06 Jan 2021

On 3 December 2020 The Ministry of Housing, Communities and Local Government (MHCLG) published a consultation on measures to support housing delivery and the provision of public service infrastructure. The consultation proposes and seeks views on:

  1. A new permitted development right (PDR) for the change of use from Commercial, Business and Service use (new Class E) to residential (Class C3).
  2. Simplifying and consolidating existing PDRs following recent changes to the Use Classes Order.
  3. Expanding existing PDRs for educational establishments and hospitals, and extending them to prisons.
  4. A modified planning application and determination procedure for more substantial school, college, university, hospital and prison development for which planning permission is needed.

The changes would apply in England only. The consultation runs until 28 January 2021.

This briefing considers proposals 1. and 2. in more detail below. The proposals in 3. and 4. are considered in a further briefing which can be found here.

Housing delivery with a new national PDR from Class E to residential

In response to systemic changes taking place on the high street and the effects of the COVID-19 pandemic the Government introduced the new Class E in the summer 2020. The consultation document notes that "changing consumer behaviour [lesser footfall and shift to online sales] presents a significant challenge for retailers". It suggests that the 12 month period from June 2019 to June 2020 saw a net reduction of 5,350 units in town centres in England. 

Government structural support has been allocated, including investment from the £3.6bn Towns Fund with over £80m of this funding brought forward in 2020 via the Future High Streets Fund to support immediate improvements in town centres and to support local areas in England to renew and reshape town centres and high streets in a way that improves experience, creates jobs, and ensures future sustainability.

The current Town and Country Planning (General Permitted Development) (England) Order 2015, SI 2015/596 (GPDO) already allows for the change of use from office to residential (Part 3, Class O of Schedule 2 to the GPDO), and from retail etc. to residential (Part 3, Class M, GDPO). Under transitional provisions introduced in conjunction with the recent changes to the Town and Country Planning (Use Classes) Order (UCO), these PDRs will continue to apply until 31 July 2021.

The consultation states that the Government wishes to provide additional flexibility and to attract additional footfall from new residents to struggling high streets and to support housing delivery, particularly in town centres.

The proposed right

The proposed new PDR would allow for the change of use from any use, or mix of uses, within Class E to residential use (C3) without the need for a planning application, from 1 September 2020. The current rights for the change of use from office to residential would be replaced by the new PDR. 

It is proposed that there be no size limit on the buildings that can benefit from the new PDR. The right would allow for the building, or part of the building, to change use.

Limitations and conditions

The consultation proposes that the new right would be subject to the following:

  • Only premises which were in use class E on 1 September 2020 will benefit from the right
  • The right would not apply to EIA development
  • The right would not apply to development in areas of SSSI, to listed buildings and land within their curtilage, sites that are or contain scheduled monuments, safety hazard areas, military explosives storage areas and sites subject to an agricultural tenancy
  • The right would also not apply in AONBs, the Broads, National Parks, areas specified by the Secretary of State for the purposes of section 41(3) of the Wildlife and Countryside Act 1981, and World Heritage Sites.

Note that it is proposed that the new right would apply in conservation areas.

Prior approval

Applications for prior approval would have to be accompanied by detailed floor plans showing dimensions and proposed use of each room, including the position of windows, information necessary for the consideration of the matters for prior approval, and a fee per dwelling house of £96, capped at a maximum of the fee for 50 dwellings.

A number of matters for local consideration through the prior approval process are proposed:

  • Flooding, to ensure residential development does not take place in areas of high flood risk
  • Transport, particularly to ensure safe site access
  • Contamination, to ensure residential development does not take place on contaminated land, or in contaminated buildings

To ensure appropriate living conditions for residents:

  • Noise impacts from existing commercial premises on the intended occupiers
  • Fire safety
  • Provision of adequate natural light in all habitable rooms.

To ensure new homes are in suitable locations:

  • In an area the authority considers is important for heavy industry and waste management, impact on the intended occupiers from the introduction of residential use
  • In conservation areas, impact of the loss of the ground floor use to residential.

Before setting out some thoughts on these proposals and for completeness we summarise immediately below the proposal to review or consolidate existing PDRs across the GDPO.

Consolidation and simplification of existing PDRs

As recently as 1 September 2020 significant changes to the UCO came into effect creating the new Class E as well as the new Class F1 (Learning and non-residential institutions), and F2 (Local Community). Read our briefing on new Class E here.

