretation must be a matter of fact and degree. To use your examples, the formation of an earth mound to provide, say, a noise barrier of less than 200 cubic metres would clearly fall within this category, leveling an area to form a tennis court would unless very large scale works were required and a fence up to 4 metres high would. JH.

We are dealing with a prior approval submission for siting and design details of an agricultural building under class A of part 6 of the General Permitted Development Order 1995. We told the agent that the building should be lowered for us to be able to give approval. He has replied that the applicant is unwilling to lower it but will incorporate a screen planting scheme into the submission of details. This would overcome our objection to height. Our concern, however, is there is no mechanism to enforce against failure to provide such planting or ensure its retention.

We have received legal advice that we only have powers approve or not approve submitted details and not impose conditions. Furthermore, the Encyclopaedia of Planning Law and Practice (paragraph 3B-2110.3) says, ‘The Order (does not) confer powers to impose conditions on approval it is merely a power to approve or not approve the details submitted by the applicant’. Whilst an acceptable landscaping scheme could be submitted, normally we would impose timetabling and aftercare conditions. Have you any guidance on how we can take this forward? DE.

Paragraph E22 of Annex E of Planning Policy Guidance Note Number 7, which is still in force although the rest of the Note is superseded, states, "Subject to the normal criteria governing the use of conditions in planning permission, conditions may be imposed when approval is given. (DOE Circular 11/95 gives further advice in this respect.)".  Furthermore, conditions requiring a landscaping scheme and its subsequent maintenance have been imposed in one instance where there has been a prior approval notification for an agricultural building in Cheshire (DCP Number: 045-813-887). On the other hand, as you point out, there is no power to impose conditions on such approvals expressly given in the Order as the Encyclopaedia confirms.

An analogous situation is submissions for phone mast, etc prior approvals under class A of part 24 of the Order, as amended. In my experience, conditions are similarly often placed on such approvals both when being granted by planning authorities and on appeal, although there is likewise no power given in the Order to do so. Government policy and practice would thus appear to support the use of conditions for these approvals. Nevertheless, if a High Court challenge were made to such conditions, it is possible that they would be held to be unlawful. If conditions are imposed, it would seem they should relate to issues of siting and design, not say an issue like highway safety. In the circumstances you describe, I consider a landscaping condition would be appropriate. JH.

A gypsy purchased agricultural land, much of which is liable to flood, in our parish in 1992 and has subsequently built up the levels and has kept a large number of horses on the site. Hay is purchased throughout the year as there is virtually no grazing available due to the land raising and other activities on the site. The council advises that a certain amount of earth moving is permitted development on agricultural land the other activity is "de minimis". The parish council feels the agricultural use was abandoned in 1992 and therefore the land-fill activities are in planning contravention in addition to the use of the site as an illegal tip. Any advice would be appreciated. MO.

Section 4.3441 of Development Control Practice looks at the issue of whether agricultural permitted development rights apply to land where horses are kept. The case most relevant to your circumstances is Sykes v Secretary of State for the Environment [1981] where it was held that if horses were simply turned out on land with a view to feeding them from the land, clearly the land was in use for grazing and that was an agricultural use. On the other hand, if the horses were being kept on the land and were being fed wholly or primarily by some other means, then the land was not being used for grazing so was not an agricultural use so the land was merely being used for keeping the animals. It would seem from what you say; this land is no longer in agricultural use and therefore does not have agricultural permitted development rights. I would also point out that the General Permitted Development Order 1995 provides that generally if "waste materials" from outside the holding are deposited on a site, their deposit ceases to be permitted development under class 6 of schedule 2 of the General Permitted Development Order. Thus, from the information you have supplied the raising up of the land seems not to be permitted development. JH.

My authority is building a new library and has secured additional funding to install photo-voltaic solar panels. Part 12 of Schedule 2 of the General Permitted Development Order allows small developments by local authorities as permitted development. Could these panels be added under this provision? JG.

