Retrospective Planning Permission

On the face of it ‘retrospective planning permission’ sounds like a fairly esoteric legal issue, most likely pertaining to matters like guttering which protrudes past the roof edging by too many inches, or the wrong shade of slate used to patch a roof. The fact of the matter is, however, that applying for planning permission after carrying out the work in question (from adding an extension to a semi-detached to building an estate of multiple dwellings) is an extremely risky proposition which could have disastrous consequences. For an example of just how disastrous you don’t have to look much further than a development built by Persimmon Homes in Cheadle, Staffordshire.

In the worst-case scenario, residents living in some of the properties for which retrospective planning permission is being sought could see their homes demolished if the permission required is not granted. In the case referred to above, Persimmon Homes, while building a development of 125 properties, raised the ground level of the site by 2.4 metres to ensure that it was flat. This resulted in some residents of nearby properties claiming that the homes in Pottery Gardens (the development) are blocking sunlight from their homes.

The understanding is that eight of the properties in question are affected. In addition to being at risk of demolition, it has been stated by a lawyer acting for the relevant Local Authority that the homes could have ‘zero value’ on the open market, having initially been sold without proper planning permission.

Complaints about the properties from neighbouring residents date back to October 2021 and predominantly focus on the ‘overbearing’ nature of the buildings and the way in which they blocked access to light. The contention is that Persimmon Homes breached any planning permissions which had been granted by building the properties too high and too close to existing properties.

At the time of writing, Staffordshire Moorlands District Council‘s planning committee (having criticised the inaction of the Council’s planning department in the face of initial resident misgivings) has deferred any decision on the matter to allow for consultation between planning officers, local residents and the developer. The hope is that this course of action will establish whether mitigation measures could be used to address the residents’ concerns.

Following this consultation, the planning application will be presented to the planning committee again to ascertain whether retrospective permission can be granted. If the answer is no, then the people living in the affected homes, as well as the developers themselves, will find themselves in an extremely difficult situation.

Retrospective applications

This case, in which multiple homeowners could find their houses having to be demolished, or rendered worthless at best, is an example of what can happen if planning permission is applied for after work has been carried out.

The motivation behind a decision to proceed with a project prior to planning permission being granted could be anything from a misunderstanding of what can actually be done without planning permission, to a fear that the often-slow planning process could delay development to a detrimental degree. In many cases, the decision is taken on the assumption that planning permission is guaranteed to be granted, and that whether it happens before or after work is completed makes very little difference.

There are ‘4-year’ and ’10-year’ rules in place which state the following: if something which would normally require planning permission has been done to a property without prior approval, then a Certificate of Lawfulness can be applied for as long as it can be proved that the property has been in continuous use in its revised state for a period of 4 or, in some cases, 10 years.

To some degree, applications of this kind are simpler than seeking retrospective planning permission. However, they can only be made if the authority in question has remained unaware of the changes in question throughout the relevant period (4 or 10 years).

Any developers tempted to think that this offers an easy way out should note two things:

The law in question is currently in the process of moving through the various stages in Parliament as part of the Levelling Up and Regeneration Bill. This process could ultimately lead to the law being changed so that all applications need to meet the 10-year threshold.

While the burden of proof for a Certificate of Lawfulness is lower than that required for retrospective planning permission, it is still onerous and time-consuming. Further, as with all matters pertaining to planning, decisions of this kind are discretionary in manner, meaning to try to guess exactly how the planning authorities will view and interpret their actions would be futile.

Consequences

Of course, the question of crossing your fingers and hoping to ‘get away with it’ for 4 or even 10 years becomes something of a moot point once an Enforcement Notice has been served.

Once this has happened, the local authority in question may ask for any works for which planning permission wasn’t obtained to be destroyed and the site returned to its original state. Before this occurs, however, you will be given the opportunity to apply for retrospective planning permission.

There are many things that you can do to a building without having to apply for planning permission at all – these actions being covered by ‘permitted development rights’. They generally include remodelling the interior of a home (provided the footprint of the building isn’t expanded), replacing old windows and doors in unlisted buildings and converting an attached building, such as a garage, into a living space. There are exceptions to all of these, and in some cases conditions may have been attached to any existing permissions. So it is always prudent to do your due diligence before starting work. When it comes to extensions, for instance, it is conservatories and porches which have the most complex rules. They have strict size requirements, as set out on the government’s planning portal.

If a developer does decide to go ahead with work on the basis that the market demands quick action and they can apply for retrospective planning permission in the future, they need to be aware of the range of issues that the relevant planning authority is likely to consider. In general, the kind of works which might require retrospective planning permission includes the following:

• Unauthorised construction of buildings
• Unauthorised construction of extensions
• Unauthorised change of use of buildings
• Unauthorised display of advertisement
• Unauthorised works to listed buildings
• Unauthorised works to protected trees

In more detail, an application will be considered on the basis of local and national standards. The local authority in question will look at anything which they might consider to be a material planning consideration. This might include any of the following factors:

• Overlooking or a loss of privacy
• Any impact on a neighbouring amenity
• Any loss of light or overshadowing
• The design of the building – including appearance, materials and bulk
• The layout and density of building
• Any impact on highway safety
• Any excess traffic generation
• Parking space for vehicles and cycles
• Any effect on the general character of the area
• Any impact on listed building(s) and conservation area(s)
• Access for emergency services
• Emergency exits for residents
• Biodiversity and potential harm to valued plants, insects and wildlife

This is a far from exhaustive list and helps to demonstrate the sheer range and variety of factors which might trip up a property developer seeking retrospective planning permission, particularly across a larger development with multiple buildings.

Once a retrospective planning application has been submitted it will be considered in the same way as an ordinary planning application. For information, the This is Money website published a breakdown in 2020 of the rejection rate of retrospective planning applications across various regions of the UK. The national average was a rejection rate of 12%, with localised figures ranging from 21% in London and 28% in Wales, to 3% in Scotland and Northern Ireland.

The conclusion is that applying for retrospective planning permission represents a roll of the dice which, in some parts of the country, may have a very high chance of success and in others is more of a gamble.

Overall, however, the discretionary and often somewhat arcane nature of planning law means that an application at any stage of a development represents something of an unknown quantity. The principal difference being that a rejected planning application prior to work taking place is an inconvenience which could lead to plans having to be revised, whilst a retrospective planning application being rejected could – as Persimmon Homes may be about to discover – be a complete disaster.