What is Prior Approval?

The term ‘prior approval’ is often mistaken as permitted development, it is not. It is a step on the road to permitted development, but it is not confirmation that you actually have a development that is lawful (permitted). Be it short in description, it is exactly what is states….it addresses whether or not you require prior approval.

What is Prior Approval for a residential development

Where we have stated that permitted development must be considered as black and white, where prior approval is concerned, this is black and white in high resolution and definition.

Prior approval is a form of development that needs to be addressed first under consultation with the public and the planning department before it can be considered eligible for permitted development. The term ‘prior approval’ essentially means ‘without applying for planning permission’. If you receive a decision that states ‘Prior Approval is not required’, this means that this development does not need to apply for planning permission. Such developments therefore can be considered at that point under permitted development however, in every scenario under this route, schemes can only be deemed lawful under a certificate of lawfulness.

Unlike permitted development, works that require Prior Approval cannot be carried out until an application for Prior Approval has been made and determined. A development cannot be considered for Prior Approval retrospectively. If it is confirmed that a scheme does not require Prior Approval, this means that it can be considered for lawful development however, a decision notice for Prior Approval is not the same as a certificate of lawfulness.

Can I commence works under Prior Approval once it is confirmed that Prior Approval is not required?

Many developments do, though we would always recommend obtaining a certificate of lawfulness first to ensure that the conditions and limitations of the Order and The Act are met. Commencing works without one does not mean that you are carrying out an unlawful development, but will leave the development without formal confirmation of its lawful status. This can be applied for at a later stage.

It is worth noting that planning departments do accept this as sufficient to commence works however, we have seen a difference in opinion on what should happen following confirmation that Prior Approval is not required. A scheme that has confirmation that Prior Approval is not required only confirms eligibility to be considered as lawful development, it does not confirm that the scheme is lawful. At this juncture, you will be on the same footing as any scheme for general permitted development (outside of the Prior Approval route) which does not obligate you to obtain a certificate of lawfulness, but it would be best practice to obtain one.

A decision for Prior Approval does not necessarily address the conditions and limitations that would be assessed under a certificate of lawfulness, and does not replace a certificate of lawfulness.

I have received a decision notice confirming that prior approval is required, what do I do?

In this scenario, you will not be eligible to consider your development for permitted development and will need to apply for full planning permission however, with some alterations you may still have options under this planning route.

It is worth obtaining a copy of the planning officers report to determine the reasons for refusal. In some cases a revision to a scheme can bring your development into compliance if you have not appropriately address the conditions and limitations set under the order and The Act.

It is also worth noting that a scheme addressed under the Prior Approval route consults with your adjoining neighbours, if a neighbour has objected to your scheme and this is the reason for refusal, you may be able to approach your neighbour to find a dimension or scheme that would not be a concern for them.

If however it is found that your site is located in a restricted area, you will need to address your development under a full planning route. Our first blog in this series What is Permitted Development addresses areas that are not eligible for permitted development in more detail.

My planning department and/or architect has told me that I as I have a decision notice confirming that Prior Approval is not required, that I do not need a certificate of lawfulness, what do I do?

The order and The Act do not obligate you to obtain one however, without one; you will not know if your development is lawful.

For fellow professionals involved in planning long enough to remember, decisions for Prior Approval (notably for the ‘larger homes extensions route) were simply a notification that Prior Approval was not required, nothing more.

Referring back to my explanation on what Prior Approval is, Prior approval is a form of development that needs to be addressed first under consultation with the public and the planning department before it can be considered eligible for permitted development. In simple terms, confirmation that Prior Approval is not required simply means that you are eligible to address these works under permitted development. Compliance with the conditions and limitations as set under the Order and The Act can however only be assessed under a Certificate of Lawfulness.

When this planning route was first introduced, it was not welcomed by many planning departments across the UK. This was originally a short-term time limited planning route (later revised to become permanent) to boost the construction industry in response to the 2007-2009 recession. Some Planning Departments were so against this planning route that they refused to issue any confirmation and charged for written decisions on top of the application fee. When decisions were issued, they were often caveated stating that this is not confirmation of lawful development and that any works that were to be carried out under this route should be addressed first under a certificate of lawfulness.  

The manner in which Prior Approval decisions are now issued are far more sensible however, I have seen some overreaching in my opinion. Some local authorities now issue Prior Approval decision notices worded in a manner that some may consider confirms lawfulness under the Order and The Act. For the past two weeks, I have been battling with a planning manager at a local planning department (that I will not mention) who was adamant that the decision notice for a Prior Approval is the same thing as a Certificate of Lawfulness; we had to elevate our concern to director level at the department, the advice given was then promptly rescinded with a letter of apology.

Where permitted development is being applied, we recommend being cautious. A certificate of lawfulness is the only document in our opinion that can confirm compliance with the Order and The Act. If you are seeking written confirmation of lawfulness, a certificate is the only way in which this can be achieved.

Note from the author

Schemes addressed under the prior approval route can be complex, demonstrating eligibility for the Prior Approval route at times is not straightforward and the entire process will take time. This is not a process that can be expedited or rushed into due to the statutory consultation with the public.

Good planning in terms of design, policy compliance and time is critical for this type of development, which is the first stage towards permitted development, though if you fail to have it confirmed that Prior Approval is not required, all may not be lost under the full planning route.