The relevant section of part 12 permits the "erection or construction and the maintenance, improvement or other alteration by a local authority or by an urban development corporation of any small ancillary building, works or equipment on land belonging to or maintained by them required for the purposes of any function exercised by them on that land otherwise than as statutory undertakers".  It might be argued that installing the panels would fit within the "works" category. Adding these during construction, however, would be analogous to adding permitted development extensions to a house under construction. As section 4.3443 of Development Control Practice explains, this would be a breach of planning control - such extensions could only be added after the house was completed and occupied.  If these panels were added during construction this would be a deviation from the approved plans as the construction of the library is one entity. I would advise obtaining a new planning permission. JH.

I own a 5.24 ha agricultural unit and submitted a prior notification under schedule 2 part 6 of the General Permitted Development Order 1995 to erect multiple agricultural buildings, in total less than 465 sq m.  The authority replied "...only one building can be applied for as prior notification.  Any other proposed buildings within a 90 metre radius should be the subject of a full application." On challenging this, I was directed to the wording of Part 6.A.a) where the word used is "building" singular, to support their interpretation (i.e. there is no explicit mention of "buildings" plural, though "development" is used in D.2) and also to the interpretation D.2(a) as a reason why one may not apply multiple times simultaneously for prior notification.  Another planning officer has told me that "the preceding two years" mentioned here refers to the substantially completed construction of the proposed building, not the date of prior notification. Do you have a view? JD.

I have not been able to find a court case or appeal decision where this issue has been determined, so have looked at the wording of the Order to deal with your question. As you indicate, Part 6.A.a) uses "building" in the singular and this support’s the council’s view. On the other hand this produces a rather illogical interpretation. If a farmer obtains prior notification for a small building, he is then stymied from using this provision for two years, although he may have "spent" only a small part of his 465 square metres allowance. The prior notification procedure set out in A.2(2), however, also uses the singular "building". Thus, it would seem, on a strict interpretation, someone wanting to erect multiple buildings can use this provision, but has to make separate prior notification applications for each one. This, however, is a tentative conclusion as these provisions are quite complex and I wonder if any readers can comment further on this issue.

Regarding your query about the meaning of "the preceding two years" in  D.2(a), I presume it relates to the date of commencement of the building, but again it is not very clear. JH.

If a council or parish council has delegated its powers to manage allotments to a management committee, can that body carry out small-scale works such as providing sheds on individual plots or a small communal car park as permitted development under the provisions of class 12 of schedule 2 of the General Permitted Development Order 1995? LW.

I am not entirely sure and maybe a reader can advise, but, applying the principles of an appeal decision relating to the provision of a skateboard ramp in Wales (DCS No.029-875-317), if there is a clear agreement that the committee would provide the facility on behalf of the authority, it would then seem to be covered by class 12. JH.

My client removed 5m of hedgerow and hedge-bank to access 2ha of farmland. The council agreed it was ‘permitted work’ under the Hedgerow Regulations 1997. Permission was granted under the Highways Act to cross the unclassified lane verge and a gate was installed with a hardstanding in front. A second hardstanding to park agricultural machinery was made inside the field. The council maintains that because a 1m high hedge-bank existed before the access was opened that the amount of material excavated (approx. 15m3) would take it over that permitted by the General Permitted Development Order 1995 (GPDO). The Council contends that because only the hardstanding in front of the gate was in place and only horses were grazing when they visited that the access is not agricultural.

The land is being re-registered as an agricultural holding and there is no intention to change it to horsiculture. Would the hardstanding in front of the gate entrance be permitted agricultural development and would the excavation of the hedge-bank mean that the engineering operations would exceed those permitted by the GPDO?

Class B of part 6 of schedule 2 of the GPDO allows the provision of a hard surface for agricultural purposes on agricultural land of between 0.4 and 5 ha and that should cover the hard surface within the field. Class B of part 2 allows the construction of means of access to unclassified roads associated with permitted development. The provision of a hardstanding as part of the access would not preclude it from being permitted development. Except for agricultural ones vehicular accesses normally include hardstanding and from your description of the work, the removal of the hedge-bank seems reasonably small in scale and would seem ancillary to the construction of the access, though it is possible an Inspector might take a different view on appeal as this would have to be assessed as a matter of fact and degree.  Certainly, the GPDO does not preclude removing material for such purposes. Part 6 rights, however, only apply to land used for agriculture for trade or business purposes before the development is carried out and, if it was being used to keep horses when the work was carried out, that would not normally be an agricultural use. Thus, it would seem this work would require planning permission. JH.

