Public Consultation - Definition of Development Order & Registered Building Regulations

Introduction

Read the Draft Definition of Development Order:

The overall approach is to clearly establish within the Act the broad principle that certain things are capable of being development and then use secondary legislation to provide the detail of when such matters are excluded from being development. This will then give both property owners and the Department clear parameters to work within when establishing whether or not something requires a planning application. This will remove the need for detailed case-by-case assessment of very minor works.

There are two ways to allow something to occur without needing approval via a planning application – it can be excluded from the definition of development (and therefore placed out of the scope of the planning system) or it can be given a ‘blanket’ planning approval via a Development Order (often called 'Permitted Development') which can be subject to conditions.

6(2) provides an illustrative (not exhaustive) list of things which do constitute development and 6(3) provides an illustrative list of things which do not constitute development.  6(3)(e) gives the Department powers to add to the list of things which are not development (in a 'Definitions of Development' order), but not to add to the list of things which are development. 

In practice, it requires professional judgement and case-by-case consideration (often with reference to case law) to determine whether something is sufficient to constitute development or if the appearance of a building is 'materially' affected. There are a number of common works which therefore sometimes constitute development, which creates uncertainty for property owners and additional work for the Department.

Broad Approach and Changes being made to the Act

Demolitions

The Planning Bill amends section 6 (meaning of 'development') of the Act to widen the meaning of 'development' and to expand the list of matters which do not qualify as 'development'. The Bill will therefore extend the list at 6(2) of things that do constitute development to include Temporary structures (including on wheels), Hard-surfacing of a domestic garden, Repairs and Rebuilding Works, and Exterior painting of buildings. This will provide a clear basis for the Department to produce a Definitions of Development Order which sets thresholds/circumstances to exclude those same things from constituting development in many cases. This will provide clarity for all parties and allow the Department to provide for the appropriate level of detail in the classification of 'development'.

The definition of development clarifies that the partial demolition of a building or the demolition of an attached building is development, however it is silent on the total demolition of a detached building, which has by practice been viewed as 'not development'. This creates a number of technical issues for the process (for example, at what point a planning application for the demolition and replacement of a building has been implemented). Again, the Bill will add all demolition to the definition of development with exclusions to be provided via a Definitions of Development Order.

It is noted that there are some activities undertaken by statutory undertakers which are included within the permitted development order but in other jurisdictions (for example England) are specifically excluded from the definition of development. This makes it clearer where such activities are not to be regulated by the planning system but by separate existing processes/legislation.

Demolitions in Conservation Areas

The Bill will revoke section 19 (control of demolition in conservation areas) of the Act. 

Section 19 of the Planning Act requires the demolition of a Building within a Conservation Area to have Registered Building Consent (even if it is not itself registered). Therefore, proposals to redevelop sites currently require two applications – a planning application for the development and a Registered Building application for the demolition. It also means that someone wishing to remove, for example, a modern domestic shed from a back garden in a Conservation Area would technically require Registered Building Consent. The proposed amendments to Section 6 together with the omission of Section 19 would mean that only one application was required for redevelopments within Conservation Areas and the demolition of very small buildings, such as sheds, can be excluded from needing consent.

Proposed Content of the Definitions of Development Order

Whilst the following matters are to be included in the Act as development, provisions will be made in the Definitions of Development Order for circumstances where exclusions apply:

• Removal and Replacement of Chimneys (removal without replacement would still require an application)
   
• Domestic Hardstandings
   
• Painting of the exterior of buildings and
   
• Demolitions of smaller buildings

The detail of the proposal and caveats that apply in each case are set out in the draft order and summarised/explained below (including summary table).

Repairs and Rebuilding Works

Development (including repairs) does not include maintenance, improvement or other alteration of any building of works which affect only the interior of the building, or do not materially affect the external appearance of the building.

Therefore repairs which did not alter the external appearance would still not be development. However, rebuilding works could potentially constitute development even if they do not materially alter the appearance. 

Therefore, if works are undertaken to replace a roof or windows on a like-for-like basis then this would not normally be taken to be development. However, if there are material differences then such replacements could constitute development (although may be permitted development). If works are undertaken to remove and rebuild a chimney then, depending on scale, this is arguably development as it contains an element of partial demolition (that may not be permitted development) and rebuilding. 

To avoid this grey area it is proposed that provision be made to clarify that the removal and replacement of chimneys is not development as long as they are externally like for like (which would involve partial demolition and so is development) – this would allow for e.g. false chimneys.

Hard-surfacing of a domestic garden

The amendments to the definition of development clarify that hardstanding of domestic gardens constitute development, however in many cases such works will have negligible impact and so could appropriately be excluded from the definition of development. In England, permitted development allows front gardens to be paved if permeable/drained or less than 5m otherwise and there are no restrictions on rear gardens. In assessing applications for hard-standings on the Isle of Man, the Residential Design Guide (opens in a new tab) suggests limiting hard surfacing to 50% of frontages (para 6.3.9). In the Isle of Man many applications also include alterations to access, and such works would still require planning approval. Safeguards would also be appropriate to ensure that significant works of embanking or terracing to support a hard surface would still be development.

It is therefore proposed to exclude from the definition of development domestic hardstandings subject to the caveats as set out in the draft order.

Exterior painting of buildings

The amended definition of development would include, 'painting of the exterior of buildings', but it is proposed that this be excluded from the definition of development in the circumstances set out in the draft order.

Demolitions

Demolition works within Conservation Areas require consent under a separate part of the Act (irrespective of whether they are development).

The amendments to the Act would mean the definition of development included all demolitions of buildings but remove the requirement for separate consents for demolitions in Conservation Areas (and maintain the pre-amendment situation for proposals with planning applications made before the amendments came into effect). This means that where a proposal for a new building involves the demolition of an existing one, both elements can be included in a single planning application. The result should be very few applications which are solely for demolition, although it is likely that people may wish to demolish and not replace: part of a building, smaller ancillary buildings (e.g. sheds) and/or walls/gates/fences.

It is noted that in England demolitions are development which in many cases require planning approval, although, fences/walls/gates/means of enclosure which are outside Conservation Areas and although buildings under 50 cubic metres are excluded from the definition of development.  Jersey takes a similar approach and includes within the Permitted Development the demolition of various minor buildings. 

Therefore it is proposed to exclude smaller demolitions from definition of development, as set out in the draft order.

Summary Table – Definitions of Development