Against the backdrop of the pandemic, in December 2020, the government issued a consultation until January 2021 which sought views on separate proposals including the proposal to support public service infrastructure through changes to existing permitted development rights (PDRs). You can read our briefing on the consultation proposals here: Supporting public service infrastructure delivery.
The government's response to the consultation makes clear that the new and revised PDRs will enable vital public infrastructure to respond quickly to the societal and economic effects of COVID-19, help existing sites deliver additional capacity and enable more efficient and effective use of land and thus help to deliver 'Project Speed'.
To help deliver improvements, the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021 will introduce revisions to the Town and Country Planning (General Permitted Development)(England) Order 2015 (GPDO). The changes will apply in England and the regulations are due to come into force on 21 April 2021, though the timing of when individual provisions apply vary. The changes in this briefing all come into force on 21 April 2021.
A significant change is the amendment to the Class M of Part 7 of the GDPO - public service infrastructure PDRs, to permit the erection, extension or alteration of a school, college, university, hospital, and now also prison buildings relating to:
- up to 25% of the cumulative footprint of existing buildings on site on 21 April 2021, or up to 250sqm whichever is greater
- development of new buildings is allowed up to 6m in height, unless within 10m of the boundary where development of new buildings is allowed to 5m in height
- extensions or alterations to existing buildings are limited to the height of the existing building, unless within 10m of the boundary where development is allowed to 5m in height or the height of the existing building being extended
- rooftop structures, eg plant for ventilation, are permitted up to an additional 1.5m beyond the height limit of the building as erected, extended or altered.
The amended PDRs allow for new buildings as well as extensions, but the latter must be within the same use or ancillary to the existing use. Any new development must be situated within the curtilage of the premises' boundaries.
A definition of prisons to which the PDRs will apply includes young offender institutions, but not a secure training centre or a secure college or a bail hostel. The PDRs will apply to prison buildings where the predominant use of the existing buildings on the premises is for the confinement of prisoners in closed conditions and where the buildings are located on a site with a closed perimeter. Development beyond the existing perimeter as at 21 April 2021 is excluded from the PDRs.
Other existing restrictions on development within Class M continue to apply and have not been changed by the amending regulations. The 'original building' continues to exclude buildings already erected under Part M. The provision stating 'where 2 or more original buildings are within the same curtilage and are used for the same institution, they are to be treated as a single original building in making any measurement', appears unchanged.
As with the current requirements for Class M, development is not permitted within the curtilage of a listed building. The existing Class M condition relating to development on land within national parks, AONBs, Conservation areas, the Broads, and World Heritage Sites continues to apply. This requires new buildings and extensions to be constructed using materials which have a similar external appearance to those used for the original buildings. Note that for universities, external appearance will be a prior approval matter and compliance with the condition can be expected to be assessed, see further below. In the case of schools, colleges, hospitals and prisons the developer would need to ensure compliance with the condition, but without this being subject to a prior approval process.
The amended Part 7 Class M only refers to buildings and does not make any provision for related building operations eg for waste and plant.
Note that the existing Class N of Part 7 provides PDRs for hardstanding for schools, colleges, universities or hospitals remain unchanged, but are limited to 50sqm.
No prior approval is required for schools, colleges or hospitals wishing to benefit from the extended PDRs. However, where the expansion of a school results in any increase in the school’s admission numbers, a travel plan must be submitted for the site within six months from the date the development is completed. This will need to outline a long-term management strategy that seeks to deliver sustainable transport objectives.
The often sensitive city centre location and large scale of universities was identified as a potential issue by the consultation process. Recognising this, the erection, extension or alteration of university buildings will be subject to a prior approval process setting out the application and decision requirements. The local planning authority (LPA) will need to make a determination as to whether it will require prior approval in relation to the transport and highways impacts, the design and external appearance of the development, and the development impact on heritage and archaeology.
Where an application for prior approval is required, as with other prior approval procedures, development must not begin before the LPA either determines prior approval is not required, grants prior approval or the expiry of 56 days following valid application submission, without the LPA giving a decision. Approved developments will be required to be completed within a period of three years from the prior approval date. The Explanatory Memorandum confirms that a fee of £96 will be introduced via separate secondary legislation at the first available opportunity.
Development commenced under 'general consent' – which includes PDRs - is generally liable to pay the community infrastructure levy (CIL), unless an exemption or relief applies, in those areas where a CIL charge applies. Therefore if it is intended to commence development under the PDRs it will be necessary to submit a notice of chargeable development prior to commencing the development, unless the development is less than 100sqm of net additional gross internal area. As the upper limit for the new PDR is above 100sqm it is likely that the requirement to serve a notice may apply in at least some cases. The actual CIL liability will depend on the proposed development and if any relief or exemption applies. Note that the calculation of CIL and the application of reliefs and exemptions is complex and will require an assessment of the specific circumstances in each case. If the proposed development may qualify for relief or an exemption, it is advisable to contact the authority as soon as possible and before commencing development, as in most cases relief cannot be granted after development has commenced.
Other changes: expanded PDRs for ports, canals and other water related transport systems
At the end of 2020 and in the government's response to its consultation on the Freeports, it committed to exploring expanding PDRs to bring seaports in line with airports, to use the Freeports bidding process to encourage the use of Local Development Orders (LDOs) where appropriate, and consider reviewing the National Policy Statement for Ports (NPSP) to further support port development.
