Permitted Development Rights Update: Responding to needs in Covid-19 times
Permitted development rights (PDRs) are used as a means of enabling certain types of development and changes of use to go ahead without the need for planning permission. This offers a quicker, cheaper[1] and less scrutinized avenue for securing development than through the full planning application route. Indeed, there are a number of forms of agricultural development that benefit from PDRs. This article discusses the latest changes to permitted development brought about as a response to Covid-19. In doing so, it touches not only upon the new additions to permitted development in England and Wales but the differences between the two jurisdictions.
The devolution settlement for Wales has had the effect of clouding an already murky area of planning law by devolving planning to Wales. This has resulted in increasing divergence between England and Wales in the extent and scope of PDRs. In response to the Covid-19 pandemic there has been significant movement in planning law, firstly by Welsh Government and the UK Government separately enabling development to either prevent or respond to an emergency and secondly the current discussions concerning the further extension to PDRs in England to jump start house building, address the housing supply shortage, diversify existing and underused buildings and support the UK economy following the lifting of coronavirus restrictions[2]. It seems like an appropriate time to take stock of these changes to PDRs and those that are on the horizon.
In Wales, The Town and Country Planning (Use Classes) Order 1987, SI 1987 No.764 as amended and The Town and Country Planning (General Permitted Development) Order 1995, SI 1995 No.418, as amended establish PDRs for Wales. Whilst in England the Use Classes Order remains part of the framework a new consolidated Order replace the 1995 Order, the Town and Country Planning (General Permitted Development) Order 2015, SI 2015 No.596 was produced. This has since also been amended a number of times since its introduction five years ago. Both sets of legislation set out under Schedule 2 various uses of land and buildings as well as types of building development that do not require planning consent. Generally, these developments are not considered to pose a risk of harm and consequently do not need to undergo a thorough planning determination process as other developments would be required to under s.57 of the Town and Country Planning Act 1990. At its most simple, PDRs are authorised as of right, subject only in some cases, to a prior approval process. Where prior approval is required, an application must be submitted to the relevant Local Planning Authority (or National Park Authority where the land or building subject to the proposal is located in a National Park, referred to in England as Article 2(3) land and in Wales as Article 1(5) land). Such notification must be provided in advance of any works on the site. The process does not work retrospectively[3]. The role of the Local Authority is restricted to consideration of only the prior approval matters and general consideration of the overarching land use document for England, the National Planning Policy Framework in England and the National Development Framework for Wales in Wales[4]. Prior approvals which are not determined by the LPA within 56 days are deemed approved, however since August 1st 2020 this timeframe can be extended where there is written agreement between the Local Authority and the applicant.
It is clear that England and Wales now operates under different pieces of legislation with regard to PDRs and therefore it cannot be assumed that what can go ahead in England without planning permission can also go ahead in Wales without permission. Never is this so apparent than presently as England prepares for the coming into force of new PDRs at 9am on 31st August 2020 following the adoption of The Town and Country Planning (General Permitted Development) (England) (Amendment) (No.2) Order 2020, SI 2020 No.755.
One of the fundamental mechanisms used separately by both the Welsh Government and the UK Government to put in place the infrastructure needed to respond to the coronavirus epidemic was permitted development legislation. Consequently the 1995 Order in Wales and the 2015 Order in England were amended to provide a streamlined processes enabling the planning system to respond to emergency development requirements by inserting a new Part 12A into Schedule 2. As such development for the purposes of (a) preventing an emergency; (b) reducing, controlling or mitigating the effects of an emergency; or (c) taking other action in connection with an emergency can go ahead without the need for planning permission[5]. It was this legislation for example which facilitated the lawful changes to the use of the Excel Exhibition Centre in London into the NHS Nightingale Hospital providing 500 intensive care beds[6]. Interestingly, whilst similar in scope the England Order, The Town and Country Planning (General Permitted Development) (Amendment) Order 2020[7], includes development by local authorities and health service bodies whereas in Wales The Town and Country Planning (General Permitted Development)(Amendment)(Wales) Order 2020[8] refers only to emergency development under Part 12A undertaken by a local authority. It was only with The later Town and Country Planning (General Permitted development)(Amendment)(No.2)(Wales) Order 2020 SI 2020, No.420 (W.90) which came into force on April 10th 2020, inserted Part 3A into the 1995 Order allowing for the temporary building and change of use for public health emergency purposes where the development is undertaken by or on behalf of the NHS body.
The Town and Country Planning (General Permitted Development) (England) (Amendment) (N.2) Order 2020, SI 2020 No. 755 introduced into PDRs in England only a much discussed and rather controversial development[9], namely the deregulation of upwards extensions under Part 1 Class AA of Schedule 2. Subject to certain conditions such as the dwellinghouse not being located within Article 2(3) land, Part 1 Class AA provides for the upwards enlargement of a dwelling house. Where the dwellinghouse consists of two or more storeys an additional two storeys is permitted and where the existing dwellinghouse is one storey one further storey is allowed. However, the PDR is subject under Article 3(a) to prior approval by the local authority. The matters considered through this process are (i) residential impacts in adjoining premises; (ii) the external appearance of the dwellinghouse, design and architectural features; (iii) air traffic and defence asset impacts of the development and (iv) impact on a protected view. So this new PDR may not be as simple and streamlined an approach to increasing internal floor space of existing dwellings as it first appears to be.
