The new guidance is simply explanatory and I haven’t spotted anything new as to, for instance, the circumstances in which local planning authorities should or should not restrict the operation of the Orders by way of condition.
In the meantime, there remains some Parliamentary focus on the nature of the changes.
The House of Lords Secondary Legislation Scrutiny Committee published a critical report on 10 September 2020:
“These instruments make substantial and wide-ranging changes to planning legislation. According to the Ministry of Housing, Communities and Local Government, the aim is to encourage and speed up the delivery of housing and to support the economic recovery after the pandemic, especially in relation to England’s high streets. The changes are de-regulatory and concerns have been raised that they could lead to the construction of low-quality housing, an increased concentration of fast food restaurants with an impact on the health of local residents, and reduce the ability of local authorities to shape the character of their high streets. These are issues which the House may wish to explore, including in the context of the Government’s plans for further, more fundamental reform of the local planning system which have been published for consultation. While the Committee notes the Government’s intention to support the economic recovery from the pandemic, the plans for further reform do raise the question whether it would have been more appropriate to take forward the significant and far-reaching changes made by these instruments in a future planning bill, enabling Parliament to scrutinise the changes more fully.”
Most of the summer blockbusters were paused from release this summer, except for Tenet, which no-one seems to understand. Oh and the statutory instruments making those major amendments to the GPDO (eg building upwards, and resi development to replace existing commercial buildings) and the Use Classes Order (eg the new class E), which hit our screens just before Parliament rose for the summer recess. The Planning For The Future white paper was published (visually spectacular) after Parliament had risen.
This post looks briefly at the role of Parliament in debating these documents, and at the Rights : Community : Action judicial review of the GPDO and Use Classes Order changes.
The amendments to the General Permitted Development Order and Use Classes Order
The statutory instruments (“SIs”) were made under the negative resolution procedure. This means that although the SIs came into effect on when stated, either House can vote to reject them within 40 sitting days, following a motion (“prayer”) laid by a member of the relevant House. If rejected, the relevant statutory instrument is annulled, i.e. no longer of any legal effect.
There has been no Parliamentary debate so far on any of the SIs, although MHCLG minister Lord Greenhalgh did respond to questions in the Lords on 28 July 2020 (ahead of the Lords going into recess the next day).
Labour has laid a motion against the GPDO SIs, but (1) given the Government’s substantial majority there is surely no realistic likelihood of that succeeding on a vote and (2) the narrative in relation to the changes to the GPDO and Use Classes Order seems to have got hopelessly confused with concerns as to the separate proposals in the white paper in the minds of politicians,the press and the public – see for instance Valerie Vaz, shadow leader of the House of Commons, on 3 September 2020:
“We have prayed against the town and country planning permitted development regulations—I think there are three sets of them. The shadowMinister for Housing and Planning, my hon. Friend Mike Amesbury, has written to the Secretary of State. I hope that the Leader of the House will find time for that debate.
During August Parliament was not sitting, but extremely important announcements were being made. I cannot understand why the Government, who say consistently that Parliament is sovereign, do not come to the House to explain changes in policy. Apparently, algorithms will now be used in planning decisions. That takes away the very nature of making planning decisions—whether relevant considerations are taken into account or whether irrelevant considerations are taken into account—and it undermines administrative law. When you make a decision, you must give reasons.
The Town and Country Planning Association says that 90% of planning applications are approved and there are 1 million unbuilt commissions [sic]. It is time for the shires to rise up and oppose these new policies. Will the Leader of the House ask the current Secretary of State for Housing, Communities and Local Government to come to the House to explain why he is using algorithms to stomp on our green and pleasant land?”
Quite aside from the probably theoretical possibility of any or all of the SIs being annulled, there is also the judicial review that has been brought by a new campaign group, Rights : Community : Action. It describes itself as “a coalition of campaigners, lawyers, planners, facilitators, writers and scientists, united by a shared commitment to tackle the Climate Emergency – with people and for people, and the environment.” There are four protagonists: Naomi Luhde-Thompson (currently on sabbatical from Friends of the Earth), Hugh Ellis (Town and Country Planning Association), Laura Gyte (Oxfam) and Alex Goodman (Landmark Chambers).
“(1) GROUND 1: In respect of each of the three SIs, the Secretary of State unlawfully failed to carry out an environmental assessment pursuant to EU Directive 2001/42/EC (“the SEA Directive”) and the Environmental Assessment of Plans and Programmes Regulations 2004 (“the SEA Regulations”).
(2) GROUND 2: In respect of each of the three SIs, the Secretary of State failed to have due regard to the Public Sector Equality Duty (“the PSED”) in s.149 of the Equality Act 2010 (“the EA 2010”).
(3) GROUND 3: In respect of each of the three SIs, the Secretary of State failed to consider the weight of the evidence against these radical reforms, including prior consultation responses and the advice of his own experts. This composite ground is divided as follows:
Ground 3a: The Secretary of State failed to conscientiously consider the responses to the consultation on proposed planning reforms which ran from 29 October 2018 to 14 January 2019
Ground 3b: In respect of the two SIs that expand Permitted Development rights (SI 2020/755 and SI 2020/756), the Secretary of State failed to take into account the advice of the government’s own experts: in particular, the findings of the Building Better, Building Beautiful Commission’s “Living with Beauty” Report (“The BBBB Report”), and the findings of his own commissioned expert report “Research into the quality standard of homes delivered through change of use Permitted Development rights” (“The Clifford Report”).
Ground 3c: In respect of the two SIs that expand Permitted Development rights (SI 2020/755 and SI 2020/756), the Secretary of State adopted an approach which was unfair, inconsistent and/or irrational in the context of the approach taken to similar proposed Permitted Development reforms: namely those relating to the deployment of 5G wireless masts.
Ground 3d: In respect of SI 2020/756, the Secretary of State was required to re- consult before introducing Class ZA. There was a legitimate expectation of re- consultation on the proposal for a permitted development right allowing the demolition and rebuild of commercial properties, arising from an express promise to re-consult which was made in the original consultation document.”
Do read the Statement of Facts and Grounds itself for the detail. The Government has served summary grounds of defence but I do not think that they are on line.
The group is seeking an order “declaring that the decision to lay the SIs was unlawful. The Claimant also seeks an order quashing the SIs for unlawfulness.” It was also initially seeking an order “suspending the operation of the SIs until the disposal” of the claim, but it has now withdrawn that request.
On 2 September 2020 Holgate J made an order listing the claim to be heard in court “for 1.5 days in the period between 8th October 2020 to 15th October 2020”. It will be a “rolled up” hearing, i.e. there has been no decision yet as to whether any of the grounds are arguable. The Planning Court has pulled out all the stops to list the case quickly – after all, if any parts of the SIs were now to be quashed just think of the implications and complications! But there must be a good likelihood of the case going to the Court of Appeal or beyond, particularly if any of the grounds gain any traction. There could be uncertainty for some time.
No doubt the claim will touch various raw nerves amongst some – an attack on the Government’s “fast changes” agenda, part reliance on EU-derived environmental legislation, Aarhus Convention costs capping, crowdfunded litigation, “activist lawyers” – it ticks all the boxes! But let’s see what the court makes of it.
The Planning For The Future white paper
The white paper is of course out for consultation, along with the associated shorter term measures document, so it might be said that they don’t amount to significant policy announcements – but that would surely be simplistic: there is a clear direction of travel. With this in mind, being no expert on Parliamentary conventions and procedure, I have two questions:
1. Surely the announcements should first have been in Parliament if I read this House of Commons Library note on Government policy announcements (18 January 2013) correctly?
2. What is the precise status of Planning For The Future? It is expressed on the face of the document to be a “white paper” but would it not usually therefore be expected to have been tabled in Parliament as a numbered command paper and to include the wording: “Presented to Parliament by the Secretary of State for Housing, Communities and Local Government by Command of Her Majesty“? On one level, does it matter? But surely it does?
I also note that some of the shorter term measures (covered in last week’s blog post) could take effect soon after the consultation deadline of 1 October (particularly the introduction of the revised standard method – the “algorithm” if you will) so if there is to be any proper, informed, debate in Parliament I would suggest that there is little time to be lost.
More E words: the English planning and property community was immediately, depending who you spoke to, exercised/excited by the changes to the Use Classes Order and General Permitted Development Order this week. Surprisingly so perhaps, given how heavily the changes had previously been trailed (although, it must be said, in terms of the Use Classes Order changes, not consulted upon). Inevitably and by contrast, the wider public appears to be oblivious as to what lies ahead, despite the potentially far-reaching implications of the creation of the new “commercial, business and service“ class E within the Use Classes Order in particular.
There are many good summaries already of the changes. My Town colleagues Nikita Sellers, George Morton Jack and Meeta Kaur have prepared a detailed summary.
