Planning permission for commercial property

Planning permission is a particularly complex area of property law, especially when it comes to commercial properties. Here, we answer some of the most common questions that business owners may have if they are considering developing or extending their commercial property. 

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When do I need planning permission? 

The law requires that planning permission is sought for all forms of property development. However, there are certain exceptions to this rule, such as small changes to walls and fences below a certain height, and internal modifications (apart from listed buildings).

When does change of use require permission? 

Whether you are buying or leasing a commercial property, you may need to seek permission to use the building for a different purpose than it was originally intended. Many local authorities now have online planning portals that allow you to find the planning history for a building.  Building purposes are categorised into “use classes”; if the new purpose falls into the same use class as the existing purpose, you may not need to apply for planning permission. 

You should seek advice from a property professional on whether you will need to apply for permission to change the use of your commercial property, and how likely it is that permission will be granted. 

Do I need planning permission if I run my business from home? 

Using one room of your home for purposes such as a personal office or tutoring sessions will not generally require planning permission. However, this is on the condition that the character of the house must remain as a private dwelling. If your activities disturb other residents, through additional traffic and parking for example, this may require planning permission. 

Does an extension require planning permission? 

Not always. Minor extensions, or additional buildings within the boundaries of the original property, may not require planning permission.

However, especially on modern estates, there may be restrictions upon whether you can or cannot carry out minor extensions without the need for planning permission. It would be advisable to check the existing planning permission for your estate before proceeding. The rules surrounding planning permission for extensions can be quite complex, so it is best to take professional advice before you proceed. 

How do I apply for planning permission? 

Planning permission should be sought from the local planning authority, using the appropriate forms which should be available to download from their website. You will have to pay a fee when you submit the application; the amount will depend on what type of planning permission you are applying for. You will also need properly prepared plans drawn up for the application

Who can submit a planning application? 

Anyone can apply for planning permission, regardless of who owns the relevant land or buildings, although the legal owner of the site must be formally notified of the plans. You can apply for planning permission yourself, or if the application looks to be quite complex or contentious, you can enlist a chartered surveyor, architect, planning consultant or other appropriate professional  to handle the application on your behalf.

Should I discuss my proposals informally with the planning authority?

It always helps to have an informal discussion with someone at your local planning authority before you go ahead with your application, especially in complex cases. However, you should not take their advice as gospel; planning committees can choose to overrule their suggestions. 

Should I apply for outline or full planning permission?

Outline planning permission is applicable to new builds, and will only tell you whether a proposal would be accepted in principle, without having to submit more detailed plans. Full planning permission requires all aspects of the proposal to be submitted, including detailed drawings of the new build. Full planning permission can be sought by those who wish to save time, or those who have already been advised that their proposals are likely to be accepted. If the principle of development is unlikely to be an issue or the applicant proposes to carry out the development it is more cost effective and saves time overall to submit a full planning application in the first instance. However, when a landowner will be selling the site it is more difficult to justify the expense of a full application

What happens after my application is submitted?

When you submit your application, you will be advised that a decision will be made within eight weeks of the application being formally received by the local planning authority, although it may take considerably longer than this.

The local authority may grant permission subject to conditions. These will commonly be in relation to:

  • Details that need to be confirmed before the permission can be implemented, known as 'pre-commencement conditions'. For example, approval of the materials to be used.
  • Restrictions on the work needed to implement the permission. For example, the hours in which vehicles can access the construction site.
  • Restrictions on the use or operation of the development once complete. For example, any subsequent change-of-use.

The authority has to give reasons for the conditions when a decision is issued.

The local authority may, as a pre-condition to granting of the planning permission may impose planning obligations, also known as section 106 agreements (based on that section of The 1990 Town & Country Planning Act). These are private agreements made between local authorities and developers and can be attached to a planning permission to make acceptable development which would otherwise be unacceptable in planning terms. The land itself, rather than the person or organisation that develops the land, is bound by a section 106 agreement, something any future owners will need to take into account.

