New permitted development rights - a taste of things to come?
Permitted development rights (PDRs) have existed in the planning system since the Town and Country Planning Act 1947. Section 59(1) Town and Country Planning Act 1990 states that the Secretary of State may, by development order, grant deemed planning permission for specified development or classes of development.
PD rights are usually granted through the General Permitted Development Order (GPDO), with the most recent being the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended). There have been a number of significant extensions to PD rights over the last decade, in particular, those allowing for the creation of new residential dwellings through PDRs for the change of use of buildings formerly in office, agricultural, storage, light industrial, retail and various associated sui generis uses into residential 'dwelling house' use.
In June and July the Government has published new regulations and orders significantly expanding the use of PDRs to allow upward expansions of existing homes and the demolition and rebuilding of vacant homes and offices. Coupled with reforms to the use classes order which allow for some commercial uses to change without the grant of planning permission, these new orders have been met with widespread concern due to the implications they give rise to on the plan-led system and the erosion of control and democracy in planning decision-making.
Further extension of PDRs
The new PDRs recently announced by the government include:
- Class A in Part 20 of Schedule 2 of the GPDO, which permits self-contained flats to be constructed on top of certain existing and purpose-built blocks of flats;
- Class AA in Part 1 of Schedule 2 of the GPDO, which permits the upward expansion of certain dwellinghouses;
- Class AA in Part 20 of Schedule 2 of the GPDO, which permits the construction of up to two new storeys of flats on top of certain detached buildings in commercial or mixed use (including residential use);
- Class AB in Part 20 of Schedule 2 of the GPDO, which permits the construction of new flats on top of certain terraced buildings, including semi-detached buildings;
- Class AC in Part 20 of Schedule 2 of the GPDO, which permits the construction of new flats on top of certain terraced dwellinghouses, including semi-detached dwellinghouses;
- Class AD in Part 20 of Schedule 2 of the GPDO, which permits the construction of new flats on top of certain detached dwellinghouses; and
- Class ZA in Part 20 of Schedule 2 of the GPDO, which permits the demolition of a single detached building in existence on 12 March 2020 that was used for office, research and development or industrial processes, or a free-standing purpose-built block of flats, and its replacement by an individual detached block of flats or a single detached dwelling house within the footprint of the old building.
Class A in Part 20 of Schedule 2 will take effect from 1 August 2020, whilst the remaining changes will come into force on 31 August 2020.
There are a long list of exclusions and conditions to the new PDRs that need to be complied with which will limit the number of buildings that can benefit from the PDRs. The complexity might deter some developers although there are clear and obvious costs and time benefits if development is carried out under the PDRs, rather than through an application for full planning permission.
Furthermore, the new PDRs are also subject to the process of seeking 'prior approval' from the relevant LPA. The prior approval process is complex, however, some of the headlines are:
- unlike Class O in Part 3 of Schedule 2 of the GPDO (which permits change of use from office to residential), LPAs can consider as part of the prior approval process (amongst others) the external appearance, the adequacy of natural light in all habitable rooms in the new development (except in the case of Class AA in Part 1 of Schedule 2 of the GPD) and the impact on the amenity of neighbouring premises, including overlooking, privacy and loss of light;
- as with Class O, LPAs can consider under Classes AA, AB and ZA in Part 20 of Schedule 2 of the GPDO impacts of noise from any commercial premises on the intended occupiers of the new dwellinghouses; and
- class ZA also allows the impact of residential use into the relevant area and the impact on heritage and archaeology.
However, LPAs cannot consider the principle of the change of use or operational development, nor can they consider the breadth of other planning matters that would be considered through a full planning application having regard to a local plan policy framework. In particular, site allocations and the provision of affordable housing, as set out in the local plan, will be irrelevant.
Criticisms and concerns
Whilst some will, no doubt, welcome the PDRs and the ability to provide housing or bring forward new developments more easily on commercial sites, some in the sector have real concerns.
The Royal Town Planning Institute (RTPI), Royal Institute of British Architects (RIBA), Royal Institution of Chartered Surveyors (RICS), and the Chartered Institute of Building (CIOB), representing a combined membership of over 175,000 skilled professionals in the built environment, sent an open letter to Robert Jenrick MP, the Secretary of State for Housing, Communities and Local Government expressing their concerns about the extension of PDRs. The ability to demolish and rebuild on existing sites – if implemented without significant safeguards – will lock in more unacceptable standards of development, the consequences of which we will live with for generations and which will need to be rectified later at great expense. The letter also reiterates the comments made by the Building Better, Building Beautiful Commission that PD rights had inadvertently created "future slums". In addition, a Government commissioned independent report, published also on 21 July 2020, showed that only 22% of homes created under PDR met national space standards, and were, in general, of worse quality in relation to a number of factors widely linked to the health, well-being and the quality of life of occupants.
There are also concerns about the potential impact on skylines and the lack of provision of affordable housing contributions and other section 106 infrastructure obligations, including those relating to local transport schemes and green space, which cannot be gained from PDR schemes. Furthermore, the PDRs undermine site allocations and the LPAs ability to determine where specific uses should be located.
The ongoing and significant expansion of PDRs calls into serious question the relevance of local plans and the ability of LPAs to set policy and determine what sort of development is right for their area. There has been a rapid expansion in PDRs over the last decade, and combined with the need and urgency to deliver housing, together with the increased vacancies of commercial properties within towns and cities, it is anticipated that more PDRs will be granted in the future. What we appear to be witnessing is a piecemeal overhaul of the planning system, which may have significant and lasting impacts on the built environment and the provision of affordable housing and infrastructure to meet community needs.