Permitted development rights – Is restoration required?

Summary

This Law-Now considers a recent CMS-led planning appeal where restoration of land which was developed under PD rights was erroneously expected by the local planning authority and highlights the importance of getting it right with reading and interpreting legislation.

At debate was whether restoration requirements were automatically attached to the Permitted Development Rights (“PD Rights”) contained within Part 9 of Schedule 2 of The Town and Country Planning (General Permitted Development) (England) Order 2015 (“GPDO”). In particular, the Planning Inspector considered the extent to which planning permission could be granted whilst the temporary use, permitted through PD rights, was ongoing or whether there was a need to restore the land to it’s original use to fully assess the proposed planning application.

In this recent planning appeal made by Streete Court Leisure Limited against the decision of Tandridge District Council, the Planning Inspectorate found that there are no specific requirements for the restoration of the site on completion of the operations permitted under the GPDO.

This appeal provides useful guidance on how to interpret PD Rights that are temporary in nature and silent in respect of restoration requirements; it is noted however that this needs to be read in its context and the specific facts of the appeal. 

The Background

Streete Court Leisure Limited (the “Appellant”) challenged the decision made by Tandridge District Council (the “Council”) to refuse planning permission. The planning application was for the “restoration of former M25 works compound to create new 300 yard practice ground with 8 covered bays and teaching studio, new practice bunker, grass practice tee and short game area, provision of conveyance swales and three attenuation ponds. Associated ecological enhancements including the planting of 4,049 sqm of wildflower meadow and 2,440 trees. (Amended plans).”

The planning permission was refused on multiple grounds, however through discussions with the Council, it became clear that it was their position that the M25 works should have been restored to the site’s previous use and landscape. Once the expected restoration had been completed, the Council would then use the restored site as the baseline for the review of any future planning application.

The site had been used as a highways depot for M25 works, using PD Rights, by various highways contractors intermittently since September 2012 without any formal restorations taking place between occupations. Following the refusal of permission by the Council in January 2024, the site (which was unoccupied at the time of the planning application) once again became a highways depot.

The law

The GPDO allows for development without planning permission in certain circumstances this is known as “Permitted Development Rights” or PD Rights. The specific PD Rights considered in this appeal were those located at Part 9 (Class B) of Schedule 2 of the GPDO. This section of the GPDO states:

Para B: Permitted development

The carrying out by the Secretary of State or a strategic highways company of works in exercise of the functions of the Secretary of State or the company under the Highways Act 1980, or works in connection with, or incidental to, the exercise of those functions.

Within the law, there is a notable absence of references to temporary use and/or restoration (as can be found, for example, at Part 4 (Class A) of Schedule 2 of the GPDO); additionally, there are no limitations applied to the PD Rights as this part of the GPDO does not contain any sections on “Development not permitted” or “Conditions” as can be seen elsewhere.

In respect of the site, two Certificates of Lawful Use were obtained regarding the creation of the highways compound and the siting of temporary buildings in 2016 and 2021; these Certificates of Lawful Use did not however contain or allude to any restoration obligations.

The grounds of dispute

In this appeal, in respect of the PD Rights and current use of the site as a highways depot, the Appellant’s position was that, given the absence of reference to restoration and the lack of enforcement action from the Council to date in respect of restoration efforts; there were no grounds upon which the planning permission could be refused pending restoration of the land. The planning permission was therefore to be considered based on the site “as is.” This was an important distinction as the planning application was for development in the green belt – so getting the ‘base-line’ correct was essential to the planning determination.

The Council rejected the Appellant’s position and argued that the PD Rights were inherently temporary by nature and so there was an implied requirement that the land would be restored following the use of the site for the permitted purpose. The Council argued that, at the conclusion of the current permitted use, the land should be restored to that of a paddock, the planning application should then be re-submitted whereby the newly restored paddock will be used as the baseline in respect of planning considerations including, but not limited to, visibility, biodiversity and the character of the local area.

The Council’s sought to rely upon a statement made by a previous highways contractor that the land would be restored to it’s current use following the completion of the highway works; however, this assurance was not provided by the Appellant, nor did the restoration take place, nor did the Council seek to enforce any forms of restoration over the 12 year period in which the highways use of the land was intermittent.

The decision

Ultimately, the appeal was granted. The inspector, who presided over the planning inquiry noted in his appeal decision that:

“The [GPDO] is clear that there are no specific requirements for the restoration of the site on completion of the operation as a highway depot. This existing use is lawful and establishes the baseline against which the impact of the appeal scheme should be assessed;” and

“Whilst the Council maintains that the original intention of the temporary occupiers was to restore the land it is unclear how these intentions could be achieved through the planning process and whether its enforcement powers could achieve this.”

Within the appeal decision, the Planning Inspector therefore reinforced the Appellant’s interpretation of the legislation that the PD Rights did not contain an underlying presumption of restoration despite being temporary in nature. Accordingly, the correct baseline for assessing the planning application is that of the current use of the site, here as a highways depot, as opposed to the site as it would be following restoration to a historic use.

Conclusions

This appeal, where CMS acted for the Appellant, reinforces the importance of reviewing legislation closely and understanding the broader context of related legislation to assess if there are any common themes or requirements. This can be greatly beneficial in assessing whether any requirements can be imposed, or dismissed, on the legislation through similarities and differences.

This appeal is further important in its review of the PD Rights as it rebuts the presumption that permitted development must be followed by a restoration project, whether for a further planning permission or simply at the end of the use of the PD Rights.

Although within this appeal the Planning Inspectorate held that the planning application would restore the land to a use consistent with its landscape character; this was seen as a positive and contributed to the economic, social, and environmental benefits, it was not determined to be a requirement of the PD Rights.

Article co-authored by Katie Shale, Trainee Solicitor at CMS.