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2.0 LITERATURE REVIEW

The extent and complexity of the GPDO is a function of a very wide definition of development in the Town and Country Planning Acts, coupled with a long-established government concern about the implications for relatively minor and inconsequential development, and the desirability of extending PDR to property owners and agents of government such as statutory undertakers.

Accordingly, permitted development and related approaches have been devised to exclude from planning controls minor development proposals which would generally have received planning permission, had an application been required. In so doing, the scope of permitted development reduces the volume of development proposals submitted for planning permission, associated burdens on developers and planning authorities, thus assisting efficient development control without causing harm to amenity. Permitted development allows planning authorities to concentrate on development proposals which they might wish to influence, either to secure the best quality of development possible, or to ensure that the environment is protected from inappropriate development.

Within a generally deregulatory context since the 1980s, Prior and Raemaekers (2006) suggest "permitted development was regarded as a useful means of deregulation within the planning system and established a trend in relaxations of planning control" (p261).

The 1998 Research on the General Permitted Development Order and related mechanisms by the School of Planning and Housing at Edinburgh College of Art/Heriot-Watt University, with Brodies WS and Halliday Fraser Munro Planning, was the first major research on the operation of the 1992 GPDO since its introduction. Even at that time, ten amendments had already been made to the GPDO to reflect changing circumstances or problems of interpretation and/or understanding. The current GPDO was intended to consolidate significant amendments since the previous 1981 General Development Order, and to make its format and language more "user-friendly". The 1992 GPDO also introduced prior notification, initially for farm and forestry buildings and for demolition, but subsequently extended to other categories of permitted development (see Table 3). The challenge at that time was to "to explore the possibility of securing a fundamental shift towards an increase in permitted development where it is judged that excessive controls currently exist and where the benefits to amenity and the public might be better served by focusing development control attention elsewhere". ¹²

The key tasks were to identify the scope for reducing the complexity of the GPDO, the use of Article 4 Directions, the operation of some particular aspects of the Order, and recommend improvements in procedures. At that time, there was general satisfaction with the current extent and scope of permitted development, but there was a need to improve the user-friendliness of the Order, the language used, and to remove anomalies between classes. Consequently, recommendations focused on rationalizing Part 1 of Schedule 1, embedding the use and review of Article 4 Directions in the development plan, clarifying procedures for prior notification (and removing the requirement for prior notification for demolition) and introducing scope for planning authorities to extend permitted development by means of Local Development Orders. Recommendations were also made to improve the user-friendliness of the GPDO by producing easy-read and web-based versions.

The 2002 research by the School of Planning and Housing at Edinburgh College of Art/Heriot-Watt University for Scottish Natural Heritage was " to compile information about the extent, location and types of permitted developments that have adverse impacts on natural heritage interests, and to make recommendations about the changes that SNH should advise Government to make to the relevant planning regulations".¹³ It included a number of case studies of the natural heritage impacts of permitted developments. The classes of permitted development considered to cause greatest concern in relation to the natural heritage were:

• Farm and forestry buildings
• Farm and forestry tracks
• Works to rivers and land drainage

Of secondary concern were permitted developments:

• By statutory undertakers, specifically activities relating to the transmission of gas (underground) and electricity (above ground)
• For road maintenance and associated works by local authorities.

The researchers recommended that procedures for notification of farm and forestry buildings should be extended to farm and forestry tracks, and to river engineering works. In their view "prior notification is the appropriate and light touch way to address priority concerns about the natural heritage impacts of permitted development", and was preferable, on balance to removing PDR, "and thereby drawing into the planning net much minor and inconsequential development"¹⁴.

In addition, they proposed that the Scottish Executive should issue a Circular clarifying aspects of the Order, there should be a requirement for local authorities and statutory undertakers to have regard to safeguarding the natural heritage in the exercise of their PDR under the GPDO, and this should include prior consultation with SNH when the authority or undertaker believes that there may be a significant impact on the natural heritage.

ODPM¹⁵ and DOE Northern Ireland ¹⁶ separately commissioned Nathaniel Lichfield and Partners, with others, to undertake reviews on the operation and effectiveness of the 1995 Town and Country Planning (General Permitted Development Order) and the 1993 Planning (General Development)(Northern Ireland) Order. Both reviews utilised similar research methods and drew similar conclusions which informed broadly equivalent recommendations.

The English and Northern Ireland GPDOs are broadly similar to the Scottish GPDO, with only minor differences in classes of permitted development (eg the English GPDO has classes of permitted development for: Development by the Environment Agency; Developments by the Historic Buildings and Monuments Commission for England; Driver Information Systems; Schools, Colleges, Universities and Hospitals).

