The 28 day rule for planning permitted development-Permitted Development England

Permitted Development England
How to build a home extension without Planning Permission using your PD rights - Oct. 1st 2008

THE 28 DAY RULE FOR USING LAND OR BUILDINGS FOR AN ALTERNATIVE USE WITHOUT THE NEED FOR FORMAL PLANNING CONSENT.

This is not strictly permitted development that can be utilised by most ordinary home owners but it is an interesting concept worthy of discussion.

There is a provision within planning regulations for the temporary use of land (Part 4 of Town & Country Planning General Permitted Development Order).

This effectively lets you use a site without having to get formal planning permission for a certain number of days per year. Event organisers use it al lot for events, gymkhanas, arts festivals, local fairs and the like.

Its legal implementation is quite narrowly focussed but here are the general rules.

Firstly the land to be used for an alternative temporary use must not be part of a residential curtilage of a domestic home or building so residential gardens, car parks etc. are excluded combined with caravan sites which are dealt with by other legislation together with the displaying of an advertisement.

The land can be used for not more than 28 days in any calendar year and allows for the siting of moveable structures in connection with the use (porta-loos, stalls etc).

The period of temporary use is reduced to 14 days per year for the purposes of markets (car boots) and motor car/cycle racing. Also if the land is within a site of special scientific interest (SSI) then motor sports, clay pigeon shooting and "war games" are completely prohibited unless prior planning approval has been obtained.

Outdoor camping by use of a tent for example can be permitted under this 28 day rule on land that is not part of a residential dwelling. This use is not per person or family. It is in total for the year whoever camps on the land.

The problem for the Planners is trying to count and keep track of the days that you do the alternative use on. Therefore, it can be quite easy to stretch the days well beyond the 'formal' 28 day limit. Many people simply carry on with the alternative use until they first get caught & then continue haphazardly relying on the Planners to formerly count the number of days used per year hoping that they will miss a few.

However, be warned, that the eyes and ears of the Planners and their enforcement section are usually the disgruntled neighbours with a grudge and video cam to hand so it is often not that easy to exploit the time limits for the year.

wording of the legislation:-

PART 4 - TEMPORARY BUILDINGS AND USES

Class A

Permitted development

A. The provision on land of buildings, moveable structures, works, plant or machinery required temporarily in connection with and for the duration of operations being or to be carried out on, in, under or over that land or on land adjoining that land.

Development not permitted

A.1 Development is not permitted by Class A if—

(a)the operations referred to are mining operations, or

(b)planning permission is required for those operations but is not granted or deemed to be granted.

Conditions

A.2 Development is permitted by Class A subject to the conditions that, when the operations have been carried out—

(a)any building, structure, works, plant or machinery permitted by Class A shall be removed, and

(b)any adjoining land on which development permitted by Class A has been carried out shall, as soon as reasonably practicable, be reinstated to its condition before that development was carried out.

Class B

Permitted development

B. The use of any land for any purpose for not more than 28 days in total in any calendar year, of which not more than 14 days in total may be for the purposes referred to in paragraph B.2, and the provision on the land of any moveable structure for the purposes of the permitted use.

Development not permitted

B.1 Development is not permitted by Class B if—

(a)the land in question is a building or is within the curtilage of a building,

(b)the use of the land is for a caravan site,

(c)the land is, or is within, a site of special scientific interest and the use of the land is for—

(i)a purpose referred to in paragraph B.2(b) or other motor sports;

(ii)clay pigeon shooting; or

(iii)any war game,

(d)the use of the land is for the display of an advertisement.

Interpretation of Class B

B.2 The purposes mentioned in Class B above are—

(a)the holding of a market;

(b)motor car and motorcycle racing including trials of speed, and practising for these activities.

B.3 In Class B, “war game” means an enacted, mock or imaginary battle conducted with weapons which are designed not to injure (including smoke bombs, or guns or grenades which fire or spray paint or are otherwise used to mark other participants), but excludes military activities or training exercises organised by or with the authority of the Secretary of State for Defence.

Here is a guide to the 28 day rule that one council put together in 2004:-

(after reading it makes you wonder what insentive there is for anybody seeking prior approval of an intended use to any council seeking to clarify the position of what they intend beforehand).

A Guide to the “28 Day Rule”

What is the “28 Day Rule”?

The “28 Day Rule” is a framework within which information will be requested and decisions made on applications for town planning permits. Briefly it contains the following key features:

• Encouraging more use of the pre-application process and placing greater emphasis on getting the application right before it is lodged

• Making a decision on the application as lodged rather than engaging in iterative rounds of negotiation and amended plans to seek a better outcome with the applicant

• Providing only one request for further information, which must be returned within 28 days otherwise it will be determined on the information available.

• Refusing the application with no refund of fee if there is insufficient information to make a decision on the substantive merits of the proposal.

Background

The recent report “Better Decisions Faster” by the Department of Sustainability and Environment notes that the planning system is Victoria is suffering a number of serious problems. These range from the time taken to process an application for a planning permit through to confusion in policy interpretation and the increasing complexity of planning schemes. Long timeframes and poorly prepared permit applications are two key concerns that are increasing costs to applicants and adding pressures on local government planners.

Surf Coast Shire is experiencing similar problems and is committed to finding more efficient and innovative ways of improving its service.

On 16 December 2004 Council resolved to trial a process of Pre-lodgement Certification combined with a change in direction in the way planning decisions are made, referred to as “The 28 Day Rule”.

Whereas Pre-lodgment Certification is an incentive based initiative that rewards high quality applications by offering priority processing of applications1, the “28 Day Rule” provides disincentives for those who lodge poorly documented applications.

Why is this policy needed?

A review of old planning applications (over 150 days) shows that there are many inactive applications in the system awaiting further information or amended plans from the applicant.

