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General Development - rights lost? |
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The General Permitted Development Order (GPDO) gives various planning
rights. For instance, householders are permitted to carry out certain
development work provided it comes within the narrow terms permitted by
the GPDO.
At the same time, there are other rights that can arise under the
GPDO, whereby the applicant notifies the LA of intention to carry out
proposed works, with the LA then having the opportunity of responding (and
if it fails to do so, then permission is deemed to have been granted). But,
what happens if a landowner has planning rights under the GPDO, only to
find that the property is then designated as being in a Conservation Area?
Are those GPDO planning rights lost?
A recent case involved a dispute between Orange and Islington with Orange
having previously been granted the right (under GPDO) to erect a mast.
Shortly afterwards, the area was designated a Conservation Area and a
dispute then arose as to whether or not the prior planning rights were
extinguished. The CA distinguished two types of GPDO planning rights:
1 Prior-approval rights: if notice has to be given to the LA which then approves
the application, or fails to respond (in which case permission is deemed
under GPDO) then those prior planning rights survive the creation of the
Conservation Area. The rights will have come into existence at the time the
LA granted prior approval (or when deemed consent arose because of the
LA’s failure to respond). Either way, there is a prior planning right that is not
overridden by the area later becoming a Conservation Area.
2 Non-prior approval rights: these are rights for which no prior application
has to be made (eg a householder’s right to erect a porch, provided
certain criteria are met). These rights do not survive the creation of a
Conservation Area, unless the works have already started. Clearly, there
may well be arguments over what amounts to having commenced the
work, but the principles are now fairly well established.
For a commentary on Orange v Islington BC [2006] EWCA Civ 157 see [2006]
170 Property Law Journal 16.
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July 2006 |