I am not going to consider the rights and wrongs of the changes in any detail. I have referred previously to my disappointment that the Government has not required for example its nationally described minimum space standards to be applied in relation to the creation of new dwellings by way of permitted development rights (despite having published, with curious timing, a report Research into the quality standard of homes delivered through change of use permitted development rights, on the same day as publishing legislation which does not take into account the recommendations of that work, with no explanation for the discrepancy). The Use Classes Order changes do provide some overdue flexibility given the structural changes underway in our town centres in the light of changed shopping patterns (not just Covid-related but of course now accentuated), but they are extremely wide ranging and I query whether the various permutations of potential consequences have been adequately considered. But that is all for another day.
Instead, I wanted to pull us back to some planning law fundamentals – in what circumstances may owners find that they cannot rely on the expanded use rights after all?
First, in order to move within a use class, the initial use first has to have been instituted, so if for instance you have an as yet unimplemented planning permission for a shop, or if the development has been built but not yet been occupied, the development will first need to have been used as a shop before there can be a change to another use within the new class E (e.g. offices).
Secondly, there must not be a condition on the planning permission authorising the current use that has the effect of preventing use changes that would otherwise have been enabled by way of the Use Classes Order and/or General Permitted Development Order. This is familiar but not straightforward territory. There is much case law as to whether particular phrases in conditions actually achieved what the local planning authority intended and indeed whether the benefit of the condition was lost through the grant of subsequent permissions which did not expressly impose it.
The general answer is that it depends on a careful analysis of the existing planning permission (and of course any provisions within any section 106 agreement).
“The retail unit hereby permitted shall be used for the retailing of goods for DIY home and garden improvements and car maintenance, building materials and builders’ merchants goods and for no other purpose (including any other purpose in Class I of the Schedule to the Town and Country Planning (Use Classes) Order 1972 or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order).”
It was then amended to read:
“The retail use hereby permitted shall be used for the retailing of DIY home and garden improvements and car maintenance, building materials and builders merchants goods, carpets and floor coverings, furniture, furnishings, electrical goods, automobile products, camping equipment, cycles, pet and pet products, office supplies and for no other purpose (including the retail sale of food and drink or any other purpose in Class A1 of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (as amended) or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order).”
The council then approved by way of section 73 a further change so that it was to read:
“The retail unit hereby permitted shall be used for the sale and display of non-food goods only and, notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (or any Order revoking and re-enacting that Order with or without modification), for no other goods.”
However, the council neglected to include that wording in a condition. It was simply part of the description of the development.
The Supreme Court held that the permission was to be interpreted as constraining the use of the retail unit so that it was for the sale of non-food goods only. But for our purposes, this is an example that the courts (1) routinely treat conditions as able validly to restrict the operation of the Use Classes Order and/or General Permitted Development Order and (2) are perhaps currently more benevolent towards the local planning authority’s position than has previously been the case where there has been procedural imprecision, as long as what was intended was clear.
“This use of this building shall be for purposes falling within Class B1 (Business) as defined in the Town and Country Planning (Use Classes) Order 1987, and for no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained“.
The court held that “express planning consent” did not include prior approval pursuant to the “office to residential” permitted development right. The restriction applied.
So care is needed! Where there are restrictive conditions which would restrict the flexibility that the new class E would otherwise give, of course consideration can be given to applying to remove those conditions by way of section 73 application.
Thirdly, when applications for planning permission are now to be determined, careful consideration will need to be given to the proposed description of development and no doubt there will be issues arising as to whether decision makers are justified in imposing conditions which restrict the operation of the new Use Classes Order and General Permitted Development Order flexibilities. It will be the B1(a), (b) and (c) arguments all over again, but writ large.
I hope that we will have updated Planning Practice Guidance. In the meantime, the current Planning Practice Guidance has passages such as these:
“It is important to ensure that conditions are tailored to tackle specific problems, rather than standardised or used to impose broad unnecessary controls.”
2. relevant to planning;
3. relevant to the development to be permitted;
5. precise; and
6. reasonable in all other respects.”
“Is it appropriate to use conditions to restrict the future use of permitted development rights or changes of use?
Conditions restricting the future use of permitted development rights or changes of use may not pass the test of reasonableness or necessity. The scope of such conditions needs to be precisely defined, by reference to the relevant provisions in the Town and Country Planning (General Permitted Development) (England) Order 2015, so that it is clear exactly which rights have been limited or withdrawn.Area-wide or blanket removal of freedoms to carry out small scale domestic and non-domestic alterations that would otherwise not require an application for planning permission are unlikely to meet the tests of reasonableness and necessity. The local planning authority also has powers under article 4 of the Town and Country Planning (General Permitted Development) (England) Order 2015 to enable them to withdraw permitted development rights across a defined area, where justified.
Will that guidance be sufficient to avoid disputes? I doubt it.
Am I entitled to apply for planning permission simply for Class E use? Given that Parliament now deems changes within class E not be material, why not? How will such applications be determined as against development plan policies which are likely to be at odds with such an approach, and how will CIL be calculated, given that many CIL charging schedules distinguish as between, for instance, retail and office use?
Fourthly, planning permission will still be required for operational works that materially affect the external appearance of the building. To what extent will local planning authorities seek to exert control by that route, as we have sometimes seen with office to residential conversions? How to guard against plainly substandard conversions of shops to offices and of, for instance, units on out of town business parks to shops?
Fifthly, there is going to be much focus on how precisely the General Permitted Development Order operates in relation to the new class. For an initial period, until 31 July 2021, the GPDO will operate as against how the relevant use was categorised before the changes to the Use Classes Order became effective. Are we to expect further changes to the GPDO in the coming period?
Sixthly, quite apart from these planning law constraints, private law constraints imposed by way of, for instance, restrictive covenants and user covenants in leases will still apply.
But, there’s no way round it, class E has huge implications for much of the world around us, from central business district to market town, to out of town retail or business park. It also brings with it, and this is its very point, huge opportunities to allow for adaptation and for entrepreneurship. How is all this going to work out in practice? Will people start using the new freedoms and then find that inevitably in due course the rules tighten again, by which time the horse has bolted, or, that for land owners, they may have unwittingly lost the right to the use which was most valuable in investment terms? E is also for experiment.
Simon Ricketts, 24 July 2020 (expanded version 25 July 2020)
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.”
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.
The following is a summary prepared by my Town colleagues Victoria McKeegan, George Morton Jack and Meeta Kaur. I will leave any commentary as to the implications for another week.
The Bill contains temporary provisions to facilitate the extension of the duration of certain planning permissions and listed building consents. This ensures that relevant permissions and consents will remain extant, enabling development to commence following delays caused by Covid-19. As well as extending the time limit for permissions and consents expiring between enactment of the new provisions and 31 December 2020, these measures also have retrospective effect, facilitating the revival of permissions which expired since 23 March 2020, subject to an ‘additional environmental approval’. The local planning authority may only grant such approval if it is satisfied that EIA and habitats assessments remain up to date. In all cases, the time limits for commencing development are extended until 1 April 2021.
The Bill introduces a fast-track planning application process for the temporary variation of both planning conditions limiting construction site working hours and documents approved pursuant to planning condition containing such limitations. The fast-track process is facilitated through a requirement for the local planning authority to respond to the application within 14 days from the day after submission, and deemed approval in the event of no response.
The Bill also introduces measures introducing flexibility for the Planning Inspectorate to use more than one of the procedures to determine planning appeals in-combination. Appeals could take a hybrid form, combining elements of written representations, hearings and planning inquiries.
The final planning measure affords the Mayor of London temporary flexibility to make the London Plan available for inspection by appropriate electronic means, rather than having to make copies available for inspection at the Greater London Authority’s offices and to distribute copies when requested.
The Regulations amend permitted development rights (“PDR”) – the rights under the Town and Country Planning (General Permitted Development) (England) Order 2015 (the GPDO) that effectively grant planning permission for specific types of development with no need for a planning application, although subject to prior approvals from the local planning authority (LPA) – and certain advertising and other regulations.
The principal changes to PDR are:
o a new requirement for provision of adequate natural light where PDR are exercised for changes of use to housing. This provision relates specifically to all habitable rooms, and is intended to improve the quality of homes delivered under existing PDR for changes of use to housing;
o new PDR for temporary use of land, including temporary use of land by developers for any purpose subject to several restrictions (with this right in force from 25 June 2020 to 31 December 2020), and by local authorities for holding a market (with this right in force from 25 June 2020 to 23 March 2021);
o new PDR for construction of new homes on detached blocks of flats, where the permitted development consists of works for construction of up to two additional storeys of new dwellinghouses (meaning flats for this new PDR), immediately above purpose-built detached block of flats of three or more above-ground storeys. This new PDR permits various related works including reasonably necessary engineering works to construct the additional storeys and the new flats, and is subject to several restrictions.
The PDR amendments also include some minor, more technical or clarificatory updates to the GPDO.
The Regulations include some minor amendments to advertising and compensation regulations.
The Regulations come into force in two stages: first, on 25 June 2020 (including changes to PDR for temporary use of land); and second, on 1 August 2020 (including changes to PDR for residential development).
