New permitted development rights and further relaxation of the planning process

17th January 2017

Changes to permitted development rights and a drive to simplify the planning process are making new options available to property owners to be able to maximise the value of property without going through the full planning process.

What are permitted development rights?

Permitted development rights (PD rights) allow you to make certain changes to a building without the need to apply for planning permission. These rights derive from a general planning permission granted by Parliament, rather than permission granted by the local planning authority (LPA).

PD rights are set out in the Town and Country Planning (General Permitted Development) (England) Order 2015 (the GPDO). Some rights relate to building operations, e.g. the right to extend a house by a certain amount. Others relate to the change of use of buildings.

The scope of PD rights is set out in Schedule 2 of the GPDO. There is a prior approval system for certain rights that relate to change of use, whereby the LPA approves specified elements of the development, such as design and transport issues, before work can go ahead. If the LPA refuses prior approval, then the change of use may not proceed. This system is a ‘light-touch process’, and delivers administrative savings to developers and reduces planning fees.

In some areas, called ‘designated areas’, PD rights are more restricted. This is generally the case in conservation areas, National Parks, Areas of Outstanding Natural Beauty or the Norfolk/Suffolk Broads. In designated areas, planning permission will be needed. Restrictions also apply if the property is a listed building.

Can PD rights be removed?

Yes, by the LPA either by means of a planning condition, or under Article 4 of the GPDO (an ‘Article 4 Direction’).

In accordance with the National Planning Policy Framework (NPPF), there must be clear justification for removing PD rights. This should be limited to situations where it is necessary to protect local amenity, and the well-being of an area. Also, planning conditions should not restrict PD rights unless there is a clear justification to do so.

What were the recent changes to PD rights?

In 2016 the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2016 came into force.  The Order is another step on the road to wider deregulation and simplification of the planning regime. It creates PD rights to convert offices to residential use permanent (Class O), and introduces new rights to convert light industrial use to residential use. It also amends an existing PD right to allow for the change of use from launderettes to residential, subject to prior approval.

Its intention is to free up unused brownfield sites, and increase housing supply. The rights enable conversions, which would have previously required full planning permission, to be carried out without the ability to impose requirements to provide affordable housing.

Office to residential

The right to convert offices (Class B1) to be converted to residential (Class C) without the need to apply for planning permission, has been extended, but it is not without its limitations. It is subject to an application to the LPA for determination whether prior approval is necessary in respect of transport and highways impacts, flood and contamination risks.

There is also a new requirement for an assessment of the noise impact from neighbouring commercial premises on the future occupiers of the potential residential development. It remains to be seen what the LPA will consider when assessing noise impact.

The exemption of certain areas from these PD rights (those with the most strategically important office space such as the City of London and parts of Manchester and Ashford) remains in place until 30 May 2019. If an LPA wishes to retain the exemption from that date, they will need to make an Article 4 Direction.

There is a concern that this right will adversely impact on the supply of office floor space. Alternatively, where areas which were previously exempt are not granted a continuation of this, it may free up high value sites for residential development in 2019.  In turn, this will increase the value of suitable office buildings and increase the likelihood of planning permission being granted for new purpose built office accommodation where there is a shortage of employment space.

Light industrial to residential

A new, temporary, PD right has been created for changes of use from Class B1 (c) (light industrial to Class C (residential). Again, this right comes with limitations. For example, it is restricted to the gross floor space of the existing building being a maximum of 500 sq. m, and must have been in use solely within Class B1 (c) on 19 March 2014 (or this must have been its last use).

This right took effect from 1 October 2017, and prior approval must be granted before 1 October 2020. The right does not apply to listed buildings or scheduled monuments.

The application for prior approval will also need to include details of the transport and highways impacts, contamination and flood risks. In addition, the LPA will assess whether the increase in residential use would have an adverse impact on the area’s primary industrial function.

While this right may also open up a number of currently underused sites for residential use, this will be location-dependent and sites are less likely to receive prior approval if they are in heavily industrial areas.

Further, it is of note that section 152(1) of the Housing and Planning Act 2016 enables regulations to be brought into force that allow prior approval to be sought for building operations under the PD regime.

While the continued expansion of PD Rights signals an advance in the deregulation and simplification of the planning regime, there are various limitations. Only time will tell whether the new PD Rights introduced by the 2016 Order will boost housing delivery to a significant extent.

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