Deemed planning permission and the situations that create it

Deemed planning permission is a narrow statutory idea, and the phrase gets used for at least three things that are not it. Permission is deemed to be granted only where an Act or a statutory instrument says so. There is no general principle that silence, delay or the grant of some other consent produces planning permission by implication.

That matters commercially. A business that starts trading on the strength of an assumed permission is exposed to enforcement from the first day, and the fact that the assumption was reasonable is no defence.

What the phrase means

Deemed permission is permission that exists without anyone having applied for it and received a decision notice in the ordinary way. The statute treats it as granted.

Two consequences follow. It can carry conditions, because the provision creating it usually allows conditions to be imposed. And it has a scope defined by the instrument that created it, so anything outside that scope needs a conventional application.

Neither point is obvious from the phrase, and both are where problems arise.

Permission deemed on the grant of another authorisation

Section 90 of the Town and Country Planning Act 1990 is the main provision. Where certain authorisations are given by a government department or by the Secretary of State under other legislation, a direction may be made that planning permission is deemed to be granted for the development that authorisation covers.

The point of it is to avoid running two consent processes over the same development. Rather than granting a consent under one regime and then requiring a planning application for the same works, the department directs that permission is deemed granted, with conditions where appropriate.

Similar mechanisms appear elsewhere in the statute book, where an order or consent made under separate legislation can carry deemed planning permission with it. In each case the deeming comes from the specific provision, and its extent is whatever that provision says.

For a commercial occupier the practical point is simple. If your development is being authorised through another regime, ask early whether deemed planning permission comes with it, because the answer determines whether you also need to apply to the council.

Deemed applications on an enforcement appeal

This is the version most likely to touch an ordinary business.

An appeal against an enforcement notice can be brought on several grounds. One of them is that planning permission ought to be granted for what the notice alleges. Where that ground is pleaded, the appeal is treated as including an application for planning permission for those matters, and if the ground succeeds, permission is granted.

Two practical points. The fee for that deemed application has to be paid, and failure to pay removes the ground from the appeal, which can leave an appellant arguing only technical grounds they were never going to win. And the permission granted covers the matters stated in the notice, which may be narrower than what the business is doing today.

The related idea of non-determination and the deemed refusal appeal runs in the opposite direction. There, delay produces a right of appeal against a refusal that never happened. It produces no permission at all.

Advertisement deemed consent

The advertisement regulations use the word "deemed" for something different again, and the overlap in terminology causes real confusion.

Specified classes of advertisement benefit from deemed consent, subject to standard conditions and to limits on size, illumination and position. A fascia sign within the limits for its class can be displayed without an express consent application.

Three things are worth knowing. Deemed consent is subject to the standard conditions, so an advertisement that exceeds a limit loses the benefit entirely rather than partially. The authority can serve a discontinuance notice requiring removal where the advertisement causes substantial injury to amenity or danger to the public. And deemed advertisement consent says nothing about planning permission for any physical works involved, which is a separate question.

Prior approval and the expiry of a determination period

Several permitted development classes require prior approval, and some provide that development may proceed where the authority has not notified its decision within the stated period.

That is not deemed planning permission in the section 90 sense. Permission comes from the development order, and the prior approval process is a condition attached to it. The effect of the authority's silence depends entirely on the wording of the class, and the classes are not uniform.

So read the class. Keep the submission, the validation acknowledgement and a record of the date the period expired. Where a scheme depends on that expiry, a certificate of lawfulness is worth the fee, because the alternative is explaining the point to a purchaser's solicitor under time pressure.

Conditions on a deemed permission

Because the provisions creating deemed permission generally allow conditions, a deemed permission is rarely unconditional.

Read the direction or the decision letter with the same care you would give a decision notice. A section 90 direction may attach conditions drawn from the parallel consent, and an appeal decision granting permission on the deemed application will set out conditions in the same way any grant does, often including a time limit for implementation.

The scope question matters as much as the conditions. Permission granted through an enforcement appeal covers the matters stated in the enforcement notice, which were drafted by the authority to describe a breach rather than to describe a business. Where the operation has moved on since the notice was served, the permission may not cover what is now happening on the site.

Where the concept misleads

Four assumptions cause most of the trouble.

That a licence from another part of the council implies planning permission. It does not. A premises licence, a street trading consent and a food business registration each answer their own question.

That building regulations approval implies planning permission. Also no. The two regimes are independent and either can be satisfied without the other.

That an officer's email confirming a view creates permission. Informal views are useful and they bind nobody. Only a formal decision, a certificate or a statutory deeming provision does that.

That a holding directions situation or a delayed decision somehow resolves in the applicant's favour with time. It does not.

Where any of this is in doubt, set the position out clearly in a Planning Statement and ask the authority to confirm it in writing, or apply for a certificate. If you are working out what a proposal needs before any of that, start from the documents an application needs.

This is general guidance rather than legal advice. Check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.