1.1 Part Three of the Bill relates to planning. This main section 1 provides a brief summary of those planning matters.
Automatic extension of planning permissions
1.2 The Bill introduces three new sections to the TCPA 1990 on a temporary basis up until 1 April 2021. New section 93A modifies any condition attached to a planning permission imposing a time limit for the commencement of development which is due to expire between the day on which the enabling provision of the Business and Planning Act (the “Act”) comes into force and 31 December 2020. The time limit for the commencement of development is automatically extended to 1 April 2021.
1.3 New section 93B has the same effect as section 93A (extending the time period for implementation until 1 April 2021) for any planning permission subject to a condition that the development must be commenced by a time falling between 23 March 2020 and the day on which the enabling provision of the Act comes into force, if an ‘additional environmental approval’ is granted or deemed to be granted in respect of that permission. As such, it is section 93B which creates retrospective effect, effectively reviving planning permissions which expired during the lockdown period (subject to ‘additional environmental approval’).
1.4 As regards the ‘additional environmental approval’, an application must be made to the local planning authority and contain sufficient information to enable it to determine whether approval should be granted . There is provision for deemed approval of the application within 28 days (or a longer agreed period) if the local planning authority does not issue its decision within this period. The local planning authority may only grant approval if the ‘EIA and habitats requirements’ are met. The EIA requirement is met if either the development is not EIA development or the development remains the subject of an up-to-date EIA assessment. The habitats requirement is met if the development would not presently require an appropriate assessment (if planning permission were being granted for the development now) or, if it would, the development was previously subject to assessment which ascertained that the development would not adversely affect the integrity of a European site / offshore marine site and the local planning authority is satisfied that the assessment remains up to date.
1.5 An ‘additional environmental approval’ is absolute and may not be granted subject to condition. Further, no ‘additional environmental approval’ may be granted following 31 December 2020, unless granted on an appeal lodged on or before that date. There is a right of appeal against a refusal of an ‘additional environmental approval’.
Automatic extension of outline planning permissions
1.6 The Bill introduces further new sections to the TCPA 1990 in relation to outline planning permissions, which have similar effect to those mentioned above in relation to full planning permissions. Again, the new sections are introduced on a temporary basis up until 1 April 2021.
1.7 New section 93D modifies any condition attached to an outline planning permission that imposes a time limit for the submission of an application for approval of any reserved matter which falls between 23 March 2020 and 31 December 2020. The time limit for submission of such applications is extended to 1 April 2021.
1.8 New sections 93E and 93F have the same effect as new sections 93A and 93B, but apply in relation to outline planning permissions. They extend the time period by which development must be begun to 1 April 2021 for those outline planning permissions due to expire between the date on which the enabling provision of the Act comes into force and 31 December 2020. Further, the extension of time for implementation and the ‘additional environmental approval’ process is the same as for full planning permissions in the case of outline planning permissions which expired between 23 March 2020 and the date that the relevant enabling provision of the Act comes into force.
Automatic extension of listed building consents
1.9 The Bill introduces a new section 18A to the Planning (Listed Buildings and Conservation Areas) Act 1990. This modifies any condition attached to a listed building consent which imposes a time limit for the commencement of works which expires between 23 March 2020 and 31 December 2020. The time limit for commencement in such cases will be extended to 1 April 2021. Again, the temporary modifications expire on 1 April 2021.
1.10 The Secretary of State may make regulations to extend the time periods set out in these new sections facilitating the automatic extension of planning permissions and listed building consents, along with their expiry date.
Modification of conditions relating to construction working hours
1.11 The Bill introduces three new sections to the TCPA 1990 in order to facilitate a new fast-track application process for the temporary variation of planning conditions relating to construction site working hours. The Explanatory Notes to the Bill state that the new process is designed to enable the facilitation of safe construction working practices in line with social distancing guidance issued by the Government. The fast-track process expires on 1 April 2021.
1.12 New section 74B applies to planning permissions which impose a condition specifying the times during which construction activities may be carried out or where a similar restriction is contained in a separate document approved by a local planning authority pursuant to a planning condition. It allows an applicant to apply to modify the restrictions imposed either by way of condition of approved document so as to allow construction activities to be carried out for a longer period than permitted on a particular day or on a day which is currently not permitted.
1.13 The application must specify the date from which it is proposed that the modifications should take effect which can be no earlier than the end of the period of 14 days from the day after submission of the application. Such an extension may only be for a temporary period not extending beyond 1 April 2021.
1.14 New section 74C provides that the local planning authority can approve the application, refuse the application or determine, with the agreement of the applicant, different modifications or alternative dates during which they will have effect. There is provision for deemed approval of the application if the local planning authority does not respond within a period of 14 days from the day after submission of the application, hence this being termed a ‘fast-track’ process. There is a right of appeal against refusal of an application under the new procedure.
Procedure for certain planning proceedings
1.15 The Bill amends the power of the Secretary of State to determine which procedure (i.e. written representations, hearing or local inquiry) should be adopted in various appeal proceedings. The amendments effectively facilitate a combination of these proceedings and are permanent. They are described in the Explanatory Notes as providing flexibility for a Planning Inspector to use more than one procedure to determine planning appeals which is required to enable the Planning Inspectorate to deal with cases quickly and effectively during the coronavirus pandemic. However, they are also described as providing ‘ongoing efficiencies to the work of the Planning Inspectorate’. The amendments apply to section 319A(2) of the TCPA 1990, section 88D(2) of the LBC Act and section 21A(2) of the Planning (Hazardous Substances) Act 1990.
Electronic inspection of spatial development strategy
1.16 The Bill temporarily modifies the effect of section 43 of the Greater London Authority Act 1999 until 31 December 2020. Section 43 of the GLAA requires the Mayor of London to take steps to give adequate publicity to various strategies and to make the current versions available for public inspection at the GLA’s offices, as well as provide copies where requested. The amendments apply solely in relation to the Mayor’s spatial development strategy, namely the London Plan. In respect of the London Plan, the Bill removes the requirement to make the current version of the London Plan available for inspection and to provide copies if a copy of the current version of the strategy is available for inspection free of charge by appropriate electronic means.
1.17 The Bill provides that the permission extension changes would come into force 28 days after the Act is passed, the construction site working hours proposal would come into force six days after the Act is passed, while the appeal procedure flexibility and GLAA amendments would come into force on the day on which the Act is passed.
1.18 MPs will next consider all stages of the Bill in one day on Monday 29 June 2020. The Government is aiming for it to pass into law by 4 July 2020.
2. THE REGULATIONS
2.1 This main section 2 provides a brief summary of the Regulations’ amendments.
Definitions of “dwellinghouse” and “flat” (Regulation 3, in force on 1 August 2020)
2.2 Regulation 3 updates article 2 of the GPDO’s definitions of “dwellinghouse” and “flat” applying to the new “Class A” PDR (“New dwellinghouses on detached blocks of flats”) in Schedule 2, Part 20 of the GPDO (which is introduced by Regulation 22, for which see the comments below on Regulation 22).
Extension of determination period for prior approval applications (Regulation 4, in force on 1 August 2020)
2.3 Regulation 4 amends article 7 of the GPDO (“Prior approval applications: time periods for decision”). It allows an applicant and an LPA to agree a period longer either than 8 weeks for the authority to determine prior approval applications, or than a time period otherwise specified in the GPDO.
New prior approval fee (Regulation 5, in force on 1 August 2020)
2.4 For the existing PDR “Enlargement, improvement or other alteration of a dwellinghouse” (GPDO Schedule 2, Part 1, Class A), in relation to development of certain dwellinghouses where prior approval is required for a larger single storey rear extension, there is a new a prior approval fee (which is set out in the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012).
Additions to roof of a dwellinghouse (Regulation 6, in force on 1 August 2020)
2.5 For the PDR “additions etc to the roof of a dwellinghouse” (GPDO Schedule 2, Part 1, Class B), in relation to alteration of a house’s roof, a rear or side extension now includes an original projection or a subsequent extension of the house that extends from the rear or side of the principal part of the original house.
Limit on new PDR for new dwellinghouses (Regulations 5 to 12, in force on 1 August 2020)
2.6 Regulations 5 to 12 amend PDR under Schedule 2, Part 1 of the GPDO.
2.7 They operate to limit the new “Class A” PDR (“New dwellinghouses on detached blocks of flats”) in Schedule 2, Part 20 of the GPDO (for which see our comments below on Regulation 22).
2.8 Regulations 5 to 12 ensure that a new home built under that new “Class A” PDR cannot use PDR under Schedule 2, Part 1 of the GPDO (“Development within the curtilage of a dwellinghouse”).
2.9 They do so in relation to the following classes in Schedule 2, Part 1:
(a) Class A – Enlargement, improvement or other alteration of a dwellinghouse;
(b) Class B – additions etc to the roof of a dwellinghouse;
(c) Class C – other alterations to the roof of a dwellinghouse;
(d) Class D – porches;
(e) Class E – buildings etc incidental to the enjoyment of a dwellinghouse;
(f) Class F – hard surfaces incidental to the enjoyment of a dwellinghouse;
(g) Class G – chimneys, flues etc on a dwellinghouse; and
(h) Class H – microwave antenna on a dwellinghouse.
