How can a planning condition remove your permitted development rights?
When planning permission was first granted to build your house, or when permission was granted to extend your house, the council may have imposed a planning condition removing your permitted development rights, so that you will need planning permission even for very small extensions and minor alterations.
Most houses in England were built many moons ago – there was no such thing as planning conditions when Victorian terraces were built. However, if you house was built in the post-war period (i.e. since 1945), it is possible that there is a planning condition removing your permitted development rights. It is especially common on houses built (or extended) since the 1970s.
What are householder permitted development rights?
Permitted development rights are a form of blanket planning permission granted nationwide for certain types of development. It is a form of planning permission granted not by the council following receipt and consideration of a planning application, but by the government through an act of parliament – the General Permitted Development Order (GPDO).
Under the GPDO, you can extend to the front, side and rear, and also at roof level, without needing planning permission, as long as your extension complies with strict criteria.
Virtually every house in England and Wales has these permitted development rights and each year thousands of householders happily expand their living space without needing planning permission.
Is it fair to use conditions to remove permitted development rights?
It is usually unfair – why shouldn’t new houses enjoy the same rights as all others? In some cases, it is justified. If you are building a new house on a very small site, very close to neighbours, it may be appropriate that more control is exercised over how you extend in future.
However, in a majority of cases, it is not justified.
That said, the fact that a condition appears unreasonable does not mean that a council will automatically agree to remove it. In practice, councils will often seek to retain control where they consider there to be any planning justification for doing so, even where that justification is relatively weak.
What does the government say?
The National Planning Policy Framework (the NPPF), the granddaddy of planning policies, states that (paragraph 52):
“…planning conditions should not be used to restrict national permitted development rights unless there is clear justification to do so.”
The government’s national Planning Practice Guidance (the PPG) goes further, says that:
“Conditions restricting the future use of permitted development rights or changes of use may not pass the test of reasonableness or necessity.”
These are strong statements of policy, but they still require careful interpretation and application to the specific circumstances of your property. The key issue is whether the council can point to a clear, site-specific reason for having imposed the condition in the first place.
Is there anything I can do?
If there are no unusual, site-specific circumstances justifying the removal of permitted development rights from your house, you can apply to the local council for the condition to be removed.
In straightforward cases, this can be relatively simple. However, in many cases the council will argue that the condition remains necessary in order to control the scale, design or impact of future extensions.
Applications can and do get refused where the council considers that removing the condition would lead to unacceptable development, even if no specific extension is currently proposed.
We recently achieved just such an outcome for a client at Poulton Avenue in the London Borough of Sutton. His house was subject to a planning condition removing his permitted development rights. He wanted to build dormer roof extensions as part of a loft conversion. Because of the condition, he dutifully applied for full planning permission and was refused by the council. We appealed that decision but we also applied separately to have the offending condition removed, so that the proposal would become permitted development and he wouldn’t need permission at all. We were delighted when the council granted permission and removed the condition.
Cases like this often turn on how the original condition is interpreted, whether it meets the legal tests for planning conditions, and how convincingly the case for its removal is presented.
If the council refuses to remove the condition, we can submit a planning appeal.
We can also challenge conditions that are not properly worded or are ambiguous and may therefore be considered unreasonable or unenforceable.
If you are unsure whether your condition is likely to be removed, it is usually worth getting advice before submitting an application, as the strategy can make a significant difference to the outcome.
If your property has a condition removing permitted development rights, contact us for some free advice on whether we can help you get it removed.
