What to do When Planning Permission has Not Been Obtained

The Town and Country Planning Act 1990 sets out the rules relating to the development of land, that is to say any additions, alterations or changes of use. Such works will often require an application for planning permission to be made to the local authority.

Unfortunately people often don’t realise that a particular alteration or change of use will require permission, or will want to avoid the time and hassle of making an application and so will fail to follow the proper process. This will most likely come to light when the property sold and will need to be remedied. There are a number of remedies available depending on the circumstances.

What Sort of Works Actually Require Planning Permission?

Works classed as “development” under the Town and Country Planning Act 1990 require planning permission. These works include the carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change in the use of any buildings or other land.

Building operations are defined as:

(a) demolition of buildings;

(b) rebuilding;

(c) structural alterations of or additions to buildings; and

(d) other operations normally undertaken by a person carrying on business as a builder.

Maintenance, improvement or building operation which either only affect the interior or do not materially affect the external appearance of a building are not classed as development and do not require permission, though the use of a building as two or more dwellings where it was previously a single dwelling does constitute a material change of use and requires permission.

Works that are Classed as Permitted Development

Permitted development is the term given to works which technically require planning permission but for which permission is deemed to be granted under a general permitted development order. kitchen-extensionThis means that no application for permission has to be made or written consent obtained.

The precise rules are set out in the Town and Country Planning (General Permitted Development) Order 1995 as amended by the Town and Country Planning (General Permitted Development) (Amendment) (No. 2) (England) Order 2008. The rules are quite long winded but basically an addition or alteration would be permitted where it is at the side or rear of the house (not facing onto a road) and is less than 15% (10% for terraced houses) the size of the original house in terms of volume. Note that if an extension has already been built which is, say 5% of the size of the original house then any new extension must be no more than 10% (5% for terraced houses) of the original house, the idea being that the size of any extensions added together cannot exceed 15% or 10%.

In addition an extension must not cover more than 50% of the floor area of the land, not counting the original house (i.e. it must not take up more than 50% of the garden) and it must not be any taller than the roof of the original house.

Regardless of the size of the original house no extension or addition greater in volume than 115 cubic metres can be classed as permitted development.

Most porches, conservatories and small extensions therefore do not require a specific application for planning permission to be made.

It should be noted that if the property is a listed building or is in a conservation order than planning permission will most likely still be required.

What are the Risks of Not Having Planning Permission?

Where work for which planning permission was required is carried out without permission being obtained the local authority can take enforcement action to force the owner of the property for the time being (which may not be the person that owned the property at the time the work was done) to take whatever actions necessary to remedy the breach of planning law.

This may simply mean making or application for permission, or it may mean removing or altering an offending structure or refraining from using the property for an unlawful purpose. Initially the local authority will contact the property owner to ask him to remedy the breach but, if he fails to do so, they will serve an enforcement notice. This will give the owner 6 months to comply and failure to do so will result in the local authority carrying out the work themselves at the owner’s expense as well as issuing a fine of £25,000. Failure to pay the fine or the cost of the work can result in imprisonment.

The Four Year Rule

Under s171B of the Town and Country Planning Act 1990, the local authority can only take enforcement action within four years of completion of any work which has been carried out without permission. If it fails to take action within four years then it loses its right to do so and though this does not technically render the wonder lawful, it is for all practical purposes.

The four year rule applies to alterations and additions and changes of use to a single dwelling house. If the work involves a change of use to something other than a single dwelling house then the time limit for enforcement action is ten years.

Lack of Planning Permission Indemnity Insurance

The most common solution to a situation where planning permission should have been obtained but was not is to obtain a legal indemnity insurance policy. This is a type of insurance policy designed specifically to provide cover against legal risks and is often used as an alternative to actually correcting the problem, which can often be much more expensive and time consuming. The premium, which depending on the risk in question might range from £30 up to as much as perhaps £500, is payable just once and the cover usually lasts for the life of the property and automatically transfers to successors if the property is transferred. It will generally also protect any mortgagee.

Lack of planning permission indemnity insurance will usually cost around £60 though it will vary from insurer to insurer. In the event that the local authority takes enforcement action in an attempt to force the owner of a property to restore it to its former condition or take some action in order to remedy a breach of planning law a claim can be made on the policy in respect of the costs of defending or complying with the action and also any resulting loss of value to the property (for example if an extension is ordered to be removed).

Certain statements will need to be made to the insurer when the policy is obtained and if they are made falsely then the policy will be invalidated. It will usually be necessary for example to confirm that the work in question was completed more 12 months previously (or 4 years if the work was the construction of the property itself) and that the property has for at least the last 12 months been used as a residential dwelling. It is also important that there has been no contact with or by the local authority in respect of the work within the past 3 months or longer. Once the cover is in place the local authority must not be contacted by or on behalf of the policyholder otherwise it will be invalidated.

The cover will need to be arranged by a solicitor or licensed conveyancer as the insurers will not deal with a lay person. It can usually be arranged online very quickly and will generally be acceptable to mortgage lenders, making it the simplest and almost certainly the cheapest solution. It is generally accepted that the seller will bear the cost of the premium, which will be paid from the proceeds of sale, though there is nothing to prevent the purchaser paying.

Indemnity insurance is not appropriate where the purchaser intends to carry out works following completion for which planning permission will be required as they will need to approach the local authority about the new works, which would be likely to bring the insured works to their attention, thereby invalidating the policy.

Retrospective Planning Permission Applications

Where indemnity insurance is inappropriate or cannot be obtained, and the council’s right to take enforcement action is not time barred, it may be necessary to make a retrospective application for planning permission. The council are obliged to grant permission retrospectively where they would have granted permission had it been applied for before the work was carried out. The process can be quite slow, perhaps eight weeks if there are no problems, though of course it will depend on the nature of the work that has been done.

There will be a fee payable to the local authority and of course there is always a risk that permission will be refused. If it is, the local authority may proceed to take enforcement action, therefore a retrospective application should only be made either as a last resort or where the applicant is very confident that he will be successful.

Photo by Bryn Pinzgauer

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