An authority informs me it cannot determine an agricultural prior notification application because the site is not part of an agricultural unit so planning permission is required. The land is used for agriculture but they consider it does not form part of an agricultural unit because there is no farmhouse connected to the land. Is the interpretation correct and has there been any case law on this? NH.

I have not previously heard the suggestion an "agricultural unit" must include a dwelling. The definition of "agricultural unit" in section D1 of part 6 of schedule 2 of the General Permitted Development Order 1995 refers to any dwelling occupied for the purpose of farming the land by the person who occupies the unit or any farmworker’s dwelling. The use of the indefinite pronoun, "any", clearly indicates a unit does not have to have a dwelling. Thus, I would not accept the authority’s assertion. Whilst I am not aware of a case where this issue has been specifically raised, in a ministerial decision in Wiltshire (DCS no 030-029-400), where the issue was whether an agricultural building was permitted development, the unit did not appear to include a dwelling, but this issue did not arise.  JH. 

What Part of the General Permitted Development Order 1995 should a natural gas terminal come under? Operated by a private company, it receives and processes the gas and pipes it to another terminal run by National Grid who then distributes it across the country. Is the company which initially receives and processes the gas a 'statutory undertaker', and a 'public gas supplier' under part 17 class F? Or does it fall within part 8, industrial development? JW.

For part 17 rights to apply, the operator would have to be a ‘public gas supplier’ which I would understand to mean a company that supplies gas to the public rather than to the gas national grid. Part 8 rights only apply to buildings used for "the carrying out of an industrial process or the provision of employee facilities", so if the terminal just receives gas, stores it and sends it to the national grid, rather than processing it in some way, e.g. by putting additives in, part 8 rights would not apply. JH. 

A client owns land that has a planning permission granted in 1952 for use as campsite for up to 28 days a year.  There are no conditions restricting tent numbers. There are wooden structures on the land used as a toilet/shower block, café and recreation area. My client wants to increase the number of days on which the site can operate.  In addition to obtaining permission to extend the number of days could he also operate for  a further 28 days by virtue of  part 27 of schedule 2 of the General Permitted Development Order 1995 which permits camping by members of certificated recreational organisations?  Alternatively could he use part 4 class B rights for temporary uses?  GS.

As far as I can verify there would be nothing to prevent a further 28 days of part 27 use, but camping would be restricted to the members of the certificated organisation. Part 4 class B, however, only permits temporary uses of maximum 28 days. As the land is already used for camping for 28 days, albeit with planning permission, a further 28 days use could not be undertaken. Before using part 27 rights, do check the terms of the conditions on the original permission in case these rights have been removed

Response

Under Part 27 uses the erection of tents is technically ancillary to the use of the land by the exempt organisation for recreational purposes, so is therefore an entirely different use from use as a campsite as such, whether as a temporary use under part 4 or under a specific consent as in this instance. There is no limitation of time in relation to part 27; such uses can be pursued throughout the year, alternating with other permitted uses. The usual problem is the degree to which it is accepted that facilities are provided ancillary to the part 27 use: this does not arise to anything like the same extent in the present case because there are structures on the land which are lawful on a permanent basis. My only question would be the extent to which the use of the shop outwith the 28 days of the existing consent would be legitimately regarded as ancillary to the exempt organisation use, where it is operated by the site owner rather than the exempt organisation. I am not aware of any instance in which part 27 rights are sought to be removed, and such a removal would seem to run against the general exception of such uses from planning control. PS.

Further Response

I am somewhat bemused by the advice given, that because the land is already used for camping for 28 days under a permission, a further 28 days use could not be undertaken for a temporary use.  Although this advice is logically correct, I believe that unless the site has had its permitted development rights removed by a condition or an article 4 direction, they are lawfully allowed to activate them.  Obviously the argument then surrounds whether the use is deemed to be permanent or temporary because wooden buildings have been placed on the land and therefore judgement has to be made whether the land can revert to other lawful uses such as agriculture between its use as a campsite. SH.

