Coronavirus planning update: Boris' “new” deal?

What started as an epidemic limited to China has now become a truly global pandemic. Its effects have been felt throughout many sectors, including those impacted by planning law.

“There are decades where nothing happens; and there are weeks where decades happen” - Lenin. When historians look back at the Coronavirus outbreak, are they going to consider that this was a “Lenin moment”? Quite possibly. The ways we work, shop and socialise have profoundly changed in such a relatively short space of time and it has undoubtedly increased the speed of change that was already occurring (i.e. the move to online shopping). In one small study in 2009, The European Journal of Social Psychology found it took on average 66 days to form a habit, such as eating fruit at lunch or running for 15 minutes a day. However, the number of days ranged significantly from only 18 to 254 days, so there is no magic number. What new behaviours are formed and old behaviours lost due to the Coronavirus outbreak will be a key factor in determining the long-term changes to the way we work, shop and socialise. How the planning system works and what it allows/encourages will also drive those changes. Working in planning it seems like the system is always in constant flux with regular “new” white papers, extensions to permitted development rights and “new” ways to tackle the housing crisis. It can be hard to keep up. At its heart, the planning system is a political issue subject to many competing interests i.e. development v protecting the greenbelt, local issues v bigger picture, individuals v business. How do you seek to balance those competing interests whilst ensuring an efficient system and meeting wider Government objectives? It is a big question. Here we summarise changes that the Government has announced - is it the big “new” deal promised?

PD residential extensions - Building up from 1 August

There is now a route to allow the construction of up to two additional storeys above the existing top storey of a purpose-built block, detached block of flats and associated works. The legislation is not as generous as suggested by the Government, as there are many restrictions on the use of the new permitted development rights. We would refer you to the extensive list of exceptions below:

• The residential use was created via the Permitted Development route (i.e. permission to use under Class M, N, O, P, PA or Q);
• Above ground level, the building is less than 3 storeys in height;
• The building was constructed before 1st July 1948, or after 5th March 2018;
• The additional storeys are constructed other than on the principal part of the building;
• The floor to ceiling height of any additional storey is more than 3 metres in height; or more than the floor to ceiling height of any of the existing storeys, whichever is the lesser, where such heights are measured internally;
• The new dwelling houses are not flats;
• The overall height of the roof of the extended building would be greater than 7 metres higher than the highest part of the existing roof (not including existing plant);
• The extended building (not including plant) would be greater than 30 metres in height;
• Development would include the provision of visible support structures on or attached to the exterior of the building upon completion of the development;
• Development would consist of engineering operations other than works within the existing curtilage of the building to: strengthen existing walls; strengthen existing foundations; or install or replace water, drainage, electricity, gas or other services;
• In the case of replacing existing or providing additional plant there is no existing plant on the building; and the height of any replaced or additional plant as measured from the lowest surface of the new roof on the principal part of the new building would exceed the height of any existing plant as measured from the lowest surface of the existing roof on the principal part of the existing building;
• Access works would extend beyond the curtilage of the existing building;
• Storage, waste and other ancillary facilities would extend beyond the curtilage of the existing building; be situated on land forward of a wall forming the principal elevation of the existing building; or be situated on land forward of a wall fronting a highway and forming a side elevation of the existing building; and
• In the addition, the land or site on which the building is located, is or forms part of:
  • Article 2(3) land which covers Conservation Areas, Areas of Outstanding Natural Beauty, the Broads, National Parks and World Heritage Sites;
  • A Site of Special Scientific interest;
  • a listed building or land within its curtilage;
  • a scheduled monument or land within its curtilage;
  • a safety hazard area;
  • a military explosives storage area; or
  • land within 3 kilometres of the perimeter of an aerodrome.

We consider that there is a degree of ambiguity in the legislation about whether the new right will apply to a purpose-built detached block of flats where for example, the ground floor of the building is used for retail that could be debated so it is worth testing out with local planning authorities. Technically, however it could be considered that the rights may not apply as the separate retail use would mean that the building is not “a block of flats” as it is instead “a block partly of flats”. Equally, the building would not “consist” of flats, it would “include” flats. Development is only permitted subject to Prior Approval, which requires an application with supporting justification. When considering a Prior Approval application of this nature, the local planning authority (“LPA”) will have to take into consideration the transport and highways impacts, air traffic and defence asset impacts, contamination and flooding risks. In addition, the LPA will also have to consider impact on the building's external appearance, the provision of adequate natural light in all habitable rooms, the impact on the amenity of the existing building and neighbouring premises including overlooking, privacy and the loss of light and whether "because of the siting of the building, the development will impact on a protected view”. A Prior Approval determination period is 56 days, but please see the recent changes to agreeing extensions of time here. Like any other Permitted Development works, CIL liability will be applicable (if applicable in a given area) but affordable housing will not be. The ability to make such application will commence from 1 August 2020. Given the extent of the restrictions and the range of considerations for Prior Approval applications it will be interesting to see if this offers a genuine route to delivering additional homes via a streamlined route that the Government has identified.

