Article 4 Directions
What are Article 4 Directions?
Article 4 Directions are designations imposed locally which restrict some of the Permitted development rights which householders would otherwise enjoy under the regulations. "article 4 is a power of pre-emption, not prohibition" notes the Encyclopedia of Planning Law (EPL-3B-2024.2). There are two types: Article 4(1) are blanket designations which may be made either by the local planning authority or the Secretary of State. You are unlikely to be affected by Article 4(1) directions. Article 4(2) Directions apply to Conservation Areas and allow a local council to enhance the protection available for important features and details in (usually) heritage housing areas. Councils can only use article 4(2) directions to take away the PD rights that are specified in a list (see Article 4. para. (5) on page 8 of the GPDO for this list*). (see also below) In summary the list concentrates on development which "would front a relevant location" and goes on to define "relevant location" as meaning "a highway, waterway or open space". Parliament is extremely sensitive to the removal of PD rights with Article 4 Directions. In short, they're meant to be used sparingly. Ministerial guidance on their use is given in Circular 9/95 (which is NOT available online) in APPENDIX D at paras. 14 to 20. The main commentary is in paras. 16 & 17. Here's what they say:
"16 An article 4(2) direction can be selective both between and within these types of development. Development relating to an individual type of architectural feature which is important to the character or appearance of the conservation area could be specified. Examples are windows, doors, quoins, fanlights, archtraves, cornices, stonework etc. The Secretaries of State are concerned that local planning authorities should use these powers selectvely and only in relation to development which is likely to threaten the character or appearance of a conservation area.
17. An article 4(2) direction may cover permitted development consisting of the erection of an extension, if any part of it would front a highway, waterway or open space. For example, in the case of a semi-detached dwellinghouse which fronts a road and whose rear and side front private land, a direction in respect of enlargement could cover a proposed extension to the front of the house or to the side of the house if a wall of the extension would front the road. However, it could not cover a proposed extension to the rear of the house, even if part of a wall or the roof of the extension would be visible from the road. The Secretaries of State are particularly concerned that the power to withdraw permitted development rights relating to extensions should be used exceptionally and only where the character or appearance of a conservation area is likely to be threatened."
Recently this guidance from 1995 has been confirmed as current. As it happens, CLG are consulting on the use and designation of Article 4 Directions. The consultation period lasts from 30th July to 23rd October 2009 and notes at para. 54:
"54. Circular 9/95 specifies that permitted development rights should only be withdrawn in exceptional circumstances and that such action is rarely justified unless there is a real and specific threat. We do not propose to amend this test for the removal of permitted development rights."
So, unless the government changes its mind about this before the proposed new Order is brought into force (scheduled for 6th April 2010) formal guidance on Article 4 Directions must be taken from Circular 9/95.
Full details of the proposed changes are set out in the consultation. In summary, the proposals are to remove a householders right to claim compensation for "abortive expenditure, or other loss or damage directly attributable to the withdrawal of permitted development rights."
To understand this in more detail its necessary to look at what prevails now. APPENDIX D of Circular 9/95 sets out GENERAL POLICY in paras. 1 & 2. Here's what they say:
"Article 4 Directions
General Policy
1. Article 4(1) and the new article 4(2) of the Permitted Development Order enable local planning authorities to make directions withdrawing permitted development rights given under Schedule 2 to that Order. However, permitted development rights have been endorsed by Parliament and consequently should not be withdrawn locally without compelling reasons. Generally and subject to the guidance in this Appendix, permitted development rights should be withdrawn only in exceptional circumstances. Such action will rarely be justified unless there is a real and specific threat, ie there is reliable evidence to suggest that permitted development is likely to take place which could damage an interest of acknowledged importance and which should therefore be brought within full planning control in the public interest.
2. Any application for planning permission made necessary because of a direction under article 4 must be considered on its merits in the normal way. Refusal of planning permission folllowing the making of an article 4 direction, or the grant of planning permission subject to conditions other than those imposed by the Permitted Development Order, may give rise to a claim for compensation under section 108 of the 1990 Act for abortive expenditure, or other loss or damage directly attributable to the withdrawal of permitted development rights. Whilst there is no time-period within which such planning applications have to be made, claims for compensation must be made within 12 months of the date of the decision on the planning application or any longer period which may be allowed by the Secretary of State."
The consultation proposes to limit the time within which compensation may be claimed. At present its within 12 months of a refusal of an application. Example 1: an article 4 Direction is made by a council in 2006 and an application for development made necessary by the Direction is made by a householder in 2009 and is refused. The householder is entitled to claim compensation for a period of up to 12 months from the date of the refusal.
The consultation proposes a limit of 12 months from the date of the Direction itself OR if the council gives 12 months notice of the coming into force of the Direction then no compensation will be payable. Example 2: an article 4 Direction is made by a council in November 2009 and a householder has an application for a development made necessary by it refused in March 2010. The householder only has until November 2010 (12 months after the Direction) to make a claim for compensation. Example 3: a council gives notice of an article 4 Direction coming into force in 12 months time. Once the 12 months notice period expires no compensation will be payable for any application refused for development made necessary by the Direction. Of course, in this last example the Direction is not in force until the 12 months notice period is up and so until then no withdrawal of permitted development rights has taken place.
Another key feature of article 4 (2) Directions is the method prescribed for their designation. This is specified in Circular 9/95 APPENDIX D at para. 18 "The procedure for article 4(2) directions is set out in article 6 of the Permitted Development Order. As soon as practicable after a direction has been made, local planning authorities must publish a notice of the direction in a newspaper circulating in the locality and notify the occupier or owner of every dwellinghouse in the area covered by the direction, unless in the authority's opinion the number of owners or occupiers or difficulty in establishing their identity makes individual notification impracticable."
Conclusion.
Successive governments have clearly been keen to ensure that housholders' PD rights are only withdrawn exceptionally. The consultation makes it clear that this should remain the case. Some concerns have been expressed, though, that the removal of compensation rights could lead to a flood of directions to bring more development under council control and thus defeat the purpose of PD rights in the first place.
* Caution: reading this will fry your brains! We're reminded of the remarks of W.A. Leach in 1950 when commenting on the technical and detailed nature of the first householder General Development Order (1948 No 958): "It is evident as soon as article 2 of the Order is reached that the Parliamentary draftsmen are losing their grip". What Mr Leach would make of today's stuff is anyone's guess! While we're at it here's another little gem from 1950: describing the purpose of SI 1950 No 728 General Development Order the Ministry of Town & Country Planning Circular 87, 1950 notes at para. 4 "to remove from the need to obtain express planning permission a number of minor applications which have so far occupied an amount of time and manpower out of all proportion to their importance to planning". Alors, plus ca change.
