Last edited 13 Mar 2020

Principal statutory considerations and constraints

Contents

[edit] Conditions of Appointment of an Architect

Under the RIBA Standard Conditions of Appointment of an Architect 3.10.1, the client acknowledges that the Architect does not warrant that planning permission and other approvals from third parties will be granted at all, or if granted, will be granted in accordance with any anticipated time-scale.

[edit] RIBA work stages 0 and 1

[edit] Planning

At this stage the proposal should be discussed in principle with the local planning authority to reduce any future risk for the project.

The planning history should also be investigated to determine any previous applications, consents or refusals, comments from the public etc. NPPF overrides the planning history.

You should also determine if this qualifies as a 'major project' that might have considerable public interest since this can affect timescales.

[edit] Local plan

The local plan (and neighbourhood plan if it exists) should be referred to in order to establish planning policy regarding development in an area. Planning history investigation will reveal any existing relevant permissions, consents, refusals and comments from the public. Note, that if the local plan contradicts what is in the National Planning Policy Framework (NPPF), the NPPF overrides the planning history.

[edit] Conservation area

Alterations that will affect the external appearance of buildings in a Conservation Area may require Listed Building / Conservation Area Consent. It is a criminal offence to undertake work in a conservation area without consent, and the local planning authority can insist that the work is reversed.

Demolition of buildings in conservation areas will require planning permission. If commenced without consent criminal prosecution is possible.

If work is to be done to trees, the local authority will require at least six weeks' notification for them to decide whether to make a Tree Preservation Order (TPO).

[edit] Listed buildings

The general principles are that all buildings built before 1700 which survive in anything like their original condition are likely to be listed, as are most buildings built between 1700 and 1850. Particularly careful selection is required for buildings from the period after 1945. Buildings less than 30 years old are not normally considered to be of special architectural or historic interest because they have yet to stand the test of time.

Listing Buildings Consent is required for demolition, alterations and additions to a listed building. The local authority conservation officer and Historic England should be consulted. Listed Building applications run in parallel to planning applications.

[edit] Section 106 agreement / Community Infrastructure Levy

Clients should hold preliminary discussions with planning officers to determine the likelihood, nature and extent of 106 agreements (planning obligations) and the Community Infrastructure Levy (CIL).

Planning obligations (also known as Section 106 Agreements or 'planning gain') are obligations attached to land that is the subject of a planning permission. They are used to mitigate or compensate for the negative impacts of a development or to prescribe the nature of a development.

They apply to the land not the applicant, so planning obligations transfer with the land to future owners of the site.

[edit] CDM

The CDM Regulations 2007 are intended to ensure that health and safety issues are properly considered throughout all work stages to reduce the risk of harm to those who have to build, use and maintain structures.

[edit] Contamination / hazardous substances

If a site is likely to be contaminated, the client needs to be aware of their duties under Part 11A of the Environmental Protection Act 1990. The client should be advised to appoint a CDM Co-ordinator as required by CDM Regulations 2007 and carry out a risk assessment of the site prior to soil surveys for contamination. They should also notify all project staff of the risks under the Health and Safety at Work Act 1974.

HSE (Health and Safety Executive ) and Local Authority Environmental Health Department should be consulted.

[edit] Protected views

In London, there are many protected views, particularly along the river Thames. Refer to the London View Management Framework and consult Historic England.

[edit] Protected species

Legislation dictates that any structures or place which a bats use for shelter or protection are protected from damage or destruction whether occupied or not.

If a bat survey has not already been undertaken to determine the potential for bats on site, and or the presence of bats, the authority should request that the developers commission an appropriate survey

If a bat survey demonstrates that bats and/or a known roost are likely to be affected by the proposed development and planning permission is to be granted, a condition should be placed on the decision notice requiring the developer to apply for, and obtain, a European Protected Species Licence before work commences.

In the case of unlawful destruction of a roost or harm to a bat, severe penalties and potential prosecution may be incurred.

[edit] Party wall

Under the Party Wall Act 1996, a party wall notice may be required. A party wall surveyor and adjoining owners should be consulted.

[edit] Title deeds

The title deeds should be checked to confirm and establish boundaries, easements, rights of way and restrictive covenants that may burden the land.

[edit] Substations

Statutory undertakers / utilities companies should be consulted to establish any easements on the land in connection with electrical substations. If works are required to the utilities as a result of the development, the timescales to do so are determined by each company. The process can take time and be costly.

Wayleaves are a means of providing rights for a company to instal and retain their cabling or piping across private land in return for annual payments to the landowner.

[edit] Easements

An easement is a right that someone may have to use land that they do not own in a certain way, or to prevent the owner of that land from using it in a certain way. Examples of common easements include rights of way and a right of light.

Rights of Light : the owner of a building with windows that have received natural daylight for 20 years or more is entitled to forbid any construction or other obstruction that would deprive them of that illumination. Neighbours cannot build anything that would block the light without permission.

