New permitted development rights (PDR) for housing

Back in 2017 we saw the temporary permitted right to change from office use to residential use made permanent.

In 2019 we saw more freedoms with further rights to change shops and other high street uses to offices and residential uses within limits and with prior approval of the local planning authority (LPA).

Now major new permitted development rights (PDRs) are being brought forward (in addition to the Use Classes changes which we explored in our recent article found here).

We consider the new PDRs in summary below.

So what is happening?

There are three sets of new regulations as follows:

1. A first phase of provisions relate to the upwards extension of buildings allowing existing purpose-built detached blocks of flats to extend upwards to create new self-contained homes. That new PDR was introduced by The Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations SI 2020/632 which came into force on 1 August 2020. This note does not consider this PDR further. 

2. A second phase of amendments are found in the Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order which comes into force at 9.00 am on 31 August 2020. The amendment order amends the Town and Country Planning (General Permitted Development) (England) Order 2015 (the GDPO) and introduces new permanent PDRs in England.

• Firstly, a new permanent PDR to allow existing houses to be extended to provide more living space by constructing additional storeys
• Secondly, a permanent PDR to allow the construction of additional storeys on free standing blocks and on buildings in a terrace that are houses or in certain commercial uses, and in mixed uses with an element of housing, to create additional self-contained homes.

3. A third phase of amendments are found in the Town and Country (General Permitted Development) (Amendment) (No.3) Order which comes into force at 10.00 am on 31 August 2020. In contrast to the extension of properties to develop self-contained homes, it establishes PDRs (new Class ZA), subject to certain conditions and prior approvals to allow for the demolition of specific types of buildings with the construction of residential buildings in place.

We have provided below a summary table of the main changes for the regulations set out in 2 above and a brief explanation of the regulations set out in 3 above. However, be warned the regulations are inordinately complex and detailed advice should be taken where development schemes are being contemplated.

What are the implications for property professionals?

The fact that these PDRs have been granted does not mean that taking advantage of them will be easy in practice. They only affect the planning aspect of the development and the potential obstacles presented by other parties will remain. For landlords of residential blocks which are let to tenants any development may fall foul of a covenant for quiet enjoyment with the residents. Landlords will have to carefully examine any existing leases to check whether appropriate development rights have been reserved. Furthermore, any upward expansion may also affect the passage of light to surrounding buildings and so a landlord will need to undertake a careful investigation of potential rights to light and ensure that any enforceable rights are released or appropriate insurance is obtained. Finally a landlord desiring expansion will have to be mindful of any other contractual mechanisms with third parties which may potentially stymie the development, such as restrictive covenants.

The commercial impact of the deregulatory changes to should not be understated. The new orders herald a reduction in cost and the time burden placed on developers in making planning applications. It is thoughts that the reduced overall costs for applications and expedited approval will speed up the delivery of housing across the country. However great care is needed to ensure that developments fit squarely within the new rights and the need for professional advice is likely to increase.

The Government anticipates substantial increases in value for existing home owners. The need for developments has become more apparent with the increased shortage of housing so that the ability to extend upwards should give an uplift in property values as developers are able to capitalise on and release the value of extensions in certain buildings. Thus it is anticipated that the regulations should provide for substantial opportunities to increase land value for home owners and the potential for a substantial influx in construction work for property developers.

The aim of the new demolition and rebuilding PDR is to support regeneration through the residential redevelopment of vacant and redundant buildings that no longer effectively serve their original purpose, support housing delivery and to boost housing density. 

Summary of the changes

New PDRs to extend existing houses and to construct new houses

A summary of the four new PDRs to create self-contained homes is set out in the table below. The PDRs do not apply in Conservation Areas, National Parks and the Broads, AONBs or SSSIs, or if the house or building is a listed building or a scheduled monument. Houses would also not benefit from permitted changes to houses in multiple occupation.

The rights are subject to obtaining prior approval from the LPA which will consider an extensive range of matters. The LPA will also notify any owners or occupiers adjoining the proposed development and various statutory undertakers. The LPA is required to make a decision on an application for prior approval within 8 weeks. Reflecting the significance of the matters under consideration, if a decision has not been made within 8 weeks then the applicant has a right of appeal to the Secretary of State for non-determination of the prior approval application, but there is no provision for deemed consent.

