Interpreting Planning Consents and when they lapse (Dwellings and HMO'S)V1-JW-20160806

SUMMARY

  • If plans referred to in the planning permission show items for which planning permission is not needed e.g. internal works, then permission is not necessarily granted for these despite them being shown on the plans.
  • A planning permission normally consists of the permission document itself, the plans and the reasons. The planning application itself will be incorporated only if it is appropriately referred to in the decision notice.
  • However, if there is ambiguity then it is permissible to refer to the planning application even if it is not incorporated in the decision.
  • The extent of the land covered by a planning permission will normally be shown on the site plan. Thus if a permission permits residential use this will extend to any subsequent extension built within the area covered by the original permission.
  • The plans or drawings themselves are part of the permission. These will be plans listed in the decision notice usually.
  • Permission granted for use as a dwelling includes use as a small HMO within User Class C4 at least where the permission was granted before the 6th April 2010. However, if the property is first used as a single dwelling following the grant of the permission, the permission itself will not cover subsequent use as a small HMO (unless it is a dual use permission allowing for both). A further planning permission will be needed if the property is located in an area where an Article 4 Direction for HMOs is in force.
  • Loss of existing use rights occurs where there is a material or radical change of use. A change from a single dwelling to an HMO will lead to loss of attached existing use rights. Likewise, if a planning permission for different use is implemented.
  • Planning permission for the use of a new building is implicitly granted for the use for which it is designed, unless the permission itself spells out the permitted use.

Introduction

Planning consents can raise particular issues of interpretation. Case law gives some of the answers and a 2012 case R (Peel Land and Property Investments plc) v Hyndburn Borough Council and others gives added clarification. In this note we look in detail particularly at interpreting residential planning permissions and when they lapse, as well as the ending of existing use rights e.g. the right to use accommodation as a house in multiple occupation (HMO).

Planning permission is not always needed e.g. for internal works but where external works are involved (which materially affect the external appearance of a property) then permission is needed. As a result, where permission is applied for, works for which permission may not be required can be shown on the accompanying plans. Where such works are shown the question could arise as to whether or not the internal works do or do not form part of the permission.

Questions can arise as to whether or not the application itself, or other accompanying documents, are incorporated into and form part of the permission itself.

There can be arguments over what a planning permission means and therefore what documents can be looked at in arriving at a decision on this issue, where there is ambiguity. What does permission for a "dwelling" mean?

Another issue is whether a planning permission can "open a new planning chapter", putting an end to the previous permitted use of premises.

Another question is whether the effect of a new permission overrides an earlier permission and therefore do away with any conditions attached to the earlier permission or any accompanying planning obligations under Section 106.

Issues can also arise as to the extent of the area of land to which the permission relates and what happens when extensions are built. This is determined from the plan identifying the site submitted with the application.

In all of this, it can make a difference whether the planning permission question is an outline permission or full permission. This guide tries to give some answers to what can be thorny problems.

Changes of use involved with building works

Planning permission is not just needed for building works but also where there is a material change of use. Legislation provides that where planning permission is granted for the erection of a building, the permission itself may specify the purposes for which the building can be used. However, if no purpose is specified then the permission is to be interpreted as including permission not just to carry out the building works but also to use the building for the purpose for which it is designed - see below.

Interpretation of full planning permissions

The function of the plans and drawings submitted as part of the planning application is to describe (and therefore particularise in layout form) the proposed development.

The application itself has to contain a description of the proposed development. This may be amended by the planners.