Adequate natural light in homes (Regulations 13 to 19 and 27, in force on 1 August 2020)
2.10 To improve the quality of homes delivered under existing PDR for changes of use to housing, the Regulations introduce a new requirement for provision of adequate natural light in all habitable rooms (defined as “any rooms used or intended to be used for sleeping or living which are not solely used for cooking purposes, but does not include bath or toilet facilities, service rooms, corridors, laundry rooms, hallways or utility rooms”).
2.11 This requirement applies to development under the following change of use classes under Schedule 2, Part 3 of the GPDO:
(a) Class M – retail, takeaways and specified sui generis uses to dwellinghouses;
(b) Class N – specified sui generis uses to dwellinghouses;
(c) Class O – offices to dwellinghouses;
(d) Class PA – premises in light industrial use to dwellinghouses; and
(e) Class Q – agricultural buildings to dwellinghouses.
2.12 The new requirement for provision of natural light involves, as part of the prior approval application process, mandatory submission to the LPA of design details, in a floor plan indicating the dimensions and proposed use of each room, the position and dimensions of windows, doors and walls, and the elevations of the dwellinghouses. Further (under Regulation 18), “the local planning authority must refuse prior approval if adequate natural light is not provided in all the habitable rooms of the dwellinghouses”.
2.13 Regulation 27 has transitional provisions accounting for where developers, as of 1 August 2020, have already submitted a prior approval application in respect of Classes M, N, O, PA and Q as above. These transitional provisions ensure that any such applications submitted before 1 August 2020 will be determined in accordance with PDR in force before that date. Regulation 27 also covers certain circumstances where a developer may, after 1 August 2020, continue to rely on the PDR in force before that date.
2.14 The same requirement for provision of natural light in respect of Classes M, N, O, PA and Q as above applies to the new “Class A” PDR in Schedule 2, Part 20 of the GPDO, for which see our comments below on Regulation 22.
Additional temporary use of land (Regulation 20, in force on 25 June 2020)
2.15 Regulation 20 creates a new PDR for “additional temporary use of land” (as the new “Class BA” in Schedule 2, Part 4 of the GPDO). This new right permits temporary use of land for any purpose.
2.16 There are the following additional points to note in relation to use of land under the new right:
(a) the right is in addition to use under the existing Schedule 2, Part 4, Class B PDR for temporary use of land;
(iii) the right includes the right to place on the land any moveable structure (such as a stall or a marquee) for the purposes of the permitted use;
(b) any use of land for any purpose must be for not more than 28 days in total during the period 1 July 2020 to 31 December 2020; of those 28 days, no more than 14 days in total may be for the of (i) holding a market, (ii) motor car and motorcycle racing including trials of speed, and practising for these activities;
(c) development is not permitted if the land in question is a building or is within the curtilage of a listed building; if the use of the land is for a caravan site; if the land is, or is within, a site of special scientific interest and the use of the land is for: (i) motor car and motorcycle racing including trials of speed or other motor sports, and practising for these activities; (ii) clay pigeon shooting; or (iii) any war game, or if the use of the land is for the display of an advertisement;
(d) the right will cease to have effect from 1 January 2021.
PDR for local authority markets (Regulation 21, in force on 25 June 2020)
2.17 The Regulations introduce a new PDR “Class BA” to part 12 of Schedule 12 of the GPDO, for local authorities to use land for holding a market (including provision of any moveable structure related to the market use). This PDR lasts until 23 March 2021.
PDR for Construction of new homes on detached blocks of flats (Regulation 22, in force on 1 August 2020)
2.18 This PDR follows from the MHCLG consultation “Planning Reform: Supporting the high street and increasing the delivery of new homes” (October 2018).
2.19 The Regulations introduce a new PDR to Schedule 2 of the GPDO inserting a new Part 20 Class A. It allows development consisting of works for construction of up to two additional storeys of new dwellinghouses (which means flats for this new PDR), immediately above purpose-built detached block of flats of three or more above-ground storeys.
2.20 It also permits, in connection with this, the following works:
(a) reasonably necessary engineering works to construct the additional storeys and the new flats;
(b) replacement of existing or installation of additional rooftop plant reasonably necessary for the new flats;
(c) Construction of safe access and egress including additional external doors or staircases to escape fire;
(d) Construction of storage, waste or other ancillary facilities reasonably necessary for the new flats.
2.21 There are limitations on these connected works, as well as a significant number of other limitations which render the PDR unavailable, including those in the following list. Hence, development is not permitted if:
(a) the permission to use any building as a dwellinghouse was granted by PDRs set out in any of classes M, N, O, P, PA or Q of the GPDO, which are those that permit changes of use from various uses to residential (and includes the contentious office to residential PDRs);
(b) the building was constructed before 1 July 1948 or after 5 March 2018 (the latter being the date on which the government first announced its intention to introduce the upward extension PDR);
(c) the extended building would be greater than 30m high;
(d) it does not comply with limitations on floor to ceiling heights of the additional storeys and the overall height of the roof of the extended building;
(e) the site on which the building is located is or forms part of a conservation area, National Park, AONBs, or SSSI, a listed building or a scheduled monument or land within their curtilage.
2.22 The PDR is also conditional on a number of matters which include the following:
(a) before beginning the development prior approval must be sought as to the following impacts: transport and highways, air traffic and defence assets, contamination and flooding risks, external appearance, provision of adequate natural light in all habitable rooms and amenity of existing and neighbouring buildings including overlooking, privacy and loss of light and impacts on protected views.
(b) the development must be completed within 3 years and the LPA must be notified of completion;
(c) a report must be submitted to the LPA setting out how the construction will be managed.
2.23 There is a specific procedure set out for applications for prior approval for this PDR which includes a list of information that must accompany the application and the bodies that must be consulted on for the purposes of the specified impacts (see (a) above). The LPA must publicise the application by way of site notice and notice to owner/occupiers of the existing building and neighbours.
2.24 It is worth noting that applications must be accompanied by detailed plans that show (amongst other things) the position of the windows and doors and the LPA must refuse prior approval if adequate natural light is not provided in all the habitable rooms.
2.25 The LPA can require further information in order to determine the application which may include assessments of impacts or risks or how those may be mitigated having regard to the NPPF. When determining the application the LPA must have regard to representations received in response to consultation and the NPPF so far as is relevant to the prior approval application, in the same way as if it were a planning application.
2.26 The LPA must determine a prior approval application within 8 weeks but unlike some other PDRs there is no deemed approval if the LPA fails to issue a decision within that period. There is however a right of appeal for non-determination. The development must not begin before prior approval is received and must be carried out in accordance with the approved details. Prior approval can be granted unconditionally or subject to conditions reasonably related to the subject matter of the approval.
2.27 The new flats may only be used for Class C3 residential purposes and do not benefit from any of the existing PDRs for dwellinghouses in Part 1 of the GPDO.
2.28 This new PDR can be withdrawn (by way of a direction under article 4 of the 2015 Order), and as a result the Regulations amend “The Town and Country Planning (Compensation) (England) Regulations 2015” so as to limit a LPA’s compensation liability in the event it issues an article 4 direction.
2.29 The Planning Practice Guidance may yet be updated to reference this new PDR but no update has been issued at the time of writing. CIL will be payable on the new floorspace and, in accordance with the existing PPG, a LPA can require planning obligations, but the PPG currently requires that these should be limited to matters requiring prior approval and should not for example seek contributions for affordable housing.
Advertising (Regulations 23 and 24, in force on 1 August 2020)
2.30 Regulations 23 and 24 amend the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 in order to correct the Town and Country Planning Permitted Development, Advertisement and Compensation Amendments) (England) Regulations 2019. They do so by means of inserting definitions of “electronic communications apparatus”, “electronic communications service” and “telephone kiosk”.
Compensation (Regulations 25 and 26, in force on 1 August 2020)
2.31 See the comments above on the Town and Country Planning (Compensation) (England) Regulations 2015 in relation to Regulation 22.
2.32 The Explanatory Memorandum to the Regulations notes in relation to the new PDR for homes on detached blocks of flats (Regulation 22) that “Government also intends to introduce further permitted development rights for building upwards, including for new and bigger homes”.
When, as it will, this current terrible phase of the Covid-19 pandemic passes, what needs to be done to ensure that we catch up on efforts to provide housing and resume economic activity?
The main purpose of this blog post, into which a number of my partners at Town have contributed their thoughts (although all errors and omissions are mine), is to try to answer that question.
But first, what is presently being done to make sure that our system continues to operate, efficiently but fairly?
