Bear Traps In Permitted Development And Prior Approval

• Published date: 06 July 2020
• Subject Matter: Real Estate and Construction, Construction & Planning
• Law Firm: Rollits LLP
• Author: Ms Elspeth Duemmer Wrigley

Not all development is equal. While most will require a planning application to be submitted to the relevant local authority, some enjoys deemed planning permission under the General Permitted Development Order 2015 ("GPDO").

The GPDO sets out a number of classes and types of (generally minor) development which do not require planning permission. However, while the GPDO can be incredibly useful in avoiding unnecessary costs and delays associated with a planning application, it is a complex piece of legislation that needs to be approached with caution. Beyond the initial list of operations that constitute permitted development, it also contains a tangled web of exceptions and conditions. The precise dimensions and nature of the development can make the difference between a need to apply for planning permission (e.g. an antenna of 19m may be permitted development, but one of 25m probably won't). Furthermore, where the development takes place can also have an impact (e.g. a development in an SSSI or Conservation Area may be excluded from relying on permitted development rights). Then, even if these hurdles are jumped, one more trap may still lie ahead: the need for prior approval from the Council.

For example, Part 16 of Schedule 2 to the GPDO 2015 gives deemed planning permission (subject to exclusions and conditions) for certain development to be carried out by, or on behalf of, an electronic communications code operator for the purpose of the operator's electronic communications network. An antenna may appear to satisfy all elements of Part 16A(a) so that the development would (on the face of it) appear to be permitted development. The next step would be to check that none of the restrictions either in Part 16A.1(i) (e.g. height) or A.1(4) (restrictions within certain designations such as SSSIs) apply.

Beyond the GDPO it is also necessary to check whether the site falls within the setting or curtilage of a Listed Building, as this may also restrict the use of permitted development rights. It is also necessary to check that no article 4 directions had been put in place by the Council which can also remove permitted.

However, even once all these bridges have been crossed, it is still not assured that the development can simply go ahead, as further conditions may apply under the GDPO. In the case of an antenna, even when the development is otherwise permitted under Part 16(A), Part 16.A.2(3) requires the prior approval of the Council.

The process is...