Build, Build, Build* (*Terms & Conditions Apply)

The Government is about to announce two major proposals for significant deregulation of the planning system by way of amendment of the Use Classes Order and the General Permitted Development Order. According to Robert Jenrick’s 30 June 2020 letter to MPs:

“I will create a new broad category of ‘commercial, business and service’ uses which will allow commercial, retail and leisure uses greater freedom to adapt to changing circumstances.”

(“In undertaking this reform, I recognise that there are certain uses which give rise to important local considerations; for example to ensure local pubs and theatres are protected, or to prevent the proliferation of hot food takeaways or betting shops”).

There will also be “… a new permitted development right to encourage regeneration and put empty buildings back to good use. This will serve to bring forward additional much needed homes and boost investment opportunities for the construction industry.

The right will allow free-standing vacant and redundant commercial and residential buildings to be demolished – and rebuilt as residential use within the footprint of the existing building. I recognise that development in certain locations requires individual consideration and therefore, I propose that the right does not apply, for example, in national parks and conservation areas or to listed buildings.”

The reforms, due to come into law in September, follow on from those contained in the Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020, which were laid before Parliament on 24 June 2020 and which were summarised in my 26 June 2020 blog post New Planning Legislation! A Detailed Guide. The most radical of these measures was the creation of a new “building upwards” permitted development right: “works for the construction of up to two additional storeys of new dwellinghouses immediately above the existing topmost residential storey on a building which is a purpose-built, detached block of flats”.

My Town colleagues Lida Nguyen, Rebecca Craig, Victoria McKeegan and Meeta Kaur have created a flow chart to describe how the new “building upwards” right will work, when it comes into law on 1 August 2020. It is not straight-forward:

The new rights will of course be equally complex to navigate. The complexity of dealing with any use classes or permitted development rights question is accentuated for those without an expensive subscription to a legal updating service: the Government still does not provide access to up to date consolidated versions of secondary legislation and so it is extremely difficult for non-professionals to navigate the inevitable regulatory trip hazards.

Many of us of course continue to query whether the new right should have been further constrained – that the flow diagram is too simple (leading one to wonder perhaps whether the traditional planning application route isn’t quite so unwieldy after all…). Clive Betts, chair of the Housing, Communities and Local Government Committee, set out a number of specific questions in his 8 July 2020 letter to MHCLG Minister of State Christopher Pincher:

⁃ “What will the Government do to ensure that basic standards, including minimum room sizes and guarantees of amenity space, will apply to new PDRs.”

⁃ “What will the Government do to ensure that local authorities do not, as a consequence of new PDRs, miss out on the funding they need to provide vital infrastructure and affordable housing for their communities?”

⁃ (With reference to the proposed Building Safety Bill, which will implement a new fire safety regime) “Could you confirm…that where a building is extended in height above 18 metres (or six storeys) through the new PDR, that it will then fall under the scope of the new building safety regime?

⁃ “What rights will local authorities have to object to a scheme which damages the local streetscape?”

⁃ “How will the rights of existing business, e.g. pubs and restaurants, be protected to ensure that they can continue to operate in an area changing its mix of development?”

⁃ “What research has the Government undertaken into the potential impact on leaseholders of these changes and what protections will the Government put in place to ensure that they are not financially disadvantaged as a consequence?”

(We now have further detail in relation to the proposed Building Safety Bill, referred to in that third bullet point. MHCLG has published its 18 July 2020 press statement Landmark building safety law to keep residents safe and accompanying guide, although until we see the draft Bill on 20 July we will not have the answer to that question as to whether the duties in the Bill will apply to development carried out by way of permitted development rights, which personally I would guess that surely they would but we shall see…).

Aside from those substantive concerns, which will equally apply to the proposed “demolish commercial to replace with residential” permitted development right, there are inevitably a number of uncertainties as to various aspects of the “building upwards” right. For instance:

⁃ Does the existing building have to be entirely in residential use? What if, say, there are any commercial units on the ground floor?

⁃ How is the adequacy of natural daylight to be determined? This cannot be allowed to turn into inconclusive debates as to “BRE compliance” given the flexibility urged in the BRE guidance itself as to application of its tests.

⁃ What is the scope for the local planning authority to refuse prior approval on the basis of effect on amenity, overlooking, privacy and loss of light? If any exercise of the right would lead to one or more of these problems, due to the inherent circumstances of the building, can the local planning authority refuse permission even if that thwarts the owner’s ability to rely on the right?

⁃ What amounts to “completion” and what are the practical implications of the development having been substantially carried out but not completed by the three years’ deadline?

Any project to construct additional storeys onto an existing block of flats also of course brings all manner of private law complexities: a minefield of landlord and tenant, building management, private nuisance and rights to light issues for example. It is often not the need for planning permission that scuppers the proposal.

Don’t just listen to me: it’s worth reading the Government’s own Regulatory Policy Committee’s lukewarm endorsement of the impact assessment accompanying the 24 June changes. The assessment had estimated that the “building upwards” right could lead to approximately 81,000 homes being built above existing structures. I would be astonished.

Simon Ricketts, 18 July 2020

Personal views, et cetera

Author: simonicity

Partner at boutique planning law firm, Town Legal LLP, but this blog represents my personal views only.

One thought on “Build, Build, Build* (*Terms & Conditions Apply)”

  1. Thank you for a succinct explanation, which sets out what seems to be intended, and potential snags in this. The amount of detail included makes the possibilities clear, without jargon or unnecessary references.

    I await the promised white paper with great interest; when it will be here is an exercise in speculation all in its own right.

    All the best,

    Mark Porter

    Like

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