Further Response

I must confess I have little experience of the camping/caravanning provisions of the GPDO so am grateful for the extra comments. What I said relating to entitlement to additional part 4 rights was based on logic – using a planning permission and part 4 rights would seem to be having your cake and eating it. I am not aware of any court cases or appeals which have explored this issue. If other readers have views on this issue, I would be pleased to hear them. JH.

A school is to be demolished and rebuilt on the same site. Whilst this is occurring, temporary classrooms will be needed. I consider they will be permitted development under the provisions of class A of part 4 of schedule 1 of the General Permitted Development Order 1995, but the planning authority disagrees. Can you advise? CB.

In an enforcement appeal in Dorset in 2006 storage of a container for furniture and personal effects, whilst internal work was carried out to a house was considered to fall within class A of part 4 (DCS No. 100-041-260). By analogy, the temporary classrooms would seem to be permitted development. JH.

Do rights under part 6 of schedule 2 of the General Permitted Development Order 1995 apply if the agricultural use of the site is not operated as a business, e.g. where a hay crop is taken to feed the owner’s own horses? PT.

The interpretation section of part 6 indicates the rights granted only apply to land "used for the purposes of a trade or business". In South Oxfordshire v Geoffrey East & Secretary of State for the Environment 1987 it was established that it was not necessary for an enterprise to be viable in order for this definition to apply, so long as the activity was not purely a recreation, but if an activity is purely hobby farming then a proposal could not be permitted development. It is also worth mentioning in this context that keeping horses for recreational purposes would not be considered an agricultural use both for purposes of the General Permitted Development Order or the Town and Country Planning Act 1990. More guidance on the issues of the status of hobby farming and whether keeping horses can be an agricultural use can be found in section 3.441 of Development Control Practice. JH. 

A building with a phone mast on it is to be demolished and rebuilt. The phone operators say they can put up a temporary mast, presumably until the mast can be reinstated on the new building, under the "emergency" provisions under part 24 class A of schedule 2 of the General Permitted Development Order 1995 (as amended). Is this correct? WN

I am not aware of any appeals or court cases where this issue has been decided. Class A permits "the use of land in an emergency for a period not exceeding six months to station and operate moveable telecommunication apparatus required for the replacement of unserviceable telecommunication apparatus, including the provision of moveable structures on the land for the purposes of that use". The Concise Oxford Dictionary defines an "emergency" as "a sudden state of danger, conflict, etc requiring immediate action". The use of the word "sudden" infers circumstances which could not be foreseen such as it having to be demolished because of an unanticipated declaration as a dangerous structure, not its ordinary demolition. JH.

A school building is 4 metres high and over 10 metres from the school boundary. Works are proposed involving the erection of air handling units, handrails and ductwork increasing the height to 4.5 metres. Under the new amendment to part 32 of schedule 2 of the General Permitted Development Order 1995 planning permission is required 'if the height of the building as extended or altered would exceed-

(i) if within ten metres of a boundary of the curtilage of the premises, five metres; or

(ii) in all other cases, the height of the building being extended or altered.

It seems planning permission is required because the building work will increase the building’s height. However if the building was within 10 metres of the boundary planning permission would not be required? Do you agree? DF.

It does seem anomalous, but your interpretation appears correct. Whilst restricting development near boundaries is obviously appropriate for protecting neighbours’ amenity, this is poor drafting. I wonder if the government will consider amending this provision. JH.

New use classes legislation has introduced "Class C4: Houses in multiple occupation". Do class C4 properties benefit from permitted development rights under class 1 of schedule 2 of the General Permitted Development Order 1995 (as amended)? Also, can an application for an extension to a C4 property be submitted using a householder form and would a design and access statement be required?  MM

In the case of Gravesham Borough Council v Secretary of State for the Environment & Michael O'Brien [1983] it was held that in assessing whether a property was a dwellinghouse one had to examine whether it had the facilities which might ordinarily be expected in a dwellinghouse. Within that context I would not consider a house in multiple occupation to be a dwellinghouse for General Permitted Development purposes and in my experience that view was taken before the recent changes.