It is encouraging to see the great efforts being made by many local planning authorities to keep going with decision making, by way of innovative approaches to decision making and greater use of officers’ delegated powers, and the commitment of so many officers and members, continuing to work from home against a background of other domestic pressures and technological constraints. It will be excellent to see proactive moves by authorities to amend their constitutions, with necessary safeguards such as chief executive oversight, where there are specific rules against certain categories of application being dealt with other than by committee. Some of the options are set out in a piece by barrister Jonathan Easton, Local authority decision making in a time of crises, 19 March 2020. The Government has also confirmed that it “will consider bringing forward legislation to allow council committee meetings to be held virtually for a temporary period” (Robert Jenrick reaffirms support for councils in their coronavirus response, MHCLG press release, 16 March 2020); the Association of Democratic Services Officers and Lawyers in Local Government wrote jointly to the Secretary of State on 17 March 2020 setting out the full extent of changes that would be needed for local government decision making to function properly during this period of social distancing. The quicker the better please!
It is frustrating after the resounding success of the Rosewell reforms to see planning appeal inquiries, as well as informal hearings and local plan examinations, postponed as a result of the virus (see Coronavirus (COVID-19) – Planning Inspectorate guidance – updated 18 March 2020) – but of course the reason is plain. So far the postponements only relate to those scheduled up to 23 April but surely this will roll forward in due course. The Bar has made much of discussions with the Planning Inspectorate for greater use of video conferencing – which is the stock in trade for all of us at the moment – microsoft teams, zoom, you name it, we’re all on it! But keeping the professionals communicating with the inspector in a structured way is one thing – what about the “public” element of a public inquiry? [subsequent addition to blog post: see this subsequent excellent Landmark Chambers paper Fairness and public participation in video or telephone hearings for planning appeals during the COVID-19 crisis]. For all but the most controversial or complex appeals (so perhaps not those which have been recovered by the Secretary of State), should appellants be given the option of having their appeals determined by written representations, even if until now the appeal has been identified as appropriate for a hearing or inquiry?
The courts have also been quick to consider how to respond. An update from the Lord Chief Justice on 17 March 2020 spoke of the “urgent need to increase the use of telephone and video technology immediately to hold remote hearings where possible”, the “considerable flexibility” provided for in the Civil Procedure Rules and the courts’ “immediate aim is to maintain a service to the public, ensure as many hearings in all jurisdictions can proceed and continue to deal with all urgent matters”. Indeed, colleagues had an early taste of this on 19 March, with Deputy High Court Judge Alice Robinson handing down judgment from open court in a section 288 challenge (following a hearing earlier in the week), with the advocates and parties at the other end of the telephone. Clause 53 and Schedule 24 of the Coronavirus Bill (introduced into the House of Commons on 19 March 2020) proposes greater flexibility in relation to the use of live video and audio links, with appropriate protections, for a temporary period of two years (whoch period may be shortened or extended). I also recommend this excellent piece, Tim Buley QC shares his thoughts on the Public law courts during the coronavirus crisis, which pulls together much of what is currently being done, or contemplated.
Some ideas, looking ahead
Just a week or so ago seems like an age away. The Secretary of State set out a range of proposals for further reform of the planning system in his Planning for the future document (12 March 2020). He announced:
“In the Spring, we will publish a bold and ambitious Planning White Paper. It will propose measures to accelerate planning. It will maximise the potential of new technologies to modernise the system. It will make it easier for communities to understand the planning system and play a role in decisions that affect them. Together, the measures it puts forward will set out a pathway to a new English planning system which is fit for the future”.
That talk of a “new English planning system” seemed to herald some of the thinking from the Policy Exchange’s paper Rethinking the Planning System for the 21st Century (27 January 2020) and, after all, its co-author Jack Airey is now a 10 Downing Street advisor. I wrote a critique of the paper in the Estates Gazette (Let’s rethink the rethink, 5 March 2020) but perhaps I was being a little premature. Because maybe, once all this subsides, it is time to look at for instance:
⁃ the potential for more of a zoning-style approach, which could begin to be introduced fairly simply by placing a proper duty on authorities to prepare brownfield land registers (as well as making it mandatory for local authorities to import into their registers all sites identified by the Government in its promised national brownfield sites map) and then increasing the scope for use of the ‘permission in principle’ procedure e.g. by allowing it to be used for more than just housing-led development and allowing permission in principle to be established through site allocations in a local plan.
⁃ greater use, this time with better safeguards against abuse, of permitted development rights. After all, setting aside the problems caused by that lack of appropriate safeguards, since the permitted development right to convert offices to residential was initially introduced for a temporary three year period from May 2013 (following an initial announcement in the March 2011 budget), many thousands of new homes have been created at much greater speed than traditional planning application routes would have achieved. Desperate times call for desperate measures. Planning For The Future announces that the Government will introduce “new permitted development rights for building upwards on existing buildings by summer 2020, including to extend residential blocks by up to two storeys and to deliver new and bigger homes. We will also consult on the detail of a new permitted development right to allow vacant commercial buildings, industrial buildings and residential blocks to be demolished and replaced with well-designed new residential units which meet natural light standards.” Devil’s question: if we are to have permitted development rights to demolish and rebuild, why not go further and have permitted rights, with equivalent safeguards, to carry out residential development on already cleared brownfield land (as an alternative to the enhanced brownfield land register/permission in principle proposal above)?
Surely, all these ideas will need to be considered, against the backdrop of months of lost housing delivery and a severe knock to economic confidence.
But I would suggest that, ahead of that promised White Paper, which will surely now slip considerably, there are a number of shorter-term measures to make adjustments in order to make up for the time that has been lost as a result of this crisis. In considering these, I recognise the inevitable tension between on the one hand measures that seek to “put on hold” aspects of our system, particularly time limits, and on the other hand measures to keep the system moving.
We need to learn from recent history. In the wake of the global financial crisis, on 1 October 2009 the Government introduced a temporary measure “to make it easier for developers and local planning authorities to keep planning permissions alive for longer during the economic downturn so that they can more quickly be implemented when economic conditions improve.” Guidance as to the operation of the provisions was set out in Greater flexibility for planning permissions (23 November 2009, amended 1 October 2010 and eventually withdrawn 7 March 2014). (The same document gave guidance as to the operation of the helpful section 96A non-material amendments procedure, introduced at the same time.)
We urgently need an equivalent measure reintroduced or, perhaps more simply, an automatic six months’ extension to all planning permission time limit conditions. After all there is already a year’s automatic extension under section 91 (3A) of the Town and Country Planning Act 1990 where a planning permission is subject to judicial review proceedings. The thinking should extend to other fixed deadlines, for instance in relation to the implementation of compulsory purchase orders and NSIPs.
There are various section 106 obligations which provide for ongoing financial contributions or measures with significant ongoing costs, not linked to progress with stages of development. The Government should surely provide firm guidance to authorities that they must readily agree to the renegotiation of such provisions to take into account the current standstill period if the evidence is, for any specific development, that this is necessary and justified.
In London, there is a particular issue with the early stage viability review mechanism required by the Mayor. The review is triggered if “substantial implementation” (usually development above ground floor level) has not happened within two years of planning permission being issued. Surely we should be avoiding the unnecessary bureaucracy inherent in that process where we can and for most major schemes the 24 months’ deadline is challenging even with a fully deployed design and construction team. Again, boroughs and the Mayor should surely be urged to agree to vary such arrangements so as to allow for an appropriate extension, whether it turns out to be three months, six months, or longer. Flexibility is also urgently needed with agreements that are currently being negotiated and we have been considering various potential drafting options so as to secure that outcome.
Publicity and consultation arrangements for planning applications need to be adapted to fit this world of social distancing and self-isolation: much of this can occur anyway through innovative use social media and other online consultation tools but there should be a temporary lifting of legislative requirements which will currently serve little purpose and may prove difficult to fulfil, such as the deposit of physical copies of Environmental Statements in the community (under Regulation 23 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017) and the erection of site notices under Article 15 of the Development Management Procedure Order.
Any such proposal would need underwriting from the Government but, as part of any planned economic bounce-back, should there be a year’s window within which schemes can commence free from CIL or with a significant deferment of payments (subject to clawback unless the chargeable development is completed within a specified number of years)? Should the three years period for the “in use” exemption be extended (surely the answer is yes)?
Given the disruption and in some cases the reduction in the capability of local authorities to determine planning applications and in light of the current postponement of hearings and inquiries by PINS there must also be a case for easing the burden on the current system and deferring costs for applicants and would-be appellants by introducing a temporary extension of the statutory period for determination of planning applications and the time limit for appealing against refusal or deemed refusal of planning permission under Articles 34 and 37 of the Development Management Procedure Order.
There will surely need to be adjustments to the operation of the housing delivery test so as not to unfairly penalise authorities facing, for no fault of their own, a slow down in housing starts.
Some have called for the Government to suspend litigation deadlines and limitation periods for the duration of the crisis. It is difficult to see how an across the board standstill would not cause substantial injustices, but should the usual judicial review and statutory challenge periods be extended in relation to decisions taken after a specified date, or perhaps for a temporary period to extend the deadline to three months?
Finally, taking into account the consequences of its social distancing measures, the Government has already announced on 17 March 2020 that permitted development rights will be extended for a period of 12 months to allow the temporary change of use of pubs, bars and restaurants to hot-food take aways; one can readily see that further temporary extensions of permitted development rights might be necessary – e.g. change of use of offices, industrial buildings or warehouses to use for the sale of food and other convenience goods and change of use of hotels and hostels to hospitals or healthcare centres. Planning law will need to be nimble.