The rules for interpreting a full permission are as follows:-

  • The general rule of interpretation is that if the permission document itself is clear, unambiguous and valid on the face of it you can only look at the planning permission itself, including any conditions and the express reasons set out for those conditions.
  • This rule excludes reference to the application itself and other supporting documentation, unless the planning permission incorporates the application by referring to it. Where this applies the application is treated as becoming part of the permission document itself.
  • For incorporation of the application (or any other document) to take place more is required than a mere reference to the application appearing on the face of the permission. There are no definitive words but the statement such as "In accordance with the plans and application" or "on the terms of the application". Such words appearing in the operative part of the permission dealing with the development and the terms on which permission is granted mean that the application from is to be incorporated.
  • Even if the application is not incorporated, there is ambiguity in the wording of the permission it is then permissible to look at external material including the application form to try to resolve the ambiguity.
  • The plans and drawings describing the building works are as much a part of the description of what has been permitted as the permission decision itself. The grant of full planning permission for building works is incomplete without approved plans and drawings showing the detail of what has been permitted.
  • In the absence of any other indication, the plans and drawings forming part of the permission will be the plans listed in the application for permission. However, as is often the case, if the planning authority do not wish to approve the plans submitted with the application, but instead want to approve amended plans then a statement to that effect will be included in the decision notice. In the absence of such a statement the grant of full planning permission will approve the application drawings.

Outline applications

The position is different in the case of outline applications in regard to plans and drawings. Outline permissions are not complete and self-contained in relation to the description of the development permitted because detail is reserved for a later appeal. The plans and drawings can be looked at but are not necessarily comprehensive because further details will be approved separately.

New Build - Alterations to existing dwellings

A distinction can be drawn between an application for permission for a new dwelling and one to alter an existing one. Not only is it a matter of the building work which are permitted but also the use of the premises. The principles here are:

  • Permission to construct a new dwelling on non-residential land will carry with it permission to use the new building for residential purposes under the legislation (subject to any conditions or other qualifications set out in the permission itself or any Section 106 Agreement). In effect there is a built in application for a change of use.
  • The extent of the land covered by the implicit permission for a change of use will normally be established by looking at the site as defined on the site plan submitted with the application.
  • That part of the site not built on can be used for purposes ancillary to the dwelling unless there is some obvious restriction shown on the permission itself. Therefore, the site boundary shown on the plans defines the area of this new use.
  • When it comes to an existing dwelling and an application is made to alter or extend it the residential curtilage already exists. There is not necessarily any new use of land involved; nor any extension of the existing curtilage.
  • If there is an extension to the existing curtilage in any case this will depend on documents submitted in question i.e. a plan showing a larger curtilage. Whether any resulting planning permission grants consent for a larger area than before to be used for residential purposes ancillary to the dwelling house depends on looking at the application form and the drawings.
  • Sometimes it will be obvious that the extension to an existing dwelling involves a change of use of land beyond the original residential site. This will be the case where an extension involves building on land beyond the original site or where permission is expressly sought and granted for the change of use for additional land. Otherwise, it will be confined to the original approved residential curtilage. One had to look at the site plans involved.
  • It follows that if the extension is confined within the original area in the original planning permission, i.e. the existing site location, then there is existing established residential use anyway and no change of use is involved. The same should apply if you are bringing a disused attic or basement into use as part of the same premises. It would be different however if you were creating a separate self contained flat as this is a separate planning unit so permission would be required as this involves the sub division of the property.

Design and Access Statements

Applications for full planning permission now have to be accompanied by design and access statements. The same principles apply so this will only be incorporated in the permission if it is referred to in the required terms to make it part of the permission.

Other documents

Normally documents such as planning officer's reports, correspondence or internal notes will be disregarded in deciding on the meaning of planning permission.

What happens if the plans go beyond the subject of the planning application

The basic principle is that it does not follow that even though works may be shown on the accompanying plans for example that the permission properly interpreted includes all of these works, because planning permission may not be required for them anyway. The central function of the plans is to show the detail of what permission is being sought for in the planning application.

If other works are shown on the plans beyond the scope of those described in the application it does not necessarily mean that they form part of the application itself or, indeed the permission. They may be there simply to illustrate the whole scheme of works and only one part of them (such as the external parts) may in reality be the subject of the application. The question then is whether, for example, internal works are really part of the works for which permission is applied for.

