Whilst the conversion and development of buildings under permitted development rights can be a valuable way of boosting housing supply, due diligence in respect of the planning history for both the land use and buildings on the development site is essential.

In this insight, we explore the recent appeal to the Planning Inspectorate for the refusal of a Lawful Development Certificate (LDC) by Mole Valley District Council and what this means for registered providers (RPs) below.

The background

The Appellant applied for an LDC for proposed lawful use in respect of a single storey extension to a dwelling falling under permitted development rights. Planning permission for the dwelling was granted in 1983, however, it is not in dispute that the dwelling was built in breach of planning conditions for that permission. The Council had not taken any enforcement action for the breach of condition and as such, the dwelling itself. The issue in this appeal was whether the planning history of the dwelling meant that the dwelling did not benefit from permitted development rights.

Conditions at the heart of the permission

Development as a whole will be considered unlawful if the condition breached goes to the heart of the planning permission. The Inspector made particular reference to a planting scheme being required before the development began. It was determined that the dwelling was situated in an Area of Outstanding Natural Beauty and as such this condition “penetrates the heart of the 1983 permission.”  This is particularly important as the 1983 permission contained a condition removing permitted development rights; the inspector deemed that this condition no longer held any relevance as the development as a whole was unauthorised and hence constructed outside the scope of the 1983 permission.

Permitted Development Rights for unlawful dwellings

The Inspector further considered Article 3(5) of the Town and Country Planning 1990 (General Permitted Development) Order 2015, which provides that unlawful development cannot benefit from permitted development rights. The inspector determined that the development was unauthorised and as such did not benefit from permitted development rights

Some may consider that there could be doubt as to the legal basis for this decision. Where operational development or a change of use becomes immune from enforcement (after the requisite 4 for 10 year period elapses), the development is deemed to be lawful and a certificate can be issued to this effect under Section 191 Town and Country Planning Act 1990. The Inspector, at paragraph 20 of his decision notice, acknowledges that the dwelling “seemingly acquired immunity” from enforcement. As such it would appear that it is capable of benefitting from permitted development rights. It is currently unknown as to whether the applicant will seek to appeal the Inspector’s decision.

What does this mean for RPs?

If you are intending on relying on permitted development rights in the course of your development (for example, office to residential conversion), it is important to undertake a thorough due diligence in respect of the planning history for both the land use and buildings on the development site.

It is not sufficient to merely know that the site benefits from planning permission. Particular care needs to be taken to ensure that the planning conditions have all been implemented and where available copies of the relevant planning discharges are to be provided in the course of acquisition.

How can Capsticks help?

Our Housing & Regeneration team, one of the largest in the country, advises on all types of development transactions from forward funded schemes, section 106 developments and stock rationalisations to plot sales and general asset management work. We are experts on all aspects of planning law including s106 agreements, CIL advice, planning appeals, Compulsory Purchase Orders and all general planning law matters.

If you have any queries around what's discussed in this article, and the impact on your organisation, please speak to Jennifer Eng or any of your contacts at Capsticks to find out more about how we can help.