It’s times like these we learn to live again.
Simon Ricketts, 21 March 2020
Personal views, et cetera
With thanks to my partners and colleagues at Town. If any of these ideas chime with other organisations’ thoughts, please speak to any of us.
Mike Best at Turley made the point most concisely in a tweet this week:
Two themes to this blog post:
⁃ the, partly inconsistent, changes to the planning system announced over the last week;
⁃ the difficulty of sieving out from this a lot more media chaff.
The pre Conservative party conference briefings in relation to planning reforms started last week with stories in the Sun, Mail and Telegraph. What a textbook example of choosing the media (Tory), the language (middle aged “turbo charged” concept) and the interests emphasised (home-owning families):
Robert Jenrick’s conference speech on 30 September 2019 says very little as to the detail:
“…I will simplify the system.
I’m announcing new freedoms, including to build upward so that your home can grow as your family does too.
Reducing conditions, speeding up consent. Better funded local planning in return for efficient service. The beginning of a planning revolution.
Thirdly, no new home will be built in the country from 2025 without low carbon heating and the highest levels of energy efficiency.
We want better homes – and a better planet to match.
And fourthly, these new homes must be well-designed, safe, and rooted in places to which people can belong.
I am announcing the first national design guide and asking every community to produce their own. Empowering people to make sure that development works for them, in keeping with the local heritage and vernacular, with each new street lined with trees.
So, under the Conservatives, more environmentally-friendly homes, more beautiful homes, faster and simpler planning, and a leg up on to the property ladder.”
“This consultation sets out our plans for the Future Homes Standard, including proposed options to increase the energy efficiency requirements for new homes in 2020. The Future Homes Standard will require new build homes to be future-proofed with low carbon heating and world-leading levels of energy efficiency; it will be introduced by 2025.
This document is the first stage of a two-part consultation about proposed changes to the Building Regulations. It also covers the wider impacts of Part L for new homes, including changes to Part F (ventilation), its associated Approved Document guidance, airtightness and improving as-built performance of the constructed home.”
Update as to the proposed Accelerated Planning green paper:
“The government has also confirmed proposals to speed up the planning system, including the potential for more fees to be refunded if councils take too long to decide on specific planning applications.”
“Local residents will no longer have to contend with a complicated and outdated planning system, but a more user-friendly approach designed to simply the process. Small developers will similarly benefit from the simplification of guidance, with the introduction of a new tiered planning system.
Application fees will also be reviewed to ensure council planning departments are properly resourced, providing more qualified planners to process applications for new homes and other proposals.”
“The accelerated planning green paper will be published in November 2019. Government has also set out its ambition to reduce planning conditions by a third, and will take forward proposals to allow homes to be built above existing properties as well as seeking views on demolishing old commercial buildings for new housing, revitalising high streets in the process.”
So what can we expect?
Further reform of the application fees system
Greater use of technology in the application process
“reduce planning conditions by a third”? Search me. Sensibly framed conditions are a crucial mechanism both in ensuring timely approval of applications without requiring unnecessary details at a premature stage and in ensuring that what is approved is what is built.
That there will be further work on the very difficult and not at all new ideas, supported by successive ministers, to expand permitted development rights “to allow homes to be built above existing properties” and “demolishing old commercial buildings for new housing”. I have covered the problems in various blog posts, for instance Permitted Development: Painting By Numbers Versus Painting The Sistine Chapel? (8 December 2018) and The Up Right (13 October 2018).
What is quite interesting is the additional detail in one of the Mail’s stories, although who knows whether any of it has any factual basis:
“The right will be afforded first to purpose-built blocks of flats, but will eventually be rolled out to all detached properties.” [This right was originally framed around the creation of additional homes, not about home extensions. What possible justification is there for a massive extension in domestic permitted development rights?]
“Ministers will also try to accelerate the conversion of disused and unsightly commercial properties into residential homes.” [except that we know that the criteria will not include whether the commercial properties are indeed “disused” and “unsightly” – see equivalent terminology before the existing office to residential permitted right was introduced]
“Under a ‘permission in principle’ system, developers will not have to get detailed planning permission before the bulldozers can move in.“ [Interesting use of terminology – do we think that the changes might in fact be introduced by way of the “permission in principle” procedure rather than by amendments to the General Permitted Development Order? Even so, I don’t see that the problems would be reduced – how to arrive at a light-touch procedure which properly addresses legitimate and inevitable concerns as to for instance design, townscape, daylight and sunlight, overlooking and section 106 requirements such as affordable housing]
The purpose of the national design guide is to address “the question of how we recognise well- designed places, by outlining and illustrating the Government’s priorities for well-designed places in the form of ten characteristics.
It is based on national planning policy, practice guidance and objectives for good design as set out in the National Planning Policy Framework. Specific, detailed and measurable criteria for good design are most appropriately set out at the local level. They may take the form of local authority design guides, or design guidance or design codes prepared by applicants to accompany planning applications.”
This is how the ten characteristics are introduced, before being addressed in turn:
“Well-designed places have individual characteristics which work together to create its physical Character. The ten characteristics help to nurture and sustain a sense of Community. They work to positively address environmental issues affecting Climate. They all contribute towards the cross-cutting themes for good design set out in the National Planning Policy Framework.”
Part 3 of the national design guide, a “national model design guide”, is “to follow”.
In the meantime of course the Building Better, Building Beautiful Commission is working on its final report, anticipated in December 2019, following on from its interim recommendations that I covered in my 27 July 2019 blog post New Cabinet, Poor Doors, No Windows.
Christopher Hope in the Telegraph should also know better than describe planning practice guidance (that’s all it is, guidance, not even policy) as a “legal right”.
The inevitable challenge, obvious but so far unacknowledged by Government, is how to reconcile this earnest work that seeks to improve the quality of our places, with its continued attachment to deregulation via expanded permitted development rights.
Is it any wonder the public are confused and sceptical as to the planning system operates? They are continually being misled.
Where the General Permitted Development Order 2015 provides that you have deemed planning permission for a category of development within Schedule 2 of the Order, subject to your applying to the local planning authority for a determination as to whether its prior approval is required as to specified matters, and the Order sets out a specific deadline for that determination (failing which development may proceed), can you agree an extended deadline with the local planning authority?
When you look at Schedule 2, Part 3 (changes of use) for instance, paragraph W specifies as follows:
“(11) The development must not begin before the occurrence of one of the following –
(a) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required;
(b) the receipt by the applicant from the local planning authority of a written notice giving their prior approval; or
(c) the expiry of 56 days following the date on which the application under sub-paragraph (2) was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused.”
There is no hint of any power for the parties to agree an extended time period.
But then you look at Article 7 of the Order:
“7. Prior approval applications: time periods for decision
Where, in relation to development permitted by any Class in Schedule 2 which is expressed to be subject to prior approval, an application has been made to a local planning authority for such approval or a determination as to whether such approval is required, the decision in relation to the application must be made by the authority –
(a) within the period specified in the relevant provision of Schedule 2,
(b) where no period is specified, within a period of 8 weeks beginning with the day immediately following that on which the application is received by the authority, or
(c) within such longer period as may be agreed by the applicant and the authority in writing.”
Does this enable that 56 day period to be extended? Most commentators have previously assumed so. My experience is that agreed extensions are not uncommon. After all, a developer would often rather allow the authority further time to determine an application (perhaps on the basis of further information being provided to assist in its consideration of the issues) rather than to face a 56th day refusal and the need to re-apply and/or appeal.
In Mr Ockleton’s view (Mr Ockleton is Vice President of the Upper Tribunal but regularly sits as a High Court judge), article 7 (c) only enables extension of time in relation to categories of prior approval application which fall under article 7 (b) ie where Schedule 2 does not specify a deadline and therefore article (b) imposes a deadline of eight weeks.
He goes on to say this:
“There is of course a certain artificiality in the discussion: I was not shown any provision of the GPDO to which article 7(b) applies and it follows from the view that I have reached that if there is (at present) none, there is also no provision to which article 7(c) applies. But that does not impact on my conclusion. Where a period is specified, the deemed grant of planning permission takes place at the end of that period, so the authority’s decision must be before that. If no period be specified, the deemed grant takes place only when a decision is made, and there is therefore scope for agreeing a time within which the authority has to make a decision. Article 7(c) is to be read as an alternative to article 7(b) only, not to article 7 (a).”
(Obviously I took that as a challenge to go rooting through the Order. For a prior approval procedure in schedule 2 without a specified deadline for the prior approval process you need to go 200 or so pages into the document to classes B and following classes in Part 17 (“mining and minerals operations”)).
I am not at all sure that Parliament intended article 7 (c) to have such limited effect. I would suggest that MHCLG review the implications as a matter of urgency. Particularly if we are going to see further or amended permitted development processes in due course with additional matters for prior approval, are the current determination deadlines appropriate if they can’t be extended by agreement?
