(Advice only applicable to England and, to some extent, Wales)
Many Hongkongers come to the UK hoping to find a new place they can call home. The houses they come to purchase, more often than not, require some degree of transformation before they can be proudly proclaimed their home. In some cases, this involves house owners making the uneasy decision to invest in their properties, realise their potential and build an extension, convert a loft and/or add a g e. But what many don’t realise is the complex legal framework restricting property owners’ freedom to freely build whatever/however they wish on the land they own. After all, why won’t one build a castle or factory on the land of the house they own and reap profits were there no restrictions on land use? Common sense as that sounds, it appears something as trivial as converting a loft, making an extension or painting your house in a completely different colour are matters regulated by your Council according to the building regulations.
So, what is ‘planning permission’, and why does it matter? Planning permission is the permission granted by the planning department of your local planning authority, which is responsible for planning & land use. This permission allows clients to carry out significant works on their property or change the use of a building or land. Permission is either granted, possibly subject to certain conditions, or refused. There can be severe consequences for a client who undertakes work without obtaining the necessary planning permission.
What happens when work is undertaken without the relevant planning permission? Is it illegal?
A failure to obtain planning permission or comply with the permission details is known as a planning breach. The local authority can enforce planning legislation where there has been a planning breach. Several actions can be taken by the local authority at this stage. They could:
1) permit a retrospective planning application where planning permission has not been sought. Depending on the contents of the application, permission may be granted or refused; or
2) serve an enforcement notice when they consider you have broken planning control rules. The notice would order a client to knock down a building erected without permission.
A planning breach in itself is not illegal. It is illegal, however, to disobey an enforcement notice unless it is successfully appealed against. You can appeal against both refusals of permission and enforcement notices, but if the verdict comes out against you and you still refuse to comply, you will be legally prosecuted.
More information on planning breaches can be found on this GOV.UK website: https://www.planningportal.gov.uk/permission/responsibilities/planningpermission/failure.
The only situation wherein clients can undertake work without planning permission is when their type of work is recognised as permitted development. In the case of loft conversions and building a garage, however, these do not qualify.
For more information on permitted development, please refer to: https://www.planningportal.gov.uk/permission/responsibilities/planningpermission/permitted.
An enforcement notice is not usually served unless the local planning authority considers what you are doing, or have done, is harmful to your neighbourhood. The decisive issue for the local planning authority should be whether the breach would unacceptably affect public amenities or the existing use of land and buildings meriting protection in the public interest.
It may not seem intuitive to distinguish between projects requiring planning permission and those needing the approval of building regulations. While planning seeks to guide the way our towns, cities and countryside develop, building control (regulated by building regulations) sets standards for the design and construction of buildings to ensure the health and safety of people in or around those buildings. As the two operate in different regimes, which one to apply depends on the nature of your building work.
That is why even minor improvements to your property, such as replacing a door or a window which shouldn’t usually affect public amenities, will still need approval – particularly building regulations approval, as it is a health and safety concern. The Building Regulations 2010 dictates that building regulations approval must be sought for many structural or technical alteration projects. From replacing fuse boxes, connecting electrics, and fitting in an air-conditioner to adding extra radiators (and much more), approval must be sought unless a contractor registered under the ‘competent person scheme’ carries out your work. For more information on building regulations approval, please refer to: https://www.gov.uk/building-regulations-approval.
If building regulations approval and certification should have been obtained for building works, but no such approval exists, there are potential consequences. Under Section 36(6) Building Act 1984, the Council can seek a High Court injunction to require the alteration or removal of work that doesn't comply. To prevent this situation, it is advised that a retrospective building regulations application should be made. This is by means of obtaining a regularisation certificate only obtainable from your relevant local authority. The Building Control Portal is the fastest way to apply for a certificate, as your application is created on your local authority’s database.
Please refer to: https://buildingcontrol.planningportal.co.uk for more information.
One final question Hongkongers arriving in the UK under the BNO 5+1 scheme often ask then is whether a breach of planning permission or building regulations will result in convictions affecting their immigration status and further naturalisation chances. Fortunately, a breach alone will not automatically be considered illegal. However, failing to comply with a subsequent enforcement notice or injunction without appealing within a given timeframe would complicate the situation and may result in criminal persecution. This may likely jeopardise years of hard work building your home sweet home and your immigration status in the country, in the worst-case scenario leading to convictions and/or deportation. Therefore, for detailed legal advice involving complex cases, one should always reach out for legal help from a solicitor or their nearest legal charity. ArchiKei Ltd is not a registered OISC adviser and is in no position to provide formal immigration advice or defence in court.
Some helpful links to read up on planning permission and building regulations approval:
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