Once a decision has been reached, you will receive a document which tells you whether or not your application has been approved, along with an explanation of the committee’s reasons if your application has been refused. 

If permission is granted, the permission will specify how soon the development must begin and how any conditions are to be addressed. 

What is a CIL?

The Community Infrastructure Levy (CIL) is a planning charge, introduced by the Planning Act 2008 as a tool for local authorities in England and Wales to help deliver infrastructure to support the development of their area. It came into force on 6 April 2010 through the Community Infrastructure Levy Regulations 2010. Development may be liable for a charge under the CIL if your local planning authority has chosen to set a charge in its area. You will need to enquire with the local authority as to whether they have elected to charge a CIL on developments in their area.

If I have carried out a change of use or building works without obtaining planning permission, is there a time limit  in which the local authority  may to take action against me? 

If there has been a breach of planning control and the local planning authority (LPA) does not take planning enforcement action within the requisite time periods, then generally the right to do so is lost. The unauthorised development or use becomes lawful and immune from planning enforcement action.

Time limits for taking planning enforcement action: 

Planning enforcement action must, in general, be taken within either four or ten years, depending on the nature of the breach. There are, however, some circumstances in which planning enforcement action can be taken outside these time limits. 

Four year rule

No planning enforcement action can be taken after four years where the breach of planning control relates to:

  • Building, engineering, mining or other operations in, on, over or under land. The four year period starts with the date on which the operations were "substantially completed". 
  •  A change of use of any building, or any part of a building, to use as a single dwelling house.  

The four year period starts with the date of the breach. The unauthorised use will only be immune from planning enforcement action after four years if the unauthorised use was continuous.  

The four year rule applies where the change of use to a single dwelling house involves: 

  • Development without planning permission; or
  • Failure to comply with a condition or limitation attached to a planning permission.

The conversion of a building into separate self-contained flats is covered by the four year rule. The conversion of live/work accommodation (sui-generis use) into a single dwelling house is also covered by the four year rule.

Ten year rule

No planning enforcement action can be taken after ten years, starting with the date of the breach, in respect of all other breaches of planning control including:

  • Material change of use (other than a change of use to a single dwelling house, see four year rule)
  • Breach of condition (except a condition relating to use as a single dwelling house, see four year rule)

The breach of an occupancy condition on a dwelling house, such as a condition requiring the property to be occupied at all times by an agricultural worker, is subject to the ten year rule. The failure to comply with the occupancy condition does not result in a "change of use to use as a single dwelling house" as the property has always been a single dwelling house and therefore the four year rule does not apply (see four year rule). 

The unauthorised use will only be immune from planning enforcement action after ten years if the unauthorised use was continuous.

However it should be noted that where there has been deliberate concealment of a breach of planning control, local planning authorities may apply for a planning enforcement order to allow them to take action after the time limits set out above have expired.

Once planning permission has been granted, am I able to implement the consent immediately?

You are at liberty to implement the consent immediately, however you are advised to wait, as planning permissions are subject to challenge and can be revoked.

Under section 77 of the TCPA 1990 the Secretary of State  has powers to direct a local planning authority to refer an application to him for decision. This is known as a "called-in" application. 

This power is not used very often, usually if the planning issues raised are of more than local importance. Where an application has been called-in usually an inquiry will be held. In England,the inquiry procedure is set out in the Town and Country Planning (Inquiries Procedure) (England) Rules 2000. 

The High Court is the only authority that can formally identify a legal error in a planning inspector's or Secretary of State's decision and require that decision to be re-determined. Applications to challenge planning appeal decisions and decisions on called-in applications must be received by the Administrative Court within six weeks from the date of the decision.

So where the decision is made by the Secretary of State (either appeal or called-in application) the time period  for challenge is six weeks. 

Where a decision is made by a local planning authority, challenge can also be made under a judicial review procedure, the period in which a review must be made is now also six weeks (reduced from three months.) There are no other third party right of appeals, apart from through the statutory review or judicial review process.

It is therefore advisable to wait at least six weeks and ensure that your planning permission is not being challenged before commencing works.

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