Procedures for Retroactive Planning Applications
March 2023
Section 20(2A) of the Development and Planning Act 1974 (“the Act”), was inserted as an amendment to the Act on 1 September 2018 as a means of reducing the number of instances wherein works are carried out prior to being granted the requisite approvals from the Department of Planning. This section sets out that:
…where development of land has been carried out in breach of planning, control and an application for planning permission for the development is subsequently made, the [Development Applications] Board shall not grant planning permission—
(a) for the retention on the land of buildings or works constructed or carried out before the date of the application; or
(b) for the continuance of a use of the land instituted before the date of the application,
unless the applicant shows to the satisfaction of the Board that he was not responsible for the breach of planning control or that, at the time the development was being so carried out, he did not know, and could not reasonably be expected to have known, that the development was in breach of planning control.
These provisions apply to cases wherein development has commenced prior to planning permission being granted, with the exception of instances where:
- the development under construction is permitted under the provisions of the Development and Planning (General Development) Order 1999;
- the development under construction is considered to be ‘de minimis’ i.e. so minor in nature that the Department determines that planning permission is not required; or
- the time limit to take enforcement action on the development has expired (typically 6 years – see the Department’s Guide to Enforcement and Civil Penalties).
Submission Requirements
Applications for retroactive planning permission must contain the minimum requirements for DAP1 applications as detailed in the Department’s Guide to Submitting Planning Applications together with the requisite planning application fee and a further retroactive fee, as detailed under Head 21 of the Government Fee Regulations 1976.
In addition, all applications for retroactive planning permission must include an affidavit or letter signed by the applicant attesting that:
- the applicant was not responsible for the breach of planning control or did not know, and could not be reasonably be expected to have known, that the development was in breach of planning control; or
- the applicant acknowledges responsibility for the breach of planning control.
How Retroactive Planning Applications are Decided
All planning applications, regardless of whether they are retroactive, must be decided in accordance with the relevant development plan in force for that area, or any other statutory provision, such as a zoning order or special development order, which may apply to the application site, with regard being had to any representations which are received and any other relevant consideration. However, retroactive planning applications must also be decided in accordance with the provisions of section 20(2A) of the Act, as set out above.
For the avoidance of doubt, in considering whether the applicant was responsible for the breach of planning control, or did not know, or could not be reasonably be expected to have known, that the development was in breach of planning control, the Development Applications Board will typically not accept such justifications as:
1. the applicant is not well versed in planning legislation; or
2. a third party was hired to do the work and trusted to advise or obtain all necessary permissions prior to commencing the work
given that:
1. the Department of Planning has published various guidance documents on its website and is easily contactable by a number of means, including telephone, email and in-person, if any person is unsure whether planning permission and/or a building permit is needed; and
2. the responsibility for obtaining all necessary permissions lies primarily with the landowner regardless of who actually carried out the work.
Based on the above principles, the majority of applications for retroactive planning permission are refused by the Board.
Next Steps
If an application for retroactive planning permission is refused, the applicant may either:
1. appeal the decision to the Minister of Home Affairs (see the Department’s Procedure for Planning Appeals); or
2. contact the Department’s Planning Enforcement team to discuss appropriate remediation, which may comprise the removal of some or all of the works in question.
Failure to carry out either of the above within 21 days of being notified of the Board’s decision to refuse planning permission is likely to result in the Department proceeding with formal enforcement action, as detailed by the Guide to Enforcement and Civil Penalties.
A person who does not agree with a decision made by the Minister may appeal to the Supreme Court on a point of law within 21 days of being notified of the decision; the Supreme Court may accept late appeals at its discretion.
Letters of objection and/or representation should be emailed to planningfrontdesk@gov.bm referencing the PLAN or SUB number in the subject line.