PD conversions: Natural Light Consideration

In response to concerns about the quality of residential conversions that are being created via the PD route, an additional requirement to judge whether new homes are benefiting from sufficient adequate natural light in habitable rooms will now need to be considered as part of Prior Approval applications. This change comes into force on 1 August 2020 and will not apply to Prior Approval applications submitted before that date.

Proposed prior approval application fees for the above new rights

The Government's has just announced the draft application fees relating to the above new building up and natural light consideration permitted development rights, as follows:

• £334 per new dwelling house for development proposals of 50 or fewer new dwelling houses; and
• A fixed fee of £16,525 plus £100 per new dwelling house for development proposals of more than 50 new dwelling houses, subject to a maximum limit of £300,000.

Given our comments above, we will need to wait and see practically how widely these new rights will be used. Upcoming September PD changes"]On 30 June 2020, the Prime Minister announced his “Build, Build, Build” agenda with an emphasis on expanding permitted development rights to “support the high street revival by allowing empty commercial properties to be quickly repurposed and reduce the pressure to build on green field land by making brownfield development easier. Developers will still need to adhere to high standards and regulations, just without the unnecessary red tape”.

The changes announced include:

• More types of commercial premises having total flexibility to be repurposed through reform of the Use Classes Order. A building used for retail, for instance, would be able to be permanently used as a café or office without requiring a planning application and local authority approval. Pubs, libraries, village shops and other types of uses essential to the lifeblood of communities will not be covered by these flexibilities;
• A wider range of commercial buildings will be allowed to change to residential use without the need for a planning application;
• Builders will no longer need a normal planning application to demolish and rebuild vacant and redundant residential and commercial buildings if they are rebuilt as homes; and
• Property owners will be able to build additional space above their properties via a fast track approval process, subject to neighbour consultation.

The Government had previously announced many of the above. We await copies of the draft legislation to be able to comment on the practical extent of these changes as we expect that the rights will be subject to a significant number of caveats, as demonstrated by the new PD right to “build up” noted above. A copy of the press release is here.

Watch this space (*zone*) for a new White Paper

We had been briefed to expect it, but on 30 June, the Prime Minister formally announced that a new White Paper will be launched this July to reform the planning system. The Prime Minister said there will be the “most radical reforms to our planning system since the Second World War, making it easier to build better homes where people want to live”.Back in February Freeths' Planning and Environment team held our London conference “Planning for Tomorrow, Today” which focused on the solutions to the development challenged of today with post-election commentary alongside applied futurist, Tom Cheesewright's, observations on the development challenges and opportunities of tomorrow. At the heart of the conference was a discussion on the future of land use planning and a potential change to a zonal planning system following the release of a Policy Exchange report by the Prime Minister's housing policy advisor in January. The report had recommended, amongst other suggestions, that local councillors lose their right to decide individual applications and instead limit their powers to deciding which areas to “zone” for which types of development.The sense is that the Government are looking to build on these ideas via the new White Paper. Significant change ahead? Let's watch this space or probably more appropriately - zone!For more from Tom Cheesewright we recommend his Freeths' webinar: “Now, Next & Beyond - Surviving and thriving post COVID-19”.[ela_accordion]

---

Further advice regarding the impact of the Coronavirus outbreak on planning law, and how to prepare for any impact on your business, is offered by the Freeths Planning team. Contact Robert Bruce and Stephanie Gozney for planning-related legal enquiries and Paul Brailsford and Mark Harris for planning consultancy enquiries. This update was originally published on 1 July 2020 and updated on 10 July 2020.Whilst you are here we would also recommend our additional Coronavirus planning updates:

• Coronavirus planning update: Decision Taking and impacts on five year housing land supply
• Coronavirus planning update: Community Infrastructure Levy and Section 106 Obligations
• Coronavirus planning update: Boris' “new” deal?
• Planning Inspectorate's Updated Guidance

---

If you would like to talk through the consequences for your business, please email us and one of our team will get in touch.