Permitted Development Orders

December 23rd, 2019

New World Payphones Ltd v Westminster City Council (2019) EWCA Civ 2250 raised important questions concerning the proper approach to the scope of development covered by a permitted development order.

Hickinbottom LJ observed that the “use” of a building or land is an important planning concept, as is the related concept of “purpose”, i.e. the use for which the building or land is intended. Where planning permission is granted for the erection of a building, the grant of permission may specify the purposes for which the building may be used; and, if no purpose is specified, then the permission is construed as including permission to use the building for the purpose for which it is designed. “Purpose” in this context is not subjective – it does not depend upon what is in the mind of the developer – it is the use for which the (usually, proposed) development, looked at objectively, is intended. Development may have more than one purpose, and thus be “mixed use”.

By Section 58(1)(a) of the Town and Country Planning Act 1990, planning permission may be granted for classes of development by a Development Order made by the Secretary of State. The Town and Country Planning Act (General Permitted Development) (England) Order 2015 (SI 2015 No 596) (“the GPDO”) is the principal Development Order made pursuant to that statutory power. By Article 3(1) and (2) of the GPDO, subject to any relevant specified exception, limitation or condition, planning permission is granted for classes of development described as permitted development in Schedule 2 to the Order.

Where a proposed development falls within one of the GPDO classes, the principle of development is not in issue.  However, that is not in itself necessarily determinative of an application, because, to fall within the scope of permitted development within the GPDO, development has also to comply with any specified “exception, limitation or condition” which applies to the particular class.  Where development does not satisfy the class definition and conditions so as to fall within a class of permitted development, then the GPDO does not apply; although, of course, the developer can still apply for express planning permission in the usual way. However, in considering such an application, the consideration of the local planning authority will not be restricted to consideration of whether the class conditions are satisfied. The application will need to satisfy all of the planning requirements for an express grant, and will be the subject of the full rigour of the planning application regime to that end.

To take the advantage of being permitted development, the proposed development must fall entirely within the scope of the GPDO. Mixed use development cannot take advantage of that benefit – because, if it were to be able to do so, the GPDO could and would be used for permitting development for something outside its scope, i.e. the part of the development that does not fall with a permitted development class. The true construction of the GPDO means that, as a general proposition, to be “permitted development”, the whole of any development must fall within the scope of a class in Schedule 2 of the GPDO, by falling within the relevant definition and satisfying any express restrictions as to “exceptions, conditions and limitations”; and therefore a mixed use or dual purpose development, where one use or purpose is outside the scope of the class, cannot generally be permitted development.

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