by Michael Redman
The long-awaited revision of the General Development Order has now been completed and the new order is to become operative on December 5 1988. The revision considerably changes the format of the old order but there have been only limited changes of substance, the more important of which are the greater flexibility allowed in switching between different use classes and between different uses contemplated under one planning permission.
The General Development Order (GDO) grants planning permission automatically for certain types of development. If development is permitted by the GDO, it will not be necessary to make a planning application to carry out that development. In this sense the GDO acts as a deregulatory measure, and its reform is part of the Government’s policy to simplify the planning system and reduce the burden of control. The GDO also deals with the procedures which a planning authority should go through before granting planning permission. Although laid before Parliament, the new GDO is still subject to annulment if a negative resolution is passed by either House of Parliament.
Format
There are now two new statutory instruments covering the same ground as the previous GDO, issued in 1977 but subjected to a number of subsequent revisions. One statutory instrument, the Town and Country Planning (Applications) Regulations 1988 (SI No 1812) deals with the form of the application; the other, the Town and Country Planning General Development Order 1988 (SI No 1813) deals with the regulations permitting development as well as other matters such as planning application notices, the various consultations to be made and the determination of applications. Circular 22/80 General Development Order Consolidation explains the new regulations and gives advice on the handling of planning applications.
The division of the subject-matter into two orders, it has to be said, is not particularly helpful. It would have been better for the applications regulations to have dealt with all the matters concerning the submission and determination of the application, leaving the GDO to concentrate on permitted development rights. Furthermore, the opportunity has been lost in the new applications regulations of having a standardised planning application form applicable to the whole country, a step which would have meant that it would have been more easily available and more familiar to most practitioners than the forms issued by individual planning authorities. On the credit side, however, the form of the notices has been simplified, and it would be helpful if the statutory provision for giving these notices could also be simplified in due course. “Bad neighbour” notices must now be published for mineral working deposits, sports halls, stadia and crematoria.
The presentation of permitted development rights in the GDO has also changed, but it is questionable whether the new form is easier to follow than the old. The various classifications of permitted development are divided into parts and then subdivided into classes. Under the particular classes, there are attached exclusions, conditions and interpretative clauses — Part 4, for example, covers temporary buildings and uses. Class A of Part 4 covers construction works with clause A1 excluding mining operations and operations not enjoying the benefit of planning. Clause A2 contains conditions dealing with removal of the plant and reinstatement of land.
The previous GDO had to be supplemented by Special Development Orders restricting permitted development rights in particular areas such as national parks, areas of outstanding natural beauty, conservation areas and certain countryside areas. Under the new GDO these restrictions are embodied within the terms of the order itself. In such areas there are restrictions on permitted development rights in respect of dwelling-houses, industrial or warehouse buildings, development by statutory undertakers and telecommunication development. Certain areas are also specified as being subject to restrictions in respect of permitted agricultural and forestry development.
Consultations
Some changes have been made to the provisions relating to consultations and directions for dealing with planning applications, and two of these changes are significant. The first is that the local highway authority can no longer direct the local planning authority to refuse an application affecting areas of a non-trunk road. Instead, the local highway authority (if not also the planning authority) must be consulted in respect of such an application. The second significant change is only to require consultation with the Ministry of Agriculture, Fisheries and Food where the development would conflict with the development plan and involve the loss of not less than 20 hectares of Grades 1, 2 or 3a agricultural land or would be likely to lead to such loss: (previously the Ministry were to be consulted about the loss of 4 hectares of agricultural land in the case of proposals conflicting with the development plan).
Changes of use
The most significant change in the new GDO is to permit further changes to take place between different use classes. A use falling within Use Class B2 (general industrial) can now be changed to a use falling within Use Class B1 (business including light industrial) without any limitation imposed on the floor area concerned. However, a limitation on floor area still applies to changes of use involving Use Class B8 (storage and distribution). Changes of use are still permitted from B8 to B1 and from B1 or B2 to B8 where the total amount of floorspace used for the purposes of the undertaking does not exceed 235 m2.