Furthermore, what are the implications for existing applications? The claimant in the Warren Farm case had agreed an extended period of determination for its prior approval application in connection with a proposal to use an agricultural building as a dwelling. The application was subsequently refused but it successfully challenged the refusal on the basis that in fact the purported agreement to extend time had not been legally effective and that there was therefore an automatic deemed approval at the end of the 56 days.
There may be other decisions in the same circumstances, subject to the usual judicial review deadline.
However, isn’t there legal uncertainty as to what is the case in any event, if there was a purported agreement to extend the time period and then an (as it now transpires) unlawful refusal? Even if the issue of that refusal is not (or cannot now be) challenged by way of judicial review, does (in the case for instance of changes of use) paragraph W (11) (c) allow the development to be carried out in any event because there has been “the expiry of 56 days following the date on which the application under sub-paragraph (2) was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused”. The 56 days expired without any refusal and is that sufficient, even if there was subsequently a refusal? Open question – what do you think?
I think we shall be seeing further litigation. In any case, the wording of the Order needs to be clarified.
“The government has an ambitious target of delivering 300,000 new homes per year by the mid-2020s, but inherent problems at the heart of the housing planning system are likely to jeopardise this target. If the Government delivers 300,000 new homes per year, this would be a significant increase in the rate of house building, with the number built a year averaging only 177,000 in the period 2005–06 to 2017–18. While the Ministry of Housing, Communities and Local Government (the Department) has made some recent reforms to the planning system, much more needs to be done and it still does not have a detailed implementation plan for how it will scale-up house building.”
He knows something of the task ahead.
The report also says this:
“We were concerned about poor quality in the building of new homes and of office accommodation converted into residential accommodation through permitted development rights. The Department stressed that it was critical that quality was good enough. It agreed that there are issues—particularly when dealing with large office blocks— that the number of homes created out of that office block can be too high, with inadequate space standards and build quality. The Department told us that it has committed to a review of permitted development rights which turn commercial properties into residential accommodation. This review will look at the quality of those homes and what should be built.”
In the lead up to the new premiership, May’s Government seemed to have a renewed focus on the quality of homes and communities. I wanted to write something on the various strands within this theme, if only to capture a series of links to documents, before we lose the thread in a slew of new announcements.
Minimum dwelling sizes
My 23 March 2019 blog post We Have Standardsreferred to previous Secretary of State James Brokenshire’s March 2019 statement that he intended to “review permitted development rights for conversion of buildings to residential use in respect of the quality standard of homes delivered. […]. We will also develop a ‘Future Homes Standard’ for all new homes through a consultation in 2019 with a view, subject to consultation, to introducing the standard by 2025.”
Theresa May suggested in her 26 June speech to the Chartered Institute of Housing that, whilst it would ultimately be a matter for her successor, the nationally described space standard should apply “by regulation” to all new homes. As explained in my 23 March 2019 blog post, it is presently for each local planning authority to decide whether to incorporate the standard in their local plan as a policy requirement such that an applicant for planning permission then needs to demonstrate compliance.
“I do not accept that, in 2019, we can only have sufficient and affordable housing by compromising on standards, safety, aesthetics, and space.
That is why I asked the Building Better, Building Beautiful Commission to develop proposals for embedding beautiful, sustainable and human-scale design into the planning and development process.
I look forward to reading the interim report next month.
It is why the Ministry of Housing will shortly be launching a consultation on environmental performance in new build homes, with a Future Homes Standard that will give all new homes world-leading levels of energy efficiency by 2025.
And it is why I want to see changes to regulations so that developers can only build homes that are big enough for people to actually live in.
It was the Addison Act that brought modern space standards to English housing law for the first time.
During the Bill’s second reading, the architect of the standards, Sir Tudor Walters, urged MPs to “take care that the houses planned in the future are planned with due regard to comfort, convenience, and the saving of labour”.
It is a message we would do well to return to today.
Because in the years since, the pendulum has swung back and forth between regulation and deregulation, leading to a situation today where England does have national standards – but ones that are largely unenforceable and inconsistently applied.
Some local authorities include the Nationally Described Space Standard in their local plans, making them a condition of planning permission.
But others do not.
And even where they are applied, as planning policies rather than regulations they are open to negotiation.
The result is an uneven playing field, with different rules being applied with differing levels of consistency in different parts of the country.
That makes it harder for developers to build homes where they are needed most.
And it leaves tenants and buyers facing a postcode lottery – if space standards are not applied in your area, there is no guarantee that any new homes will be of an adequate size.
Now I am no fan of regulation for the sake of regulation.
But I cannot defend a system in which some owners and tenants are forced to accept tiny homes with inadequate storage.
Where developers feel the need to fill show homes with deceptively small furniture.
And where the lack of universal standards encourages a race to the bottom.
It will be up to my successor in Downing Street to deal with this.
But I believe the next government should be bold enough to ensure the Nationally Described Space Standard applies to all new homes.
As a mandatory regulation, space standards would become universal and unavoidable.
That would mean an end to the postcode lottery for buyers and tenants.”
[Creating space for beauty: The Interim Report of the Building Better, Building Beautiful Commissionwas published in July 2019, sans its now reinstated chairman Sir Roger Scruton, who will be able to influence the tone of the Commission’s final report, due in December 2019. The interim report is a wide-ranging discursive read ending with 30 “policy propositions”. There is much good stuff about, in Theresa May’s words, “embedding beautiful, sustainable and human-scale design into the planning and development process”. None of its policy propositions urge prescription as to dwelling size, although there is this passage within its commentary:
“Above all, polling and pricing data show that people are looking for homes that meet their needs and are in the right place. Every academic or commercial study we have been able to find has shown that, other things being held equal, bigger homes are worth more and so are better connected ones. For example, a study of every single property sale in six British cities showed that in, say, Liverpool, every additional bedroom brought an additional £15,000 of value. Similar patterns were visible in Leeds, Newcastle, Manchester, Birmingham and London. In their response to our call for evidence, the RIBA also highlighted their polling research into user needs that highlighted the importance of generosity of space, high ceilings, windows that flood principal rooms with light and detail that adds character”.]
Some I know disagree, but to my mind Theresa May’s statement missed the real target in relation to minimum dwelling sizes. At present authorities can apply the nationally described space standard if they so choose. But what authorities cannot prevent (other than by removing the relevant permitted development rights in the first place by way of Article 4 Direction) is the creation of very small dwellings pursuant to the General Permitted Development Order, the adequacy of the accommodation to be created not being one of the matters in relation to which prior approval is required under the Order. Either this needs to be a matter for which prior approval is required or it needs to be addressed by way of separate regulation.
Other minimum standards in relation to permitted development rights schemes
There is still so much misunderstanding as to the operation of permitted development rights. General horror has been expressed as to the permitted development appeal in Watford for the proposed conversion of a light industrial unit to apparently windowless bed-sit/studio accommodation, allowed by an inspector in his decision letter dated 5 July 2019:
“Overall, I recognise that the proposed units are small and that, for example, living without a window would not be a positive living environment. However, the provisions of the GPDO 2015 require the decision makers to solely assess the impact of the proposed development in relation to the conditions given in paragraph PA.2. The appellant has also made clear that they are not proposing any external works at this stage.”
Photo: Watford Observer
The absence of any control over size of the proposed dwellings is indeed appalling, see my point above. But I am prepared to bet that the developer, now that he has prior approval to the use of the building as dwellings, will come back with an application for planning permission for the installation of windows and for the general recladding of the building. If it had all been applied for as one planning application, the authority would no doubt have objected to the principle of the change of use – just look at the sequencing of applications with most PD schemes and there is surely nothing wrong in that – the permitted development right just relates to use – and of course does not override other regulatory requirements.
Part B of the Building Regulations requires that every habitable room up to 4.5m from ground level either (1) has an openable window with dimensions of at least 45cm by 45cm, no more than 110cm above the floor or (2) (on the ground floor) opens directly onto a hall leading directly to an exit or (above the ground floor) with direct access to a protected stairway. Adequate ventilation is also required.
Since 20 March 2019 the Homes (Fitness for Human Habitation) Act 2018 also imposes specific requirements on landlords letting residential property for a period of less than seven years. In determining whether a dwelling is unfit for human habitation regard will be had to, amongst a range of matters, natural lighting and ventilation. MHCLG has published specific guidance for landlordsas to the operation of the Act.
In considering whether further legislation or guidance is needed, ministers will need to consider carefully the extent to which the planning system should duplicate systems of protection provided in other legislation and where genuinely there are gaps that would allow unacceptable outcomes.
The Future Homes Standard
What of James Brokenshire’s reference in March of consultation on a proposed Future Homes Standard this year, with a view to introducing the standard by 2025? This was a reference to the commitment in the then Chancellor’s Spring budget to:
“A Future Homes Standard, to be introduced by 2025, future-proofing new build homes with low carbon heating and world-leading levels of energy efficiency. The new standard will build on the Prime Minister’s Industrial Strategy Grand Challenge mission to at least halve the energy use of new buildings by 2030“.
