Changes in the law relating to e.g. tripe shops, maggot breeding and bone grinding were my special subject as a late 80s young lawyer so please hear me out, because this is all central in my view to thinking with regard to the government’s (currently rather all shades of grey) “brownfield passports” concept (see my 28 September 2024 blog post Brownfield Passports…To What? When? How? ).
Two things I find interesting about the UK (now, for the purposes of this post, English and Welsh) town and country system:
- The stability of its underlying structure: Many of the provisions of the Town and Country Planning Act 1947 are there, as the kernel of the current, much amended, 1990 Acts. Compare for instance section 12 of the 1947 Act (defining “development”) with section 55 of the Town and Country Planning Act 1990 or section 13 of the 1947 Act with section 59 of the Town and Country Planning Act 1990 (“development orders”).
- The continual sets of amendments, large and small, that have been made, within that framework, to reflect differing political priories and economic and social pressures. Drafting by committee? What we have now is the almost impenetrable result of many generations of that. It always helps to understand who added, amended or removed what, when and why.
The tension for law makers is always the same: how to retain what works but ensure, without unnecessary complexity, that the system remains fit for purpose.
Maybe nowhere is this more so than in relation to the concepts of use classes (changes of use within a use class not amounting to “development” requiring planning permission) and permitted development (classes of development which have the benefit of automatic, deemed, planning permission).
When I first studied planning law (at bar school in 1984-85: course run by Victor Moore, as of “A Practical Approach To Planning Law”), we were all operating under the Use Classes Order 1972 (which was largely in the same form as the first Use Classes Order in 1950) and under the General Development Order 1977 (again largely in the form of the first General Development Order in 1948). This truly makes me feel old. These were the 1972 Use Classes Order use classes, dominated by all of those special industrial groups, and with those references to tripe shops, cats-meat shops and the like.
The categories of permitted development rights in the 1977 Order will look very familiar:
The brevity of the “changes of use” category, less familiar:
Conservative governments have been responsible for two major revisions of the system.
The first was shortly after I qualified, with the introduction of the (now amended many times) Town and Country Planning (Use Classes) Order 1987 the main functions of which do not nowadays appear very controversial: (1) lumping together office, light industrial and research and development uses within a new use class B1 and (2) abolishing the use classes containing all those old special industrial groups. Alongside this was the Town and Country Planning General Development Order 1988.
That system then survived without major reform for around quarter of a century.
The second set of changes to the system has been the multiple waves of deregulatory changes made between 2013 and 2024, particularly the creation of class E for a wide range of commercial uses in 2020 (see my 24 July 2020 blog post E Is For Economy) and the various new permitted development rights enabling residential conversion and demolition/rebuild in relation to commercial (and in some instances agricultural) buildings. The Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) is a shape-shifting monster.
The system is in desperate need of reform:
- what should be the core objectives behind removing the need for planning permission for certain categories of use and works, given the Government’s missions?
- How can the system operate with simplicity but also appropriate flexibility and reflecting local circumstances where appropriate?
- What areas of the current system need modernising to reflect current economic or social pressures, priories and ways of living and working?
Depressingly, my 1 July 2016 blog post Time To Review The C Use Classes remains more relevant than ever. It’s still time! The nettle has not been grasped.
As for permitted development rights, perhaps the big political question is whether the concept of automatic planning permission for the conversion of certain types of commercial buildings to residential use should be rejected outright, based on the experience since May 2013, or can be made to work acceptably.
In 2023-24 8,825 of England’s 198,610 new dwelling completions were by way of permitted development rights . Between 2015/16 and 2022/23, 102,830 new homes were delivered by way of permitted development rights, around 6% of new homes. This is a not insignificant contribution, by numbers at least.
To this we add the Government’s drive towards brownfield development in urban areas (that brownfield passports document I mentioned); the extent to which commercial space is surplus to market requirements, and the carbon benefits of finding new uses for existing buildings (although query how this squares with the “demolish commercial and rebuild as residential” permitted development right).
Of course a big problem is that much of the resulting accommodation has not been of a decent standard (see e.g. Research into the quality standard of homes delivered through change of use permitted development rights by Dr Ben Clifford, Dr Patricia Canelas, Dr Jessica Ferm and Dr Nicola Livingstone Bartlett School of Planning, UCL and Professor Alex Lord and Dr Richard Dunning, Department of Geography and Planning, University of Liverpool, July 2020, published by MHCLG in 2020, strangely alongside yet further deregulatory measures). The Town and Country Planning Association is lobbying for a “Healthy Homes Bill”, describing permitted development rights as creating “slums for the future”.