The General Development Procedure Order 1995 (as amended) uses the same definition of "dwellinghouse" as the General Permitted Development Order 1995 does. Whilst applications relating to conventional dwellinghouses and, under the new provisions applicable from 6 April, flats generally do not require design and access statements, given that the same definition is used in both orders, I would consider a statement would be required for alterations to a C4 property unless the floor area was not increased. Similarly, as a C4 property is not a dwellinghouse, a householder form should not strictly be used for alterations to a C4 property, but I would suggest that, unless use of the wrong form causes particular problems, authorities should take a pragmatic view and process an application for a C4 property although it might be submitted on a householder form.  JH. 

A client occupies two adjoining fields in different ownerships and has for many years used each to hold a car boot sale, for 14 days, as provided for by part 4, class B of schedule 2 of the General Permitted Development Order 1995. The Council accepts both fields are individual planning units.

Over the last 4 years, the boot sales’ popularity has grown so when he uses the smaller field, he allows parking on the larger one. There is no charge for parking and no market related activity takes place on the field used for parking. He considered he was allowed to use the field for up to 14 days as a market, and for 14 days as a car park.

Last year, the Council served a temporary stop notice, alleging the unauthorised use of land for the holding of markets and/or car boot sales and ancillary car parking. I consider his use of the larger field as a market for 14 days and as a car park for 14 days accords with the permitted 28 days use of land, for any purpose. Could you help? RR   

It is important to consider what the planning unit is in these circumstances. Issues of defining the planning unit are considered in section 4.3424 of Development Control Practice and section 4.324 considers planning unit issues in relation to part 4, class B temporary markets. Given that two adjoining fields are used for one business, I am somewhat surprised the planning authority has considered them two planning units up to now and an appeal decision in Norfolk in 2007 (DCS no 100-047-598) supports my view. If one field is being used for parking ancillary to the boot sales on the other field, I would consider there is now definitely one planning unit with a 28-day market use, so the council is entitled to serve a temporary stop notice. JH.

Do you have any case law or discussion on the definition of a dual pitched roof in the October 2008 General Permitted Development Order Amendment? Our authority deems that it refers to a gable roof but this means a hipped roof which would have less impact requires planning permission. PI.

From the consultation exercise carried out before the amendment was introduced, it appears the intention was the 4 metre height allowance for outbuildings would apply to those with "dual-pitched/ridged roofs". I am not aware of any appeal decisions where this issue has been considered. From a practical point of view, it seems preferable for authorities to allow outbuildings with hipped roofs to be up to 4 metres high without needing planning permission as otherwise residents might opt to build outbuildings with gabled roofs to save the need for an application which, as you point out, would often have more impact up neighbours. As with many of the October 2008 amendment provisions, it would have been preferable for this definition to have been clear from the outset, however. JH.

Response

This matter is currently the subject of an lawful development certificate appeal I am involved in.  The decision is expected shortly. In arguing his case the appellant's agent have drawn attention to a recent case (DCS no: 100-067-114) where an inspector granted a certificate for a gym/games room outbuilding with multi-pitched roofs.  The certificate was not refused because of its roof design and the inspector did not seem to worry about the multi-pitches.  He did not question the description of the building as being designed with a dual-pitched roof up to 4m high.  Whilst not tackling the subject of dual pitches directly, the case does seem to indicate that a multi pitched roof can be described as dual-pitched.  AB

A woodland has recently been sold to 6 separate purchasers who have placed caravans, site offices, tents and canvas shelters on their plots. These are used as shelter/accommodation whilst they are on site and for tool and equipment storage. We consider these structures require permission. They are not permitted development under part 7 of schedule 2 of the General Permitted Development Order 1995. Could I have your views? GT.

This question raises several issues and I can only give general guidance rather than a specific answer. Firstly, you need to decide whether some of the structures in fact constitute operational development – it is possible the caravan, tents and canvas shelters might not be. You must then decide what the plots are being used for. If they are being used for forestry, such use would obviously not be a breach of planning control (the use of land for forestry, like agriculture does not require planning permission). If, however, they are being used for "leisure plots" or a combination of forestry and "leisure plot" use, then a material change of use would have occurred and if an enforcement notice is served against such a use it can also require the removal of the structures even though they might not constitute operational development.

