Raising the roof – new permitted development right allows upwards extensions

The idea of introducing a new permitted development (PD) right to allow certain buildings to be extended upwards has been considered for some time. The Autumn 2018 Budget announced a consultation which included proposals to allow certain buildings to be extended upwards to provide new housing. Since then, upwards extensions have been mentioned on numerous occasions, for example in written statements (see our blog post of 21 March 2019), at conferences and in policy papers. A new PD right has now been introduced allowing upwards extensions for new homes, alongside confirmation by the government that we can expect more PD rights to be announced soon in addition to wholesale reform of the planning system. This post considers the scope and effect of the new upwards extensions PD rights.

PD right and restrictions

Regulation 22 of the Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020 (the Regulations) amends the Town and Country Planning (General Permitted Development) (England) Order 2015 (the GPDO) to introduce a new PD right allowing the construction of up to two additional storeys of dwellinghouses to the top most residential storey of an existing purpose-built, detached blocks of flats. This new PD right comes into force on 1 August 2020.

There are a number of restrictions to the PD right, including that development is not permitted if:

  • the building is less than three storeys in height;
  • the height of the extension would be more than seven metres higher than the existing roof or the floor to ceiling height of any new floors would be more than three metres in height;
  • the extended building would be more than 30 metres in height;
  • the building was constructed before 1 July 1947 or after 5 March 2018;
  • the building is located within a site of special scientific interest; or
  • the building was converted to housing under the certain classes of PD rights in Part 3 of Schedule 2 of the GPDO allowing change of use to dwellings, including changing offices to dwellinghouses.

The nature of these restrictions will limit the use of the PD right. For example, because it only applies to buildings that are three storeys or more, but the total extended height must be less than 30 metres (about 10 storeys high), it will only apply to mid-rise developments. The fact that the PD right does not apply to buildings built after 5 March 2018 will also limit its applicability. It will be interesting to see whether the PD right is widely used by developers in practice.

Prior approval and quality

Development under the PD right is subject to prior approval from the local planning authority (LPA). Factors to consider in the prior approval application include transport and highways impacts, flooding risks, the external appearance of the building, the provision of adequate natural light in all habitable rooms and the impact on the amenity of the existing building and neighbouring premises including overlooking, privacy and loss of light. The developer’s application for prior approval must be accompanied by various documents and information such as floor plans indicating the dimensions of each room, windows, doors and walls.

The prior approval process is positive from the perspective of developers because applications will incur lower fees. However, LPAs may not welcome these changes as they may be required to consult on a broad range of factors when deciding whether to grant prior approval, but will receive less by way of fees than for a full application. They will also have much more limited discretion over the approval of applications.

On a positive note, it can be hoped that the range of factors to consider in the prior approval process will have a positive impact on the quality of the upwards extensions. Notably, LPAs must refuse prior approval if adequate natural light is not provided in all the habitable rooms of the dwellinghouses. The Regulations have also amended certain other classes of PD rights in Part 3 of Schedule 2 of the GPDO to include this adequate natural light requirement. This change responds to criticisms that some permitted developments created very poor quality living conditions due to the lack of access to natural light.

Developer contributions

As LPAs can’t secure planning obligations on a prior approval application, developers will not be required to provide a percentage of affordable housing units when using this PD right. This may be positive for developers, but less helpful for LPAs trying to meet affordable housing requirements.

Developers should note that, if a CIL charging schedule is in place, CIL will be payable on the net increase in useable floorspace. Developers will need to factor this in as a cost consideration.

Future reform

We are expecting an imminent announcement on the government’s proposals for significant reform to the planning system as a whole. The government has also made it clear that they will expand PD rights further including to widen the range of commercial buildings permitted to change to residential use, widen the upwards extension rights and introduce a PD right to demolish commercial buildings for residential development. Time will tell how this wide expansion of PD rights will sit within the new planning framework proposed by the Government.

Overall, although landlords with suitable portfolios may be assessing whether the new upwards extensions PD right can help to maximise their assets, considering the conditions and limitations on the right it may not be widely used in practice. Nor will it necessarily increase the availability of affordable housing, as developers are under no obligation to provide affordable units. Furthermore, the prior approval process will be another drain on stretched local authority planning departments, and may not allow them to take into account all the impacts of the proposed development on the local area. For these reasons, we question whether the measure will effectively achieve the government’s aim of alleviating the pressure on housing supply.

For further information please contact:

Joanna Wilde
Joanna Wilde
Associate, planning and disputes, London
+44 20 7466 2368
Helena Mouratov
Helena Mouratov
Associate, planning and environment, London
+44 20 7466 2778
Matthew White
Matthew White
Partner and head of UK planning practice, London
+44 20 7466 2461

New permitted development right for “emergency” development

As cases of COVID-19 continue to rise, more people are in need of urgent medical attention. This has put immense pressure on the NHS. The ExCeL exhibition centre, which normally plays host to lifestyle shows, expos and conferences, has already been converted into the temporary NHS Nightingale Hospital with space for up to 4,000 beds, making it the largest field hospital in the UK. However, as the pressure continues to grow, more emergency facilities may be needed.

In response to this, the government has today published the Town and Country Planning (General Permitted Development) (Coronavirus) (England) (Amendment) Order 2020 (the “Order”). This creates a new permitted development right (“PDR”) authorising “emergency” development by local authorities and health service bodies. The new PDR comes into force at 10.00 am tomorrow, 9 April 2020.

Many owners of commercial buildings that cannot currently be used as a result of social distancing rules are considering whether their premises can be put to good use to help the NHS. This new PDR will enable such temporary changes of use to be made without having to make a planning application for the temporary development and without worrying about the need to obtain a future planning permission to authorise a change back to the original use of the building.

