15 October 2018

Permitted Development Rights – Crystal Clear?

Permitted development rights (or “PD rights”, for short) have long been seen as extremely advantageous in expediting certain developments; even more so following the extension of these rights to permit the conversion of underutilised office and agricultural buildings to residential dwellings; a move thought to be key in solving the current “housing crisis”.

However, local planning authorities have not taken these changes lightly and are counteracting these extended PD rights in a number of ways – the adoption of Article 4 directions to have rights removed, or changing the status of land by enlarging Conservation Areas, as two examples. 

Therefore, a key question for any home-owner or developer is what they need to do to in order to take advantage of any existing PD right, before the local planning authority seeks to impose any such changes. Or in other words, when does that PD right crystallise?

The mere existence of a permitted development right does not mean that a developer can implement that right at any time in the future. That would mean that a local planning authority loses the ability to subsequently designate an area as a Conservation Area, AONB, or adopt an Article 4 Direction (for example) and therefore remove or amend any existing right. A PD right does not therefore crystallise at the point at which it is first created.

At the other end of the scale, it would be nonsensical for a PD right to only crystallise at the point when works are substantially completed. This would require a leap of faith from developers in carrying out development without knowing whether or not they were doing so lawfully.

The agreed middle ground, as upheld in Orange PCS v Islington LBC [2006] EWCA Civ 157 is that in the case of a PD right which does not require prior approval, the deemed permission granted by that right crystallises upon the commencement of works in reliance on it.

A question remains as to the extent of the works required to be carried out in order to have “commenced” and the courts have held that this is to be considered on a case by case basis.

The position is however slightly different where a PD right requires an application for prior approval to be made before works can start.

Works under any such PD right must not begin until the prior approval application has been made, and the local planning authority has either a) confirmed that prior approval is not required; b) given prior approval; or c) 56 days has passed following the receipt of the prior approval application by the local planning authority, without the authority notifying the applicant as to whether prior approval is given or refused.

Any PD right subject to the prior approval process does not therefore crystallise on the commencement of works, but on the receipt of either the local planning authority’s approval, notification that prior approval is not required, or on the expiry of the 56 day period.

For a developer to take advantage of a PD right, which may be subject to future change, they will therefore need to have either commenced works, or obtained a prior approval decision, as the case may be, prior to any such change coming into force. Once that has been achieved, those PD rights cannot be removed by any subsequent change in the status of the land.

Having secured any PD right, it must be remembered that these will not last forever. PD rights which were subject to prior approval will need to be commenced within 3 years following the granting of approval in order to save the development from being subject to any subsequent changes to PD rights.

Lauren is a Chartered Legal Executive in our Planning team.

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