If the land is being used for forestry, any development carried out under part 7 has to be "reasonably necessary" for forestry purposes, so unduly large structures would not be authorised. Finally, part 7 requires any buildings erected under it have to be the subject of a prior notification and, if this has not taken place, they would be in breach of planning control, though, before deciding to serve an enforcement notice if this is the case, you must, of course, consider whether it is expedient. JH.

We have received a prior notification for the erection of an agricultural building which requires the demolition of an abandoned dwelling. The dwelling is substantially intact with all walls and roof in place and exceeds 200 cubic metres. The building is not listed or in a conservation area.  Section 1.1(e) of the Town and Country Planning (Demolition which is not Development)(Scotland) Direction 2001 indicates demolishing buildings up to 50 cubic metres does not constitute development. Would it follow that demolishing a building greater than 50 cubic metres would constitute development? Section 1.1(a) states the demolition of any building other than a dwellinghouse etc is not development but does not have any volume limitations. We are considering the residential status of the building, i.e. is it an abandoned dwelling. We are also considering whether the building’s size is such that demolition would constitute development so we should seek an application for this. We have a number of interpretations of the Direction, so your opinion would be appreciated. MT.

Demolition in Scotland is controlled under fairly similar provisions to those applying in England. These are quite complicated, but are explained in section 4.3114 of Development Control Practice. In both countries development is now defined to include demolition. Scottish circular 1/2001 includes the direction referred to in the question indicating what buildings can be demolished without needing planning permission – there is an equivalent direction for England attached to circular 10/95. The General Permitted Development) (Scotland) Amendment (No.3) Order 1994 introduced a new class of permitted development, class 70, which mirrors the provisions of part 31 of schedule 2 of the General Permitted Development Order 1995 including setting out a prior notification procedure for demolishing dwellings and buildings adjoining dwellings .

Both the English and Scottish General Permitted Development Orders indicate demolition does not allow under their respective classes demolition if "a building has been rendered unsafe or uninhabitable by the action or inaction of any person having an interest in the land on which the building stands; and it is practicable to secure safety or health by works of repair or works for affording temporary support". If the building meets these criteria, and from your description it may do, then planning permission would be required for its demolition. If it does not meet them, then it would be a dwelling to which the prior notification procedure would apply. The council cannot prevent demolition under this procedure, but can control how it is carried out and how the site is restored. Whether the demolition is to be subject of planning permission or prior notification, the relevant procedure will need to be followed before the work is carried out. I would not consider the prior notification to erect the agricultural building would authorise the work. JH.

Can you advise on the possibility of applying for a retrospective "determination as to whether prior approval is required for siting or design" under part 6 class A paragraph A2(2)(i) of schedule 2 of the General Permitted Development Order 1995. I have always considered that once a development has taken place without such a prior determination, a full application is required, but an agent now disputes this. NH.

The Town and Country Planning Act 1990 has provision for retrospective planning applications, section 63, but there are no parallel provisions for retrospective prior approval in the General Permitted Development Order. Furthermore, for a proposal to be permitted development, it must "tick all the boxes" in the relevant category in the Order. The Order clearly stipulates for part 6 the prior notification application should be made "before the development commences" and, if this is not done before commencement, that "box" cannot be "ticked". An enforcement appeal relating to the construction of a private road for forestry under part 7 of schedule 2 of the Order in West Sussex  where prior approval had not been obtained (DCS no 100-062-075) confirms this view. JH.

Our council has recently received complaints regarding solar panels prominently located on a house.  It is not listed or within a conservation area or a world heritage site.  Most of the south-facing roof slope is covered with panels.  Can you assist with the interpretation of the Conditions A.2. of class A of part 40 of the General Permitted Development Order 1995 (as amended) which requires "(a) …. so far as practicable, be sited so as to minimise its effect on the external appearance of the building and (b) …. so far as practicable, be sited so as to minimise its effect on the amenity of the area"?  Are there any circumstances in which solar panels like these may be regarded as requiring permission?  RD

You have sent me a photo of the house and almost all one side of the roof is covered with solar panels and this does make the house stand out. It is perhaps not surprising it has generated complaints. Criterion (a) requires the effect on the external appearance to be minimised. Given that this appears to be the only south-facing roof slope, I would consider this has been met. Similar in relation to criterion (b), the panels have been sited to minimise their effect on the amenity of the area. Thus, assuming all other requirements are met, these panels would be permitted development. As a general point it is worth mentioning in assessing whether solar panels are permitted development one only look at the siting not the colour, size or texture of the panels  JH.