Surf Coast Shire does not want applications in the system that are over 150 days old, even when the delay is with the applicant. Council is committed to reducing the number of inactive applications so that it is only accountable for those that are ready to be decided.

This approach contrasts with the current system where Council officers continue to negotiate with the applicant until the application it is right. There have been numerous applications that have been in an unsatisfactory form since the day they were lodged. These have stayed in the system for many months while seemingly endless changes and negotiations have taken place. In the future a quick refusal is envisaged for this type of application.

Another observation is that many applicants modify their original plans several times before the application is ready to be assessed and decided. Whilst there are good reasons for allowing modifications after an application has been advertised, there has been a tendency for the applicant and planning officer to enter into a round of negotiations and plan changes before it is even advertised. In this situation the statutory clock continues to tick even though the planning officer has no control over the time involved in this process. This process (often referred to as “coaching”) has been seen as a way of “massaging” an application into reasonable compliance in order to increase its chances of being approved. The problem is planning officers are often blamed for exceeding the 60day time limit.

The “28 Day Rule” is designed to change this culture not only within the planning office but also with applicants. A comprehensive pre-application service is offered to help applicants to ‘get it right’ before the application is lodged, however once an application has been lodged and requested information provided, planning officers will be expected to determine or advertise the application, even if it means the application is ultimately not supported because it is deficient in some way.

How does the “28-day Rule Work”?

From 5th July 2004, Council’s will (within 28 days) make one, and only one request for further information where an applicant has submitted a proposal that is inadequately documented. This will set out any deficiencies in the information provided, together with any comments necessary to provide the applicant with guidance as to how to meet key policy issues not addressed in the application.

The applicant will be given a further 28 days to provide all the information requested. If the applicant fails to respond to that request or does so inadequately, Council will proceed to determine the application on the information available to it. Furthermore, unless the required information is of minor importance (and can be dealt with by way of a condition on a permit), the application will be refused and there will be no refund of the application fee.

The exception will be if an applicant is unable to provide the information within the 28-day limit, and requests an extension of time in writing. This might apply for example where the information required will involve extensive research or time to collect. In this case the applicant should write to the Council seeking additional time and nominating a date at which the information will be provided.

A key factor in the delays in the planning system is the submission of poorly documented applications. Council estimates that a large number of applications are inadequately documented, and when requests for further information are made, these are often responded to in an inadequate fashion. Whilst the necessary information required to lodge and an application is publicly “discoverable” most applications continue to be lodged with deficient information.

The new approach will mean that a refusal of permit may be issued one, two or even three times before an approval is given. The key objective is to encourage applicants to submit a fully documented application at lodgment; and to penalise those who fail to do so.

It must be emphasised however, that applications will continue to be assessed with a positive mindset as to how this application can be approved. Whilst approval will not always be possible it should always be possible to apply a test of reasonableness.

A copy of the “28 Day Rule” Policy Guideline is available on Council’s web site.

Assessment of applications

When an application is submitted, it must be immediately checked for:

• basic information required by the Act ( fees, title info, applicant details etc)

• information required by the planning scheme, zones, overlays or other controls,

• matters to be addressed by the applicant in order to respond to the policy content of the scheme.

Applications in the system normally fall into one of three basic groups:-

• Applications that are totally unacceptable.

These are usually applications that are in conflict with the policy basis of the planning scheme and which would not be sympathetic to modification. A refusal is warranted where clear grounds can be given.

• Applications with basic or important information missing

In these cases the 28-day rule will be clearly applied

• Applications with only minor information missing

In these circumstances (even where the missing information has been requested), planning officers will endeavour to ensure the application proceeds to notification and determination; and the matter addressed by a condition on the permit.

Requesting further information from the applicant

A request for further information under Section 54 of the Act will be made within 28 day (or earlier if possible). The letter to the applicant will clearly set out the information required as well as providing a list of issues (eg areas of non-compliance) which should be addressed.

The letter will also include a note advising the applicant that if no response is received within 28 days of receipt of Council’s letter or the response received is inadequate, Council reserves the right to determine the application on the basis of the information available to it at that time.

Monitoring the time frame

The application file will be placed within the monitoring system to ensure that the 28-day period is monitored and enforced.

Where information provided is adequate.

The application will then proceed to notification and determination in the normal way.

Where information inadequate.

Where the information is still inadequate the application will be determined on the basis of the information available. If the application is lacking in information than can be dealt with as a condition of permit, then a decision will be made accordingly. However, if the information is insufficient to allow the merits of the proposal to be properly assessed against the key requirements or policies in the planning scheme, then it is likely that the application will be refused and there will be no refund of the application fee.

If an application is refused on the ground that “inadequate information has been provided “ care will be taken to ensure that it has a proper foundation in the policy basis of the scheme and is information necessary to assess the merits of the proposal. This situation has already been tested at VCAT, which held that:

At the same time, the general intent of the 28-Day Rule and the requirement for further information with an established timeframe has been supported at VCAT in the following cases:

Providing Feedback on the Program

The 28-Day Rule approach is based on a similar system operating at Glen Eira Council that has been shown to result in significant improvements in the time taken to process applications.

At this stage the initiative is being trailed as a pilot program in parallel with the Pre-Lodgment Certification Program. (Further details of this program are available on Council’s website).

It is intended that it will improve timelines in the decision making as well as educating applicants to take advantage of the opportunity to obtain pre-application advice and to ensure that a quality application is lodged.

A formal evaluation of the Program will be conducted once it has been operating for some time, and if it proves successful Council will consider introducing it on a permanent basis.

In the meantime, Council is keen to receive feedback, comment, criticism and suggestions on ways to improve the Program. This feedback can be provided by writing to Council’s Development Approvals Unit at PO Box 350 Torquay, 3228.