There has not yet been any consultation. The House of Commons Business, Energy and Industrial Strategy Committee, in its 9 July 2019 report, Energy efficiency: building towards net zero, urged a greater sense of urgency:
“We welcome the announcement of a Future Homes Standard. Any attempts by housebuilders to water down the standard should be blocked by the Government. The only barrier precluding housebuilders developing to higher standards before 2025 is a preoccupation with profit margins and shareholder returns. Despite receiving billions in taxpayer funds, most housebuilders will only raise the energy standards of their stock if forced to do so. Progressive housebuilders who want to go further are being held back by the laggards who actively lobby the Government to boost their profits, rather than help meet carbon reduction obligations.
We recommend that the Government legislates for the Future Homes Standard as soon as practically possible—and by 2022 at the very latest—to guarantee that no more homes by 2025 are built that need to be retrofitted. We recommend that the Government considers policy drivers at its disposal to drive early uptake. At a minimum, the Government should put in place a compulsory ‘learning period’ from 2022 in a subset of properties in preparation for the full-scale deployment. The Government should oblige bigger housebuilders to undertake regional demonstration projects to show how they will achieve the standard.”
How we will strengthen our communities and nation, expressed to be the “next step in refreshing the government’s aspirations for stronger, more confident communities. It provides a framework to build on a range of government activity that is contributing to stronger communities in different ways – from the implementation of the Civil Society Strategy and Integrated Communities Action Plan, to our efforts to boost productivity and inclusive growth through the Industrial Strategy and by supporting local industrial strategies across the country.”
It promised that the Government will:
“• Hold a national conversation with communities across England about their view of who we are as a nation, their vision for the future of their community and our country, and what local and national government can and should be doing to support their community to thrive.
• Establish a series of Civic Deal pilots to test how the Ministry for Housing, Communities and Local Government and the Department for Digital, Culture, Media and Sport put into practice the principles set out in this document in partnership with local areas.
• Publish a Communities White Paper to renew government’s focus on building stronger communities across England. The scope of the White Paper will be developed in partnership with communities and informed by the national conversation and Civic Deal pilots.”
I referred in my 23 March 2019 blog post to widespread concerns over development projects where affordable housing tenants are prevented from using facilities provided for private market housing residents, for example children’s play areas and entrance/lift lobbies.
The basis for such arrangements may well be economically rational to the developer (preventing service charge leakage and/or preserving a sales premium in relation to the market units), to the registered provider (which would not be in a position to impose service charges high enough to cover the cost of the facilities provided for the market housing) and to the local planning authority (usually keen to protect the profitability of the development so as to secure the maximum amount of affordable housing that can be viably be delivered). But of course there can be wider, more damaging, implications.
On the same day as the communities framework was published, an MHCLG press statement Brokenshire unveils new measures to stamp out ‘poor doors’ announced there would be “measures to tackle stigma and help end the segregation of social housing residents in mixed-tenure developments…planning guidance will be toughened up and a new Design Manual will promote best practice in inclusive design.”
Meanwhile, as to we wait to see what the new ministerial team at MHCLG delivers, the Mayor of London’s new London Plan edges forward. We await the inspectors’ conclusions following their examination sessions but in the meantime the Mayor has published a Consolidated suggested changes version of the plan July 2019.
A specific policy has now been included to require that proposals likely to be used by children and young people should include good quality, accessible play provision that “is not segregated by tenure” (policy S4 B (f)).
With due deference to the list of banned words circulated by Mr Rees-Mogg:
Due to the ongoing change in ministers, with the old lot out, apparently unacceptable and no longer fit for purpose, I can only speculate as to the future of these initiatives. Hopefully I will ascertain more very soon.
Will we soon see minimum space standards for PD residential conversions? There was a hint in that James Brokenshire written statement on 13 March 2019.
I set out below in full the parts of his statement relating to PD resi and I have emboldened the relevant sentence:
“The consultation, Planning Reform: Supporting the high street and increasing the delivery of new homes closed on 14 January 2019. As confirmed in the Spring Statement it is our intention to bring forward a range of reforms. To support the high street we intend to introduce additional flexibilities for businesses. This will be to amend the shops use class to ensure it captures current and future retail models, which will include clarification on the ability of (A) use classes to diversify and incorporate ancillary uses without undermining the amenity of the area, to introduce a new permitted development right to allow shops (A1), financial and professional services (A2), hot food takeaways (A5), betting shops, pay day loan shop and launderettes to change use to an office (B1) and to allow hot food takeaways (A5) to change to residential use (C3). Additionally, to give businesses sufficient time to test the market with innovative business ideas we will extend the existing right that allows the temporary change of use of buildings from 2 to 3 years and enable more community uses to take advantage of this temporary right, enabling such premises to more easily locate on the high street. I will also shortly publish “Better Planning for High Streets”. This will set out tools to support local planning authorities in reshaping their high streets to create prosperous communities, particularly through the use of compulsory purchase, local development orders and other innovative tools.
We will take forward a permitted development right to extend upwards certain existing buildings in commercial and residential use to deliver additional homes, engaging with interested parties on design and technical details. We would want any right to deliver new homes to respect the design of the existing streetscape, while ensuring that the amenity of neighbours is considered. We will also make permanent the time-limited right to build larger single storey rear extensions to dwellinghouses and to introduce a proportionate fee. I do not intend to extend the time-limited right for change of use from storage to residential. This right will lapse on 10 June 2019. Alongside I intend to review permitted development rights for conversion of buildings to residential use in respect of the quality standard of homes delivered. We will continue to consider the design of a permitted development right to allow commercial buildings to be demolished and replaced with homes. We will also develop a ‘Future Homes Standard’ for all new homes through a consultation in 2019 with a view, subject to consultation, to introducing the standard by 2025.
I intend to implement an immediate package of permitted development right measures in the spring, with the more complex matters, including on upward extensions, covered in a further package of regulations in the autumn.”
The lack of minimum space standards in relation to residential conversions secured under permitted development rights is surely a significant flaw in the GPDO and the nature of some of the schemes that have come forward has certainly provided easy pickings for the press:
This is a small part of the development industry but these stories are reputationally terrible.
The change would surely be pretty straight forward: either to require that all PD schemes where prior approval has not been obtained by a transitional date should comply with the nationally described space standard or perhaps only to require this in areas where the standard has been adopted in an up to date local plan.
The standard itself is a bit of an oddity. It was first announced by Eric Pickles in March 2015 as part of what was basically a deregulation package – a series of optional technical standards for local authorities to apply, in lieu of authorities not being able any longer to include in their plans “any additional local technical standards or requirements relating to the construction, internal layout or performance of new dwelling, such as for instance the code for sustainable homes“. The standard’s curious wording (“described” not “prescribed“) is because the present function of the standard is for it to be able to be adopted by local planning authorities in their plans “where the need for an internal space standard can be justified” (NPPF, footnote 27), so that it becomes a policy requirement against which planning applications are assessed. It is not a legal requirement, and only relevant in areas where it has been adopted as policy.
In areas which have adopted the standard it is particularly egregious that PD schemes can simply bypass it. (It is equally egregious that PD schemes are also able to bypass the affordable housing and other policy requirements that are triggered by residential conversions requiring planning permission – see the open letter from Shelter and the Local Government Association to the Secretary of State dated 21 January 2019 – and I have directly experienced some authorities then wrongly try secure those requirements by the back door when an application for planning permission for re-cladding or extra floors of development is sought).
The Government indicated in its February 2017 housing green paper that the standard was to be reviewed, to allow some greater flexibility in its operation:
“1.55 The use of minimum space standards for new development is seen as an important tool in delivering quality family homes. However the Government is concerned that a one size fits all approach may not reflect the needs and aspirations of a wider range of households. For example, despite being highly desirable, many traditional mews houses could not be built under today’s standards. We also want
to make sure the standards do not rule out new approaches to meeting demand, building on the high quality compact living model of developers such as Pocket Homes. The Government will review the Nationally Described Space Standard to ensure greater local housing choice, while ensuring we avoid a race to the bottom in the size of homes on offer. ”
But in any revised system we arrive at, whatever the standards that may be justified in relation to homes designed to be occupied as long-term self-contained living accommodation, care is needed before equivalent requirements are read across to other forms of living that don’t fall within use class C3, such as serviced apartments and co-living, if the baby isn’t to be thrown out with the bath water in terms of what makes these different types of living attractive and affordable for those with differing requirements or priorities.
Perhaps the review will be part of the “Future Homes Standard” consultation to be carried out this year, according to that James Brokenshire statement, although that does not appear to be the intended focus, if the statement made on 21 March 2019 to the House of Lords by Lord Bourne, Parliamentary Under-Secretary for Housing, Communities and Local Government, is anything to go by:
“The Government will consult later this year on our plans to introduce the future homes standard for new-build homes to be future-proofed with low-carbon heating and world-leading levels of energy efficiency. Separately, the Government are currently working on a review of accessibility standards for new homes.”
As always, piecing together what is planned is like putting together a jigsaw, the picture for which is in parts just fog.