I am trying to interpret part 8, class A, A.1 (b) of the General Permitted Development Order 1995 as amended. A storage (B8 use class) building is just within 10m of the boundary and the building is approximately 8m high. My client wishes to replace windows and clad the building. Does part (i) mean that the building cannot be altered in any way without permission since it exceeds 5m in height or does that mean that only works that result in the building exceeding 5m require permission?  MP.

Omitting wording not relevant to your case, Class A reads, "Development is not permitted if the height of the building as extended or altered would exceed, if within ten metres of a boundary of the curtilage of the premises, five metres". The use of the word "would" implies to me that, if the works result in a building exceeding 5 metres when it did not previously, planning permission would be required, i.e. your works should not need permission. The wording is not very clear, however, and in view of this it would be advisable to discuss the issue with the planning authority and, if appropriate, obtain a certificate of lawful development. JH.

Response

Since the wording does not include the phrase "as a result of the development", if the building was more than 5m in height before the works then, by definition, it would be afterwards. This suggests that the works would need consent. SW.

You could be correct, but the provision would seem more logical if it prevented new "tall "buildings near a boundary rather than preventing alterations to existing "tall" buildings near a boundary and the use of the word "would" supports my interpretation. It would be better if the amendment had been worded more clearly.

On four separate planning applications, a flat-roofed dormer loft conversion and other extensions were proposed. In each case we were forced to remove the dormer elements, as it conflicted with the council’s current supplementary planning guidance even though they were permitted development. The remaining elements were approved but confirmation was sought that the dormers were permitted development. Subsequent confirmation contained a caveat saying the response was not legally binding, leaving applicants with a certificate of lawfulness application the only option for formal confirmation. We welcome your thoughts as to whether this stance is appropriate and whether the permitted development aspects should be included within an approval for other elements. IH.

It does seem inappropriate for this authority to have guidance which prohibits what can be built as permitted development. Regarding the use of the caveat, even if this were not included in the authority’s response, the views expressed would not bind the authority. As section 6.37 of Development Control Practice on estoppel explains, statements by individual officers cannot bind authorities. The only way to obtain a binding view on whether a proposal is permitted development is to obtain a certificate of lawful development. JH.

Could you advise when satellite dishes on businesses within conservation areas require planning permission?  GH.

Permitted development rights for satellite dishes on business premises, flats, etc are found in part 25 of schedule 2 of the General Permitted Development Order 1995 which has subsequently been modified in respect of both England and Wales – those on dwellinghouses are in class H of part 1. The rights in class A of part 25 relating to buildings over 15 metres high do not apply in conservation areas (or on other article 1(5) land), but Class B rights, relating to buildings less than 15 metres high apply in conservation areas, etc. JH.

Is permission required to demolish the chimneys of a house in a conservation area? VF.

Conservation consent would not, of course, be required for partial demolition applying the principles of Shimizu (UK) Ltd v Westminster City Council 1997 which indicated only a building’s substantial or total demolition would require this. As the definition of "building" in article 1 of the General Permitted Development Order 1995 does not include part of a building in class A of part 31 of the Order, it could be argued that any partial demolition of a house requires planning permission (see Journal of Planning and Environmental Law 1994 p777 and 1995 p370 and DC Forum for 6 June 2008). Depending on the nature of the works and the position of the chimney, chimney demolition might fall within class G of part 1 of the schedule to the October 2008 amendment to the General Permitted Development Order. I regret I cannot give a more definitive answer. As chimneys can be quite an important feature contributing to the character of a conservation area, it is unfortunate that the law is not clearer. JH.

My local council wishes to pave an area 20 metres by 70 metres which is part of a seafront open space currently used under licence as a publicly available putting green. The public would have free access to the paved area but it would, of course, reduce the putting green’s size. A low wall would have to be wholly or partly removed to provide pedestrian and possibly vehicular access to an adjacent classified road. Would this require planning permission? JS.

