New permitted development rights for householder development have come into force

Permitted development rights (“PDR”) enable certain categories of development to be undertaken without the need to apply for planning permission. That is because the Scottish ministers have in advance made an order under the Planning Act 1997 that planning permission is “deemed” to be granted. PDR are therefore advantageous to the developer in terms of speed, efficiency and certainty.

Under PDR there is no application and no publicity requirements, and that sometimes leads to controversy. PDR usually relate to minor developments, but not always.

PDR are hedged with conditions and limitations, and if any of these are not met, or are breached, then a formal application for planning permission will be required otherwise the developer may be subject to enforcement action.

PDR do not apply if the development is unlawful or in breach of a planning permission, and PDR can be removed by a direction by a planning authority.

Regulation alterations

New PDR for householder development came into force on 6 February 2012 under the Town and Country Planning (General Permitted Development) (Scotland) Amendment Order 2011, which has further amended the Town and Country Planning (General Permitted Development) (Scotland) Order 1992. The 2011 Order was subject to public consultation in 2010 and effectively replaces the classes of development to which PDR applied under the 1992 Order.

The 2011 Order sets out rules by which modest alterations and extensions to dwellinghouses and to a lesser extent flats can be carried out under PDR. A helpful circular has also been published – “Guidance on Householder Permitted Development Rights”, Circular 1/2012 – which is available on the Scottish Government’s website.

Article 2(4) of the 2011 Order substitutes part 1 of the schedule to the 1992 Order, which identifies the categories of development within the curtilage of and to a dwellinghouse which may be carried out under PDR. Article 2(4) adds a new part 1ZA to that schedule, which identifies development which is permitted with respect to buildings containing flats.

Importantly, where the property lies within a conservation area, PDR are either excluded or subject to further restrictions. Additionally, if the property is a listed building, PDR may also be excluded, and listed building consent will also be required for any development that affects the character of the building as a listed building.

Practical impact

Class 1A deals with the enlargement of a dwellinghouse by way of a single storey ground floor extension; class 1B with the enlargement of a dwellinghouse by way of a ground floor extension of more than one storey. Class 1C deals with porches on a dwellinghouse, and class 1D with roof extensions.

Class 2A deals with access ramps to a dwellinghouse; class 2B with other development on the roof or external walls of a dwellinghouse which is not an enlargement.

Classes 3A and 3B deal with ancillary buildings and building operations within the curtilage of a dwellinghouse for purposes incidental to its enjoyment; classes 3C and 3D deal with hard surfaces and decking or other raised platforms; class 3E deals with gates, fences, walls and other means of enclosure; and class 4A deals with improvements and alterations to flats.

There are transitional arrangements for PDR developments initiated before 6 February 2012 and completed before 31 August 2012, and they will benefit from the relevant provisions of the 1992 Order.

The practical effect of the PDR can be somewhat difficult to grasp at conceptual level, and it would be necessary to compare the detail of a proposed development with the terms of the 2011 Order in advance of works taking place to ensure that the qualifying criteria apply. The circular provides diagrammatic advice that is helpful. We may see a rise in requests for “letters of comfort” from planning authorities that development falls within PDR, and in exceptional cases applications for certificates of lawful use to confirm that PDR applies.

The Author
Alastair McKie, Partner and Head of Planning & Environment, Anderson Strathern LLP
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