Monday, 12 April 2021

Government Presses Ahead with Sweeping New Permitted Development Rights


The government is pressing ahead with its plans to allow a new Permitted Development (PD) right in England to allow for a change of use from Commercial, Business and Service Use (the new broad Use Class E) to residential use (Use Class C3) without the need to submit a planning application.

This will go significantly beyond existing rights, allowing, as well as retail, places such as restaurants, medical facilities, indoor sports, gyms and creches to benefit from the change use to residential under PD rights for the first time.

From 1 August 2021, when the new PD right takes effect, a change of use from Class E to residential will only require prior approval.

Prior approval is a more limited process than applying for full planning permission.

Councils will consider transport (particularly safe access); contamination; flooding; noise; adequate natural light; the impact on the new residents from nearby industrial, waste management, storage and distribution uses; and certain losses of nursery or healthcare services.

In a conservation area, where it is proposed to change the use of the ground floor, prior approval will assess the impact of that change of use on the character or sustainability of the conservation area.

To qualify for the new PD right, a building must have been vacant for at least 3 months immediately before the date of the application; must not contain more than 1,500 square metres of floorspace; and must have been used for at least 2 years as Class E or its predecessor use classes.

These constraints were introduced following the consultation the government launched back in December.

As is normally the case with PD rights, the new right only applies to a change of use.

However, if external alterations are required, for example new doors and windows, then planning permission will be required, although that process would be limited to the external alterations only, not the wider implications of the development.

The new PD right will not apply to pubs, including those with an expanded food offer, theatres, and live music venues, all of which are outside Use Class E, and so in those cases a full planning application would still be required.

The conversion of betting and pay day loan shops, launderettes and hot-food takeaways is also excluded.

There is no requirement in the prior approval process for the local authority to consider the impact that the loss of retail or other service uses might have on the area.

This has led to concerns that the new PD right could lead to the complete hollowing out of some town centres, with mass conversion to residential use.

The numerous objections that the government received to its consultation that were along those lines appear to have been ignored.

The very broad Class E has only existed since September 2020, and was itself the subject of a legal challenge, albeit an unsuccessful one.

There is no requirement for section 106 agreements when PD rights are granted, and so how will councils ensure there is sufficient infrastructure in place to support potentially mass residential conversions in town centres?

Such planning obligations, used when full planning permissions are required, typically concern matters such as affordable housing, open space, education, libraries, and health centres, to name just a few.

Individually the size of conversions will be constrained by the 1,500 square metres ceiling (so that rules out converting large retail premises or out of town sheds), but collectively if smaller conversions are spread out over a town centre the impact could still be huge over time.

Perhaps some local authorities will see enough scope or leeway in the prior approval process, especially regarding noise, to be able to limit development to sustainable levels.

Concerns have also been expressed about the 3-month vacancy requirement.

The government says that restricting the PD right to buildings that are already vacant will protect existing businesses.

However, the 3-month period is surely too short if that is the real aim.

The pandemic has forced many businesses to close that were previously viable, and unless it is extended (again), the commencement of the new PD right will coincide with the ending of the moratorium on forfeiture of commercial leases.

There’s nothing to stop landlords simply leaving premises empty deliberately or exercising break rights so as to take advantage of the new PD right, as they would only be foregoing a short period of loss of rent.

It will take a while before the impact of this new PD right can be accurately assessed, especially against the backdrop of all the other consequences of the pandemic, but it clearly marks a significant change in the planning regime.

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