In addition, Part 20 is also extended to include Class AA which allows for the construction of up to two additional storeys of new dwellinghouses immediately above the topmost storey on a detached building used for commercial purposes including shops (Class A1), financial and professional services (A2), restaurants or cafés (Class A3), officess (B1(a)), betting offices, pay day loan shops, launderettes or a building in a mixed use combining those uses above or a use falling within a dwellinghouse (C3). This PDR does not apply in a number of specific circumstances including but not limited to: where the existing building is less than three storeys in height above ground level; the building was constructed before 1st July 1948 or after 5th March 2018 or the new dwellinghouses created by the additional storeys are not flats. Such development is subject to prior approval by the LA who will have regard to ten material considerations in assessing the application: (a) transport and highways impacts; (b) air traffic and defence asset impacts of the development; (c) contamination risks in relation to the building; (d) flooding risks in relation to the building; (e) the external appearance of the building; (f) the provision of adequate natural light in all habitable rooms of the new dwellinghouses; (g) amenity of existing building and neighbouring premises; (h) noise impacts; (i) impacts associated with the increase or introduction of residential uses in the area on carrying on any trade, business or other use of land; (j) impact on protected views. Similar PDRs have likewise been established for new dwellinghouses on: terrace buildings in commercial or mixed use; terraced buildings in use as dwellinghouses and detached buildings in use as dwellinghouses. The purpose of such inclusions to the existing PDRs in England is to respond, albeit retrospectively, to the ongoing housing shortage and the need to diversify the currently failing high streets[10].
A further response to the high street crisis through the system of PDRs has also come in the shake up of the Use Classes Order in England, through the introduction of the Town and Country Planning (Use Classes)(Amendment)(England) Order 2020. This sees a new Class E created combining commercial, business and services including shops, financial services, restaurants and cafes,, office use classes as well as nurseries, health centres and gyms. This entitles a mix of uses within this class without the need for planning permission, providing much greater flexibility of use of high street premises. Such an adaptive and wide approach to Class E is set, at least in theory, to reduce vacant units in high street locations in particular, increasing the divergence of offering in these areas and rejuvenating high streets in way that responds more effectively to the needs of as E-commerce society[11].
The Town and Country Planning (General Permitted Development) (England)(Amendment)(No.3) Order 2020 SI 2020, No.756 inserted Class ZA demolition of buildings and construction of new dwellinghouses in their place. This entitles developers to undertake works of demolition of buildings comprising either a single purpose built block of flats or any other single detached building comprising of premises established for either office use, research development or industrial processes as existing on March 12th, 2020. The replacement building must be a single building comprising of either a purpose-built detached block of flats or a purpose-built detached dwellinghouse. Again, there are a set of conditions in Article ZA1 including that the land covered by the curtilage and the old building does not form part of a listed building or land within its curtilage and the building must have been vacant for in excess of six months prior to the application for prior approval.
No such extensions to PDRs have, as yet, been introduced by the Welsh Government. There is certainly a growing disparity in the use and reliance placed upon the permitted development legislation between the two Governments, with the UK Government perpetually seeking to alleviate what they see as planning obstacles to economic growth by funneling development into PDRs. Perhaps this can most keenly be seen with some of the additional agricultural PDRs that farmers enjoy in England such as Class Q, R and S. These allow for the change of use of agricultural buildings to residential use, flexible use such as shops, cafes, storage and amenity and leisure and state funded schools and nurseries respectively, subject only to the conditions and limitations set out in the Order. Similar to the challenges in recreating a resilient and sustainable high street, agricultural businesses are under pressure to diversify and adapt to the changing economic, social and environmental challenges not least as a consequence of Covid-19 and Brexit. Although not a full solution, permitted development legislation is one key tool in supporting these changes.
PDRs are a useful mechanism within the planning system, deregulating, at least to an extent, a raft of development which would otherwise need to go through the full planning application and determination process. However, the rapidity of changes to permitted development, particularly in England, results in a complex web of development with varying requirements within the planning regime. Depending upon a multitude of conditions and exceptions such development may fall within the scope of permitted development or may be subject to the prior approval process. Furthermore, other restrictions can be placed on PDRs such as Article 4 Directions which withdraw certain PDRs in an area or the location of the proposal site being in a conservation area or in proximity to a listed building. As such, it is advisable to first seek professional advice to ensure any development undertaken is regularised and lawful. Agriadvisor offers planning consultancy and land agent services as well as services in relation to wider land law matters and all other aspects of law.