The current consultation now acknowledges that the earlier changes and the ones now proposed make it necessary to review and update references to use classes throughout the GDPO. Government's intention is that in carrying out the review it will also simplify and rationalise the existing rights with a view to bringing forward appropriate legislative amendments before 31 July 2021. It expects to identify rights falling into broadly the following categories:

  • those which are no longer required and can be revoked e.g. Class D no longer serves a purpose since Classes A1 and A2 are now within the same broad Class E and change of use from a shop to a financial/ professional service no longer needs planning permission via the PDR
  • those where no amendment is necessary, e.g. Class L small HMOs to dwelling house and vice versa because the right is unchanged by the recent and now proposed amendments to the UCO
  • those replaced by the new proposed PDR from Class E to C3, e.g. Class O offices to dwelling houses if the proposals in the current consultation are taken forward
  • a number of existing PDRs permit a change of use to one or more uses now within Class E. These will require detailed consideration and it is likely that many could be consolidated and simplified with changes made to the detail of the limitations in respect of size and matters for prior approval.

The consultation confirms that there is no intention to make any changes to 'sui generis' uses or the recently introduced Part 20 rights to construct new homes: extending buildings upwards, and demolition and rebuild. 

Comment

The consultation states that in the 5 years to March 2020, the current PDRs for the change of use provided 72,687 new homes, circa 14,000 p.a. average. Government anticipates that significantly greater numbers could be achieved if the proposals are implemented. 

The proposed changes are deregulatory and the new PDR would go significantly beyond existing rights, allowing former restaurants, indoor sports centres, and crèches etc. to benefit from the change of use to residential under PDRs for the first time.

More buildings would be in scope as they would no longer be required to be in use on 29 May 2013. Similarly, more shops and financial professional services premises would be able to benefit from this right than under the existing Class M right as it is proposed to have no size limit; and buildings would not be required to have been in use on 20 March 2013.

It is difficult not to think that the Government may be trying to address two problems with one proposal. The Conservative manifesto set, not a commitment, but a "target of 300,000 homes a year by the mid-2020s", "at least a million more homes, of all tenures, over the next Parliament – in the areas that really need them." Spread over the 5 year term that's 200,000 (per annum), but one look at the housing completions and starts from National Statistics reveal significant shortfalls, not least in part caused by the pandemic. 

In the summer the Government consulted on proposals to amend the standard method for assessing housing numbers, changes which would have significantly raised housing targets. The consultation was met with a massive political backlash and government response published on 16 December 2020 confirmed that government would not be proceeding with the specific changes to the standard method consulted. Statements from Robert Jenrick in parliamentary debate on town regeneration (16.11.2020) revealed that government would in future be looking to urban centres to deliver additional housing,"COVID-19 presents great opportunities for the repurposing of offices and retail. We need to seize that moment and ensure that we get more housing in our town centres. That is the way that we will drive footfall, and we will turn empty shops into thriving homes."

The consultation states that government wants to ensure that the new PDR allows for "appropriate residential development" and also ensures that there is "opportunity for local consideration" and for "the community to make representations". 

This is difficult to reconcile with the way the prior approval process works. Where prior approval applies, the permission for development has already been granted by the development order. Unlike planning applications, prior approval applications can only be assessed on specific matters identified within the GDPO. This can make the process difficult for an applicant, in particular in trying to ascertain the scope of the matters for consideration on e.g. how the implications in conservation areas and areas of heavy industry and waste management will be assessed; what will be the appropriate reference points for assessing impact? Lack of clarity on how the impact assessment will be made makes it equally difficult to make valid representations on an application. 

Principally conceived for relatively non-complex and uncontroversial development it remains to be seen if the process is robust enough to be attractive to developers and effective to deliver larger and more controversial residential development in England's cities.

The consultation confirms that protections in respect of pubs, including those with an expanded food offer, theatres, and live music venues, all of which are outside of Class E, continue to apply and a full planning application would always be required for the change of use to or from such uses.

It is not yet clear whether the proposed Infrastructure Levy would also apply to the new PDRs; the consultation states that consideration is ongoing and that further announcements will be made in due course. What is clear however is progressing development through the PDR regime does not also assist with the delivery of affordable housing which continues to be in demand. 

Finally, the consultation states that government anticipates that the review and update of the GPDO will be a "significant and complex exercise" requiring consideration of no less than 49 rights affected across the entire Order…

Watch this space!