Is there a middle ground? Do permitted development rights have a role in delivering homes, in the quantity needed but also to the necessary quality – decent, healthy?
The previous government consulted on further changes to permitted development rights in February 2024 . The outcome of that process was never published. We await Labour’s next steps.
What went wrong with commercial to residential permitted development rights?
For a start the measure seemed to be seen by ministers as a short-term tactical intervention rather than based on any longer-term strategy or analysis. In May 2013 the right was first introduced (initially just for three years) to allow changes from office use to residential use, the twin objectives being to boost housing and to help regeneration by way of putting vacant or under-utilised office space to productive use. The “prior approval” requirements were minimal, with no minimum space standards, no minimum standards for daylight and no protection in relation to noise, for instance. As is still the case, local planning authorities could not impose requirements as to affordable housing or require contributions towards for instance education or health facilities. Authorities could make “article 4” directions limiting the areas within which the permitted development right would apply but at risk of these being cancelled or amended by the government (as has frequently happened).
The right was extended to shops and to financial and professional services uses in April 2014 and made permanent in Autumn 2015. Adequacy of daylight was introduced as a prior approval requirement in August 2020 and minimum space standards in April 2021. Initially buildings of any size could be converted to residential. A 1,500 sq m cap was introduced in September 2020 (at the same time that there was the separate but related de-regulation measure of gathering together most commercial uses within a single use class, the new class E) and then that cap was removed in March 2024. Similarly, a requirement was also introduced that the building should have been vacant for at least three months before the application was made, only for that also to be removed. Are you keeping up? (Incidentally, I am grateful to my colleague Gregor Donaldson for reminding me of some of these twists and turns).
One might conclude from this chopping and changing that from the outset the process has lacked a proper strategic foundation, core objectives and a commitment to ensure that resulting development is not of poorer quality, or having a free ride at the expense of development achieved by way of the traditional planning application route. Care is needed with criticism of outcomes: to what extent did these result from the initial wave of conversions, before additional prior approval safeguards had been introduced? Also remember that these developments do have to comply with the Building Regulations and with housing legislation. Not every failing is down to the GPDO.
Before we give up on removing unnecessary matters from the planning application process and on this streamlined route for delivering new accommodation on urban brownfield land, surely there is an urgent need to examine whether the system can indeed ensure, by way of objective criteria, that:
– (possibly by way of an article 4 direction process following better national guidance and the opportunity for public consultation) development locations are sustainable for their residents, with access to public transport, schools, health and community facilities;
– schemes should pay their way in terms of affordable housing and other section 106 agreement requirements in the same way as schemes delivered by way of planning application.
But more widely, surely we need to embed a rhythm within government of reviewing the operation of the Use Classes Order and General Permitted Development Order regularly, in an orderly rather than ad hoc way, so as to ensure that we have both a reasonable level of stability but also a proper regular process for reflecting emerging economic, social and indeed technological trends?
Happy new year!
Simon Ricketts, 5 January 2025
Personal views, et cetera
SIMONICITY 
Fully agree!
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The doctrinaire, muddled and untested ideas for permitted development rights are to a large extent due to the input of the Policy Exchange which were adopted almost untested. For example, PDRs to be applied to “vacant and underused” offices in fact applied to all offices merely by emptying out tenants.
Mary Portas “recommended” a more fluid set of uses for town centres, which has resulted in a flood of coffee shops, cafes, restaurants, even gyms in key retail frontages, and has accelerated the loss of banks. In fact, she did not recommend this – the DTI interpreted this from her report, with no idea what the impact might be.
Ben Clifford has done excellent work of PDRs for changes to housing – has anybody worked out what has happened with the last lot of changes, such as offices to housing in upper floors in town centres? This is a good place for small firms who contribute more to the viability and vitality of town centres than the gain of a few flats.
If you are concerned about the UCO fossilising uses, the most fossilised use is long-lease housing – it is a one-way trip. If you are still looking at new PDRs as beneficial to, for example, revitalising town centres, perhaps we need to establish whether existing PDRs, let alone further deregulation would deliver our policy objectives, whether it is to revitalise town centres or to contribute a few more flats.
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