WHY IS THE DEFINITION OF ‘DEVELOPMENT’ IMPORTANT FOR PLANNING?
In order to determine whether planning permission is required for proposed works or changes of use, the first thing to establish is whether the proposals fall within the definition of ‘Development’ for the purposes of planning.
SECTION 55 OF THE TOWN AND COUNTRY PLANNING ACT 1990
The term ‘Development’ is defined within Section 55 of the Town and Country Planning Act 1990 (as amended) as:
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 building or other land
‘Building operations’ under Section 55 include:
- demolition of buildings;
- structural alterations of or additions to buildings; and
- other operations normally undertaken by a person carrying on business as a builder
EXEMPTIONS – ACTIVITIES THAT FALL OUTSIDE OF THE SCOPE OF ‘DEVELOPMENT’
The 1990 Act states that the following operations or uses of land are not taken to involve development:
(a) the carrying out for the maintenance, improvement or other alteration of any building of works which
(i) affect only the interior of the building, or
(ii) do not materially affect the external appearance of the building, and are not works for making good war damage or works begun after 5th December 1968 for the alteration of a building by providing additional space in it underground;
(b) the carrying out on land within the boundaries of a road by a highway authority of any works required for the maintenance or improvement of the road but, in the case of any such works which are not exclusively for the maintenance of the road, not including any works which may have significant adverse effects on the environment;
(c) the carrying out by a local authority or statutory undertakers of any works for the purpose of inspecting, repairing or renewing any sewers, mains, pipes, cables or other apparatus, including the breaking open of any street or other land for that purpose;
(d) the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such;
(e) the use of any land for the purposes of agriculture or forestry (including afforestation) and the use for any of those purposes of any building occupied together with land so used;
(f) in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class.
(g) the demolition of any description of building specified in a direction given by the Secretary of State to local planning authorities generally or to a particular local planning authority.
WORKS SO MINOR SO AS TO BE CONSIDERED ‘ DE MINIMIS’
Some works, which might otherwise fall within the definition of development are so minor in nature that they fall outside of the scope of the planning system – i.e. they are ‘de minimis’.
The Oxford English Dictionary defines ‘de minimis’ as
“too trivial or minor to merit consideration, especially in law”
An example of ‘de minimis’ works might include the erection of television aerials (but not satellite dishes) on a dwelling or non-material changes to the external appearance of a building.
The merits of each individual case will determine whether proposals can be classed as de minimis.
MATERIAL CHANGE OF USE
The planning system controls not only building works but also changes in the use of buildings or land.
As outlined above, Section 55 specifies that anything considered to be a ‘material’ change of use falls within the definition of Development.
However, certain uses of buildings and land are considered to be so similar in land use planning terms that to require planning permission to change use would be an unnecessary burden.
The Planning Use Classes Order defines broad classes of use for buildings or other land.
Prior to September 2020, planning use classes fell within four main categories:
Class A covered shops and other retail premises such as restaurants and bank branches
Class B covered employment buildings such as offices, workshops, factories and warehouses
Class C covered residential uses
Class D covered non-residential institutions and assembly and leisure uses
In September 2020, partially in response to the Covid-19 crisis and to provide support to high streets across England, significant changes were made which de-regulated changes of use within town centres and commercial premises.
There are also uses that are described as sui generis, meaning that they do not fall within any of the above Classes.
Where a change of use is proposed between two uses that fall within the same Use Class, this does not amount to ‘development’ and will not require a planning application.
In addition, the General Permitted Development Order grants permitted development rights for specified changes of use between some differing use classes.
A more detailed summary of the Planning Use Classes and Permitted Development rights is provided in our Planning Use Classes section.
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