In both cases the approach was to build on the current system of permitted development provided by the GPDO, but to subject it to comprehensive review. This approach reflected consultation responses, the nature of the problems identified, experience from similar reviews elsewhere, and "the risk that to move to a radically different system would introduce new problems and make worse a well-tried system that works reasonably well"¹⁷. A basic problem of the GPDO was seen as "applying set thresholds to too wide a range of situations, so causing inconsistency and lack of even-handedness"¹⁸. The priorities of the Lichfield reviews were therefore to improve efficiency and ease of understanding, reduce complexity, and achieve a positive balance with government policy aims (for sustainable development in particular). It was not an objective to extend PDR, and hence deregulation, per se.

The main deficiencies and problems were seen as being:

• Difficulty of use and interpretation due to complexity of drafting and layout, lack of adequate or easily accessible definitions, and absence of a user guidance document;
• Inconsistencies between different categories of PDR and the limitations applying to them;
• Anomalies in drafting which allow for abuses or unintended effects and the ability to carry out similar development under different parts of the GPDO;
• Inconsistency and lack of clear guidance on the operation of prior approval and other consultation procedures with local authorities;
• Adverse impacts on the built and natural environment from inadequate controls on certain PDR, particularly in sensitive landscape areas, conservation areas, and streetscape;
• The limited effectiveness and use by local authorities of Article 4 directions to restrict PDR;
• The failure of certain categories of PDR to support government policy aims.

In response, recommendations included:

• Improving the user friendliness and interpretation of the GPDO through: redrafting, making available on the web a composite and up-to-date version, rationalizing and deleting little-used Parts and amalgamating others, making each Part as self-contained as possible;
• Consistent application of restrictions between different categories of sensitive landscape (ie National Parks and AONBs), extension of requirements for prior approval of siting and design, removing PDR within SSSIs, removing from permitted development works that involve significant ground disturbance within limited areas of archaeological interest (in practice Scheduled Ancient Monuments);
• Making permitted development for works affecting streetscape conditional on such development causing no adverse impacts on streetscape and pedestrian flow, and in accordance with a proposed Street Management Code;
• Restricting permitted development for: forestry buildings (similar to farm buildings), caravans (removal of PDR in sensitive areas), repairs to services (requiring reinstatement), highway authorities (to define works within the boundary of a road as "development", then making it permitted development subject to having no adverse impact on streetscape and pedestrian flow), railway undertakers (prior approval for siting and design of all telecommunication masts), demolition, CCTV, and deletion of little-used rights for toll road facilities;
• Improving the effectiveness of Article 4 Directions by removing the right to compensation where planning permission is refused after PDR are withdrawn;
• Fixed, longer periods for local authorities to respond to prior notification, public consultation on the notification details, and a planning fee equivalent to that for a planning application;
• Extending PDR for schools, universities, colleges and hospitals, industrial and warehouse development, sewerage undertakers, CCTV cameras, caravans (to include caravans used by construction workers on any compound related to pipeline works), railway undertakers (to include their lessees such as train and freight operating companies);
• New categories of permitted development for: minor works required for waste management; development within specified limits within military sites in anticipation of removal of Crown immunity; various site investigation works.

The reviews of the GPDOs for England and Northern Ireland took an incremental approach, the overall impact of the recommendations arising from which would result in a net reduction of PDR and a consequential increase in the annual number of planning applications.

In contrast, the approach in the current research is more strategic, identifying those aspects of permitted development requiring fundamental reform, and making significant changes to the format and presentation of the GPDO overall.

As reported in the 1998 Review for the Scottish Office, the literature in the field of permitted development is "ephemeral and/or difficult to locate and access".¹⁹ Prior and Raemaekers ²⁰ suggest that the necessity for permitted development arises from the broad and universal definition of development in the town and country planning Acts, which captures much minor and inconsequential development. Periodically, the scope of such permitted development is varied according to the deregulation and other priorities of the national government.

This "shifting temporal relationship between 'development' and 'permitted development'"(p243) has been articulated by Tym and Partners ²¹ as comprising a relationship between a core of planning control, where developments always need formal state approval; an inner boundary between the core and permitted development, within which planning authorities apply discretion as to whether formal state approval is required according to the particular circumstances of an intended development; an area of permitted development where relaxed controls are operated, defined by the GPDO, and where planning permission is not normally required; and an outer boundary between permitted development and no planning controls at all, because whatever is involved does not fall within the definition of 'development', although other environmental controls may operate under other legislation (eg control of pollution). Prior and Raemaekers express this as a series of overlapping ellipses as shown in Figure 1.

Some of the difficulties of operation of permitted development occur at the fluctuating boundary of permitted development, itself made fuzzy by the extent of discretionary interpretation of the permitted development limits .

Prior and Raemaekers go on to state that "planning regulation, through the GPDO and other instruments, does not seek an absolute level of prohibition of adverse environmental impacts. Instead, it seeks a level of environmental protection consistent with minimal state interference with development rights, and the maintenance of workable, pragmatic relationships between regulator and regulated" (p257).

Figure 1: the scope of UK land use planning regulation
(Prior and Raemaekers 2006, interpreting Tym, R and Partners, 1995)

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