The changes of use permitted in respect of shopping areas have been widened. Changes introduced in 1987 permitted food and drink uses (Use Class A3) and motor vehicle salerooms to be changed to shops (Use Class A1) without the need for planning permission. Food and drink uses may now also be changed to financial and professional service uses (Use Class A2) without planning permission. Similarly, financial and professional service uses may be changed to shop uses, but only where the premises have a display window at the ground-floor level. It should be noted that there are no permitted development rights to change shop uses to other uses.
A planning permission may now allow the switching of various uses permitted without the need for a fresh permission on the implementation of each different use. Before the new GDO, a planning permission could permit alternative uses but, once implemented, a new permission was necessary to cover any subsequent change of use. Now a planning permission may give the developer greater flexibility by listing a number of alternative uses which can be implemented in turn within 10 years of the grant of planning permission, provided that there is nothing in the planning permission to restrict such rights.
Dwelling-houses
The permitted development rights applying to dwelling-houses have been revised, the most important change being to limit attic extensions being added under the provision relating to dormer windows. The new works cannot now extend beyond the plane of any existing roof slope which fronts any highway. Roof extensions and external cladding are not permitted in special areas such as conservation areas. Patios and swimming-pools are now approved development. Buildings within 5 m of dwelling-houses will now be treated as part of the original dwelling-house, whether or not they are garages. Permitted development rights have been liberalised in front of the building where the existing building is more than 20 m away from the highway. Freestanding buildings over 10 m3 are not permitted under the GDO if the building in question is a listed building or in a special area. (Nor can gates, fences or walls be erected within the curtilage of a listed building under the new GDO.)
Agricultural land
Permitted development rights exist for operations “reasonably necessary” for agricultural purposes within an agricultural unit subject to various conditions. These rights have been cut down by excluding the construction of buildings or structures for the accommodation of livestock or for the storage of slurry or sewage sludge within 400 m of certain protected non-agricultural buildings where people will live or work. Nor may any building erected under the GDO be used for such purposes (livestock, slurry or sludge) for a period of five years from its contruction if situated within 400 m of a protected building, though it does appear that such a building may be used for such activities after five years from its construction.
The opportunity has been taken to make a number of revisions to particular classes of permitted development. Accordingly, permitted development rights in respect of airports have been revised following the privatisation of the British Airports Authority and have been widened in the case of water authorities. Extensive revisions (including restoration obligations) have also been made in respect of the rights of mineral undertakers and the British Coal Corporation. The special class of war-damaged buildings has been abolished, and several other changes have been made.
Restriction of rights
Before a developer relies on rights permitted under the GDO, he should check that those rights have not been restricted in any way: the GDO itself restricts the rights in some special areas such as national parks, for example. Other areas may be subject to a restriction under Article 4 of the GDO restricting permitted development rights — such Article 4 directions are not uncommon in conservation areas. Furthermore, the particular undertaking may be operating under a planning permission which has a condition in force restricting the operation of GDO rights: in such a case it will be necessary for a planning application to be made to have the condition removed. Such an application should be made in writing and give sufficient information to enable the authority to identify the previous grant of planning permission and the condition in question. If the local planning authority refuses to lift the condition, the applicant may appeal against the decision and take comfort in Government policy that there is a general presumption against limiting GDO rights in a particular case.
Conclusion
Unlike the Use Classes Order, which was completely revised last year, only a partial revision has been made to the GDO. Nevertheless the greater liberalisation for changes of use is likely to be welcomed by the property industry. Perhaps the opportunity should also have been taken to extend GDO rights further in the case of commercial and industrial development not located in any sensitive or residential area. It may also be asked why householders should now have to apply for planning permission for extensive attic extensions in areas which have not been designated as special areas and are therefore not likely to be particularly sensitive in environmental terms. In this connection, the new White Paper Releasing Enterprise says that the Government intends to consult on proposals to give GDO rights to make small extensions and developments within the curtilage of hotels, restaurants and public houses, and at the rear of offices, shops, schools and nursing homes. The Government is also looking into the scope for granting permitted development rights for a number of environmentally acceptable uses of open land and existing buildings, compatible with rural areas.