The paving works would because of the size of area seem to go beyond the scope of Class 12 of Schedule 2 of the General Permitted Development Order 1995 and creating an access to a classified road would be outside the scope of Class 2, so planning permission would be required. JH.

Class A of Part 4 of Schedule 1 of the General Permitted Development Order 1995 allows temporary hoardings round construction sites. There does not seem to be a limit on their height, unlike with conventional walls and fences. This seems strange. Do you know why this is so? Could not high hoardings at a road junction obstruct visibility and create a danger? MC.

Particularly as they are only going to be of a temporary nature, builders are unlikely to want to spend money erecting hoardings higher than security needs dictate. Furthermore, because such hoardings are by definition normally in place for a relatively short period, if they are unsightly or cause other problems, such harm would be short-lived. Regarding your query about hoardings obstructing visibility splays, article 3(6) of the Order precludes development from being permitted development which obstructs the view of people using a highway used by vehicles so as to be likely to cause a danger.

If a parish council has an enclosed sports field and charges for its use, can they use their rights under the General Permitted Development Order 1995 (as amended) to erect a 4m netted fence around it, or would it be classed as a commercial site? AB.

You are no doubt referring to class A of part 12 of the General Permitted Development Order, development by local authorities. These rights extend to parish councils and the parish council would not be operating the sports field as a statutory undertaker (part 12 rights do not apply where a local authority is acting as a statutory undertaker), so, yes, I would consider this to be permitted development. JH.

A number of community groups, including parish councils wish to create new allotments but are getting conflicting advice from planning departments and the National Society of Allotment and Leisure Gardens (NSLG). The NSLG quotes Crowborough Parish Council v. Secretary of State for the Environment and Another (1980) where it was held that using agricultural land as an allotment did not require planning permission. The NSLG also state on its website that permission is not required for sheds, greenhouses and polytunnels below a certain size. However, I understand that the definition of agriculture in the General Permitted Development Order 1995 only covers land operated as a business which clearly excludes allotments. The only permitted development rights that I believe cover allotments is part 12 class A, development by local authorities.

Has there been any change since 1980 that would invalidate the Crowborough ruling? Am I correct in assuming that the permitted development rights for agricultural buildings do not apply to allotments? Is a parish council a local authority for part 12 purposes? Is there any provision that gives allotment owners permitted development rights for sheds, greenhouses or polytunnels? PB.

In "Crowborough" the definition of agriculture in primary planning legislation was examined. It was ruled that both the local authority and the Secretary of State had been wrong to assert that the use of land for allotments was a material change of use because of the greater intensity of use that would be involved, changes that would occur to the land’s appearance and the increased number of people visiting the site. The court held that what was being carried out on the land was horticulture, fruit growing and so on, which were included in the statutory definition of agriculture. Accordingly the wrong test had been applied.  It is, however, necessary to consider the nature of the use in assessing whether allotments are an agricultural use. If the allotments are used, for example, for leisure plot purposes or have a significant area of ornamental garden then it would not be an agricultural use. There have been no subsequent developments since the "Crowborough" judgment.

I agree that allotments would not enjoy agricultural permitted development rights. If a parish council were to erect sheds or other structures on allotments, they could do this under the class 12 rights, but these rights would not extend to the allotment holders. There is no other provision in the General Permitted Development Order giving permitted development rights for allotments, though often planning authorities turn a blind eye to small structures erected on allotments.  JH. 

Is permission required for a solar dome (a dome-shaped greenhouse) on the edge of a school playing field? The site is owned by the county council. The dome is 6 metres in diameter. The development does not fall within class A of part 32 of schedule 1 of the General Permitted Development Order 1995 (as amended) as it is on playing field that has been used in the last 5 years. However could it fall within part 12 class A, Development by Local Authorities? LB.

There is nothing in the General Permitted Development Order to say that, if a development does not fall within one category, it cannot be assessed as being permitted development in another. Thus, assuming the solar dome meets the height and volume restrictions in part 12 class A, I consider it would be permitted development. JH.


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