You have to ask what alteration works are contemplated which might require permission and then see whether they do. Thus, if there are alteration works which include both internal and external elements then it cannot be said that those works affect only the interior of the property and therefore do not require permission. There is then an argument that not much, if any, attention needs to be given to the internal parts because standing alone they would not need planning permission. Whether in any given case the internal works are to be treated as forming part of the larger scheme of works which includes external works is a question of fact and degree and judgment. However, the key issue may, in reality, be what planning the permission is actually granted for. You have to look at the description of the approval in the permission itself. Therefore, where it is plain that the internal works applied for as part of the scheme do not themselves constitute development, the application should not be read as seeking permission nor should the permission be interpreted as granting permission for the internal works as well. However, where it is plain that the application form and the permission refer both to external and internal work, so that the view has been taken by the applicant and the local authority that both internal and external works require permission, normally the permission would cover both kinds of works. Therefore it very much depends on the approach taken.

Without more you cannot therefore argue that whatever the wording of the application it should be treated as being an application for permission for all the works that require or might require permission.

It may be clear from the application itself and the wording of the permission that the permission was simply not sought for particular works such as internal works irrespective of whether it should have been. Furthermore the fact that they are shown on the plans is not decisive.

Permissions granted for use as a "dwelling"

Prior to the changes to the Use Classes Order effective from 6th April 2010 introducing a new Class C4 for small HMOs (between 3 and 6 unrelated individuals living together) shared houses fell within the old definition of Class C3 so long as the unrelated individuals (normally up to six in number) live together as a "single household" (applying the old definition of household as set out in the decision of the Court of Appeal in Barnes and subsequent cases and not the definition applicable under the Housing Act 2004). The question may therefore arise if planning permission is granted for a "dwelling" whether or not this extends to use as a small HMO within the new Class C4. This may well arise in the case of pre 6th April 2010 applications particularly if the permission was granted for a "dwelling" prior to that date but not actually implemented until after it. Obviously, in such a case the permission for the erection of the dwelling may incorporate an implied permission for a change of use.

Under the old style Class C3, in force prior to the 6th April 2010, the dwelling could be used by a single person, a family without limited numbers, or a group of unrelated individuals (normally up to six in number) living together as a single household. Often on the face of the permission the reference will be to a "dwelling".

First of all you have to see whether in any given case a material change of use is necessarily entailed by the application for the building operations concerned. Obviously, it will be if the new house is to be built on non-residential land. A simple extension alteration to an existing house will not involve such a change of use. This assumes that the extensions or alterations are within the existing residential curtilage. The local planning authority can, of course, impose restrictions by means of a condition or require a Section 106 Agreement.

Where one is relying on the implicit consent for change of use because a material change of use is involved (e.g. non-residential to residential land) the implicit permission for change of use is granted "to use the building for the purpose for which it is designed". However, "designed" in this context does not mean architectural design for a particular use but rather "intended to be used".

In any event, larger HMOs (normally over six in number) are a "sui generis" use and would be viewed separately. The rule relating to these have not changed (except that small bedsits with between 3 and 6 occupiers are now within Class C4 - Small HMOs).

The key point is that before the changes to the Use Classes Order effective from 6th April 2010 without planning permission a single dwelling house e.g. occupied by a family could be changed to a shared house occupied by say a group of students living together (normally not exceeding six in number) without the need for planning permission. By virtue of both cases being in the same Use Class no material change of use would be involved if this was changed.

There is a ministerial planning decision which suggests that (in the absence of any limitation on the scope of the permission such as the wording of the permission itself, or a condition, or a planning agreement entered into alongside the grant of the permission) a permission granted before the 6th April 2010 for a "dwelling" could be used for any purpose within Use Class C3.

Thus, the permission would extend to use by a group of persons living together as a single household with normally not more than six in number.

Clearly, there is no problem if this permission was taken up and occupation by such a group started prior to 6th April 2010 but what if the permission was granted before that date, but not implemented until after it? There is a strong argument to say that in such a situation as Class C3 at the date of the grant of the permission would have included such use by a group living as a single household then the property can still be first used for this purpose after the 6th April 2010. This would be the case even though the Use Classes Order changed on that date introducing the new Class C4.