Note that all development, whether granted permission following a planning application or through a national PDR is also required to comply with the Building Regulations as amended.

New PDR to demolish and rebuild

The new right (Class ZA, Part 20, Schedule 2, GPDO), will apply to vacant and redundant free-standing buildings that fell within the B1(a) offices, B1(b) research and development, B1(c) industrial processes (light industrial), and free-standing purpose-built residential blocks of flats (C3) use classes on 12 March 2020. The new PDR therefore does not apply to terraced buildings, detached dwellinghouses, or to mixed use buildings other than those referred to in the previous sentence.

To provide that the PDR applies to buildings that are vacant and redundant and are no longer suitable for modern use, the regulations provide that the PDR will apply to those built before 1 January 1990. The buildings must have been entirely vacant for at least six full months prior to the date of the application for prior approval.

The new PDR provides for the necessary building works to demolish the existing (old) building and then to build a new residential building. It does not allow for separate demolition without subsequent construction of a new residential building, or for the separate construction of a new residential building on previously cleared land unless it was provided for under the new PDR.

The PDR will not apply to National Parks, Conservation Areas, the Broads, AONBs, SSSIs, or World Heritage Sites. The right does not apply if the building is a listed building or scheduled monument (or within the curtilage of either). Safeguards for agricultural tenants are included, and also e.g. in respect of safety hazard areas and military explosive storage areas.

The PDR allows for redevelopment of a single new building within the footprint of buildings with a footprint of up to 1,000 sq m, and with a maximum height of 18m. It does not apply to part of a building, nor does it allow for the demolition of more than one building within the curtilage and the incorporation of any additional footprint.

As above, the right is subject to obtaining prior approval from the LPA which will consider similar matters for the four new PDRs mentioned above as well as for the method of demolition, and the impacts of the development on heritage and archaeology.

As a default assumption, it is provided that development that is screened as requiring an EIA is not permitted. The LPA will also notify any owners or occupiers adjoining the proposed development and statutory undertakers. 

The LPA is required to make a decision on an application for prior approval within 8 weeks. Reflecting the significance of the matters under consideration, if a decision has not been made within 8 weeks then the applicant has a right of appeal to the Secretary of State for non-determination of the prior approval application, but there is no provision for deemed consent.

The development must not begin before the receipt in writing of the grant of prior approval. The development, consisting of both demolition and replacement build, must be completed within three years of the date of the grant of prior approval. Any new dwelling created under Class ZA is to remain in use as a dwellinghouse and for no other purpose, except to the extent that the other purpose is ancillary to the primary use as a dwellinghouse. 

All development, whether granted permission following a planning application or through a national PDR is required to comply with the Building Regulations, as amended, including in respect of fire safety.

Application fees

Finally, it is worth noting that any application for prior approval will of course need to be accompanied by the correct application fee.

Much increased fees will be payable in respect of applications under Part 20 when the new fees regulations come into force; the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations will amend the existing 2012 fees regulations. At the time of writing the amending regulations are still in draft, so it remains to be seen if they will be in force by 1 September 2020.

The amending regulations will provide for the application fee payable on a prior approval application for new flats created under Part 20, Schedule 2 GDPO. The fee introduced for such applications for prior approval is £334 per dwellinghouse for development proposals of 50 or fewer new dwellinghouses and, for development proposals of more than 50 new dwellinghouses, £16,525 plus an additional £100 for each dwellinghouse in excess of 50, subject to a maximum fee of £300,000.

Legal challenge

It has recently been reported that Campaign group 'Rights: Community: Action Ltd', has issued a pre-action protocol letter to the Secretary of State for Housing, Communities and Local Government in respect of the proposals to introduce the new PDRs and changes to the use classes. Please see our briefing on the proposed changes to the Use Classes Order and the new Class E here.

The grounds of claim include that in making the relevant statutory instruments (SI 755, 756 and 757), the Government failed to carry out a strategic environmental assessment, failed to comply with its public sector equality duty, and failed to take account of consultation responses and other material considerations. The letter requests a response from the Secretary of State by 26 August 2020. Watch this space!

If you have any questions please don’t hesitate to contact us, or your usual WBD contact.