[edit] Access

Under the Highway Act 1980, Highways England should be informed of any proposed changes to access. The local highway authority should also be consulted and informed of any proposed changes to access. The client might consider appointing a Transport Consultant for larger, more complex projects.

[edit] Rivers and waterways

Client should consider the implications of river frontage and the possible need for flood prevention measures. Refer to PPS 25 Flood Risk and consult Environment Agency / Canal and River Trust.

[edit] Holding hazardous substances

If the proposal is to hold certain quantities of hazardous substances at or above defined limits, the client must obtain hazardous substance consent, in accordance with the Planning (Hazardous Substances) Regulations 2015. The Hazardous Substance Authority should be consulted.

[edit] Asbestos

The duty to manage asbestos is contained in the Control of Asbestos Regulations 2012. To do any building or maintenance work in premises, or on plant or equipment that might contain asbestos, there is a requirement to identify where it is, its type and condition; assess the risks, and manage and control these risks. An asbestos survey may be required. It is necessary to employ a licensed contractor to remove/work on asbestos if the materials are high risk.

[edit] Archaeological remains

Clients should refer to PPS 5 (Planning Policy Statement 5): Planning for the Historic Environment, as well as arrange for an archaeological investigation. Decisions are based on the nature, extent and level of that significance, investigated to a degree proportionate to the importance of the heritage asset.

Wherever possible, heritage assets are put to an appropriate and viable use that is consistent with their conservation. The positive contribution of such heritage assets to local character and sense of place is recognised and valued.

Consideration of the historic environment is integrated into planning policies, promoting place-shaping.

[edit] RIBA work stages 2 AND 3

[edit] Planning permission

If under the Town and Planning Act Order 1990, the proposal is not a permitted development, it will require planning permission (or if an Article 4 direction is in place).

Pre-application advice from the local authority planning officer may be advisable. The client may consider submitting outline planning at an early stage to obtain broad approval before any substantial costs are incurred.

For specific schemes of a certain size or if strong public objections are made, it may be required to hold a public consultation with the local authority and community.

Prepare a detailed planning application for the proposal including change of use if required. It is best to obtain guidance and advice from professional planning consultants. See use class.

[edit] Environmental impact assessment

An Environmental Impact Assessment may be required under the Town and Country Planning Regulations for large or sensitive developments. The local authority should be consulted to determine the scope of assessment and sustainability requirements.

[edit] Design and access statement

Design and access statements are required for buildings of more than 1,000 sqm, public buildings, housing developments of 10 dwellings or more and developments requiring listed building consent. In conservation areas, design and access statements are required for single dwellings or buildings of more than 100 sqm.

An access consultant can be appointed to ensure provisions of the Equality Act 2010 are met.

[edit] Sequential test

You need to do a sequential test if both of the following apply:

You don’t need to do a sequential test if the following apply:

[edit] Timescales

The statutory determination period for validated planning applications (which local planning authorities should not exceed) is 8 weeks for straight-forward planning applications, 13 weeks for unusually large or complex applications (major projects). The process can take 16 weeks if the application is for a large or environmentally sensitive project, which may be subject to an Environmental Impact Assessment (EIA). The public consultation period will usually take 3 weeks.

NB: Where demolition work is proposed, the owner must give the local authority building control department six weeks notice under Section 80 of the Building Act

[edit] Decisions

Delegated powers : Minor projects, no objections, meets criteria set out in Local Development Plan

Planning committee : Large, complex or controversial, or those requested by an objector or member of the council to be taken to committee.

[edit] Appeals

There is liaison and discussion prior to appeal; the process requires no fee, however each party will be responsible for preparatory costs.

The majority of appeals will be decided by written representations or a hearing and there are four stages involved, which are explained below. The time taken to decide an appeal is a guide.

  • Written representations : 25 weeks
  • Hearings : 42 weeks
  • Enquiries : 36 weeks

The planning inspector writes a decision which over-rules the local authority. The appeal will either be upheld or rejected.

[edit] Building control

The architect should ensure that the project complies with the Building Regulations (Building Act 1984).

Generally on larger, new-build projects, a 'full plans' application will be made, meaning that full details of the proposed building works are submitted for approval before the works are carried out.

On small projects, or when changes are made to an existing building, approval may be sought by giving a 'building notice'. In this case, a building inspector will approve the works as they are carried out by a process of inspection. This does leave the client at risk that completed works might not be approved, resulting in remedial costs.

[edit] Fire

Ensure that the building complies with the Fire Precautions Act 1971 and the Regulatory Reform (Fire Safety) Order 2005 (does not apply to domestic buildings). A fire strategy should also be discussed with the fire authority.

[edit] CDM

The CDM Regulations 2007 (appoint CDM Co-ordinator) are intended to ensure that health and safety issues are assessed through all work stages to reduce risk of harm to those who have to build, use and maintain structures.

[edit] Other consents

Certificate of lawful development - if there is any ambiguity or question over whether your proposal passes the permitted development tests, it is possible to apply for a Lawful Development Certificate.

[edit] Related articles on Designing Buildings Wiki

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