Existing PDRs: border facilities
A Border Facilities and Infrastructure (EU Exit) (England) Special Development Order was given approval in response to Brexit and came into force on 24 September 2020. The Order applies in England and grants temporary planning permission for development consisting of the use of land for the stationing and processing of vehicles (particularly goods vehicles) entering or leaving Great Britain, and the provision of associated temporary facilities and infrastructure. Development permitted by the order can only be carried out by, or on behalf of, a border department named in the order. The development must end by 31 December 2025, and all reinstatement works must have been completed by 31 December 2026. This is more narrow in application with the new PDR detailed below for port undertakers having wider application.
An accompanying explanatory memorandum states that any development that would have significant effects on the environment is not permitted nor is development permitted on land within sensitive areas such as protected environmental habitats, National Parks, AONBs, and European sites of ecological importance.
Existing PDRs- Class B of Part 8
Existing PDRs permit development, on operational land, by the statutory undertakers or their lessees in respect to dock, pier, harbour, water transport, canal or inland navigation undertakings, if it is required:
- for the purposes of shipping.
- in connection with the embarking, disembarking, loading, discharging or transport of passengers, livestock or goods at a dock, pier or harbour, or with the movement of traffic by canal or inland navigation or by any railway forming part of the undertaking.
The existing PDRs do not permit development if it consists of (a) the construction of a hotel, or a bridge or other building not required in connection with the handling of traffic or (b) the construction or erection otherwise than wholly within the limits of the dock, pier or harbour of an educational building or a car park, shop, restaurant, garage, petrol filling station or other building provided under transport legislation.
For the purposes of the PDRs, references to the construction or erection of any building or structure include references to the reconstruction or alteration of a building or structure where its design or external appearance would be materially affected. The reference to operational land includes land designated by an order made under relevant sections of the Harbours Act 1964 and which has come into force.
The amending regulations will expanded the PDRs in Class B of Part 8, both widening the scope of the types of development that can be undertaken and who can undertake it to bring it into closer alignment with the provisions relating to airports.
The amended PDRs will permit development in connection with the provision of services and facilities, and explicitly includes the erection or alteration of an operational building. This will give the operators of dock, pier, harbour, water transport, canal or inland navigation undertakings greater flexibility to undertake development.
It also allows for development to be undertaken by the statutory undertaker’s agent of development, giving further flexibility for port operators to allow for work to be undertaken by others on their behalf.
The amendments will additionally allow permitted development to be undertaken also by the statutory undertaker's agent of development, ie providing further flexibility for port operators to allow for permitted development to be undertaken by others on their behalf.
To give the LPA opportunity to comment on the plans and impacts, the extended PDR and also the current PDR provisions, will now be subject to the condition to consult the authority prior to any development taking place, although the following type of urgent development is exempt from the condition to consult if it:
- is urgently required for the efficient running of the dock, pier, harbour, water transport, canal or inland navigation undertaking.
- consists of the carrying out of works, or the erection or construction of a structure or of an ancillary building, or the placing on land of equipment, and the works, structure, building, or equipment do not exceed 4m in height or 200 cubic metres in capacity.
Previously there was no need for there to be any prior consultation prior to undertaking any development within this right. However the two exemptions should provide operators with a level of flexibility.
Further changes outside of the amending regulations
As part of the wider strategy to support the development of hospitals, schools, further education colleges and prisons, the government's consultation additionally sought views on introducing a faster planning application process for public service development, including development on new sites, which were outside the scope of the proposed PDR changes.
In its consultation response the government has confirmed that it will proceed with its plans to streamline the application process for 'major development' and the proposals it has confirmed it will be taking forward are:
- a reduced 10 (from 13) week statutory determination period (agreed extensions will be allowed)
- a reduced statutory minimum of 18 calendar day statutory consultation period
- requiring LPAs to notify the Secretary of State when they anticipate making a decision, and
- clarifying that paragraph 94 of the NPPF applies which supports the development of schools.
These measures are not part of the regulations amending the PDRs and are likely to be implemented principally through amendments to the Town and Country Planning (Development Management Procedure) (England) Order 2015.
The Government has stated it intends to introduce these changes by the end of August 2021.
What effect may the new PDRs for public service infrastructure and ports have?
The new PDRs, by providing additional flexibilities will see the government delivering on a Manifesto commitment to support the delivery of important public infrastructure and allow this to be delivered more quickly.
The government also appears to have taken into account some of the concerns raised in response to the consultation by, for example, introducing a prior approval process to universities given their scale, potential scope of the footprint of a university, and often sensitive locations across city and town centres and campuses close to or consisting of important heritage and archaeology assets.
While increased flexibility and a streamlined process may come at the price of reduced community consultation for example, perhaps that is, if not acceptable, a necessary trade-off in circumstances where resources are constrained, there is a demonstrable need and the impacts are likely to be limited?
A number of operators are also likely to welcome the added flexibility to reconfigure existing buildings, which is something many organisations have had to deal with in responding to COVID-19.
The new flexibilities will be welcomed by port operators, but they will also need to remain alert to ensure that any development proposed under the new PDRs does not fall foul of Habitats or Environmental Impact Assessment legislation and that it is not contrary to a condition on any existing planning permission.
The above is a summary only and reference to the regulations should be made in each case and legal advice sought if appropriate. We will be happy to help and please do not hesitate to contact us, or your usual contact at Womble Bond Dickinson LLP.