Where it gets more difficult is where the planning application is made before the 6th April 2010 but granted after that date referring to the property as a dwelling. There is a contrary argument that it might be held that the description of a dwelling would only apply to use within the revised Class C3; thus excluding shared use by a group living as a single household. This is, however, complicated by the fact that the statutory definition of Class C4 uses the word "dwelling house".

If there is a material change of use after 6th April 2010 from a single dwelling (new C3) to small HMO (new Class C4). then different consideration can apply depending on the date of the change of use and whether or not permitted development rights are in existence (in some areas they will be disapplied by an Article 4 Direction).

Loss of Residential use

Clearly, if a property has been built or otherwise provided physical construction there should be a planning consent for this. Many dwellings were, however, built prior to the inception of the current Town & Country Planning Legislation. Any continuing use as at 1st July 1948 is a lawful use. The use of premises may have changed subsequently without planning permission being obtained. The question can then arise whether the previous use (assuming it was lawful) is lost.

An existing use can be lost if there is a material change of use. If land is used lawfully for one purpose, e.g. as a single dwelling and then a material change of use occurs, e.g. to a house in multiple occupation resumption of the original use as a single dwelling will constitute a further material change of use. Normally, the change back needs planning permission. There may, however, have been permitted development rights in place so the use could be changed without express planning permission being needed.

There is a 10 year time limit for taking enforcement action. After that unless enforcement action is taken the use becomes lawful.

The other way in which existing use can be lost is by implementing a planning permission involving a material change of use. This will lead to the loss of any existing use rights.

This is another way of saying that existing use rights will be lost by creating a new planning unit. In effect, this is a material change of use where the new use is inconsistent with the previous existing use.

New planning history

Whenever a new planning permission is implemented, a new chapter of the planning history of the site is opened and exiting rights may well be given up as a result of adopting the new permission.

A new chapter would normally only open on the erection of a new building but it can arise on a material change of use, for example a change from a single dwelling house to a house in multiple occupation. There has to be a "radical" change of use. However, where there is an established use, then carrying out the development does not necessarily terminate or remove the established use. This only occurs if the new use is inconsistent with the established use. The opening of a new planning chapter not only removes any prior rights but also any burdens imposed, e.g. by conditions or a Section 106 Agreement.

Loss of established use rights

How and when established use rights can be lost may also arise where there are existing use rights such as those acquired by long use of at least 10 years – or more than four years in the case of the use of premises as a single dwelling or flat.

It also arises where a use which has existed continuously since 1st July 1948 changes to something else.

Although the Courts have referred to a new chapter being opened in the planning history this may be more relevant to building operations rather than changes of use although Case law makes it clear that it does apply to changes of use. An existing use is lost if there is a material change of use. If land used lawfully for one purpose but a material change of use occurs resumption of the original use will be a material change of use which in itself needs planning permission (unless permitted development rights apply)

Nevertheless case law refers to a new chapter in the planning history of a property being opened if there is a "radical" change of use so there is some inconsistency in the approaches taken by the Council in this situation.

Where this can be particularly relevant is in relation to change in levels of occupancy in HMOs. Normally the cut-off point is 6 people but use of a Class C4 HMO by more than 6 may not constitute a material change of use.

It may be possible to reconcile the two approaches of a material change of use and the need for there to be a "radical" change in use to open a new chapter in the planning history by saying that, in this context, "material" and "radical" are different ways of saying the same things. Perhaps numbers are not always as important as you may think they would be. We can only tell when these have been decisions by the Planning Inspectorate or Courts to clarify this issue. The reality is that if there are 9 or more in an HMO the property will in all likelihood be treated as sui generis use.

For instance, if a property is a sui generis HMO (i.e. normally over 6 occupants) it may not matter if the number living in the HMO changes between 7 & 8 or perhaps even more. On the other hand, if the property is within C4 it may also not matter if you have 6, 7 or 8 in the property so long as no material change of use can be said to have occurred.

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