We set out below a summary of what is permitted:

  • Development by a local authority or health service body on land owned, leased, occupied or maintained by it is permitted if it is for the purposes of: (i) preventing an emergency; (ii) reducing, controlling or mitigating the effects of an emergency; or (iii) taking other action in connection with an emergency.
    • An “emergency” means “an event or situation which threatens serious damage to human welfare in a place in the UK”.
    • An event or situation which threatens serious damage to human welfare is one which involves or may cause: “loss of human life; human illness or injury; homelessness; damage to property; disruption of a supply of money, food, water, energy or fuel; disruption of a system of communication; disruption of facilities for transport; or disruption of services relating to health.”
    • Only “local authorities” and “health service bodies” (as defined in the Order) can rely on this PDR.
  • Development under the new PDR is not permitted if any part of the development is on land which is or forms part of a military explosives area, a SSSI or contains a scheduled monument; is within five metres of the curtilage of a dwellinghouse; or exceeds certain height restrictions.  In addition, any moveable structure, works, plant or machinery required in connection with the development must not be located within 10 metres of the curtilage of a dwellinghouse or within 5 metres of any boundary of the land.
  • Development under the new PDR is permitted subject to three conditions, which are:
    • If the developer is not the local planning authority, it must as soon as reasonably practicable after commencing development notify the local planning authority of the development;
    • The use of the land for the purposes authorised by the Order must cease on or before 31 December 2020; and
    • Within 12 months of the use ceasing, any building, works, plant, machinery, structure and erection must be removed and the land must be restored to its former condition or such other state as may be agreed in writing with the local planning authority.

This new PDR will enable local authorities and health service bodies to change the use of existing buildings, or erect new temporary buildings or structures to provide health facilities such as temporary hospitals, coroner facilities, mortuaries, testing units, storage facilities, and distribution centres for food and other commodities. It also recognises the need for plant, machinery and hard surfaces for parking and storage and allows the change of use of existing buildings such as hotels to provide temporary accommodation for staff, volunteers in the health sector and those who may be homeless.

The local authority or health service body does not need to “own” the land to rely on this PDR as the Order specifically refers to land which is “owned, leased, occupied or maintained by it.”  The Order will therefore enable existing buildings or land to be used where the relevant body has been granted a temporary licence to occupy.

The scope of this PDR is very wide given the broad definition of “emergency”. However, because the longstop date is 31 December 2020, in practice it is only likely to be used for coronavirus-related development. The explanatory memorandum recognises that there is a need for a broad PDR because it is difficult to fully predict the types of development that may be required.

Property owners will need to consider a number of issues before proceeding with development:

  1. Check the terms of the Order carefully to ensure that the whole development falls within it. The restriction on development within five metres of a dwellinghouse (or ten metres for any moveable structure, works, plant or machinery) could catch some changes of use of commercial buildings in residential areas, for example. If the stated conditions are not met then a planning application will be required unless other PDR are available.
  2. Consider whether the proposals require an Environmental Impact Assessment (“EIA”). The PDR will not be available if the development is EIA development pursuant to Schedule 1 or Schedule 2 of the EIA Regulations.
  3. Make sure that the local planning authority is notified of the development as soon as practicable after it is commenced – although prior approval is not required, notification by the developer is one of the requirements for the PDR to apply.
  4. Take advice on whether any other consents are required. The PDR only grants planning permission for emergency development. Listed building consent must still be obtained if the development involves alterations to a listed building. Advertisement consent may be required for any new signage. Environmental permits may also be required if, for example, the use involves the storage of any hazardous substances.
  5. If the property is held under a lease, check whether the permitted use covenant allows the temporary use and obtain your landlord’s consent if it does not. Similarly, if the property is subject to a mortgage or charge, check the terms of your finance documents and obtain the lender’s consent where necessary.
  6. The development must be by a local authority or health service body on land that is owned, leased, occupied or maintained by it, so a short-term lease or licence will be required if the land is not already owned by one of those bodies.
  7. The Order provides for a time limited right that will cease to have effect after 31 December 2020. Should the facilities be required beyond 31 December 2020 then a planning application may need to be submitted. The practicalities of this should be considered in any lease negotiations with the local authority or health service body.
  8. Check your insurance policy in relation to the property and notify or obtain consent from your insurer to ensure that the policy isn’t avoided.

This PDR is very welcome and will avoid planning applications having to be processed by local planning authorities for development that is urgent, necessary and plainly in the public interest. At a time when the NHS and other public authorities are stretched to the limit, we are seeing many private property owners ask what they can to do assist. It is very encouraging to see the planning system respond so quickly to ensure that the real estate sector can play its part in tackling this national emergency.

For further information, please contact:

Matthew White
Matthew White
Partner and Head of UK planning, London
+44 20 7466 2461
Lisa Bazalo
Lisa Bazalo
Senior Associate (New Zealand), planning, London
+44 20 7466 2957

COVID-19 – Planning FAQs

In light of the new measures put in place by the UK government in response to the COVID-19 pandemic, many projects are being assessed to determine whether they can continue or whether work should pause. Local authorities are putting in place appropriate measures for their areas to protect the health and safety of the public and their employees whilst trying to help businesses to survive. The impacts vary from council to council and national guidance is being updated regularly. Innovative technological and online solutions have been encouraged across the sector, including by the Planning Inspectorate and the courts, to find practical solutions to difficulties arising.

We have produced a FAQ fact sheet collating relevant guidance as well as our opinions on some of these issues. If you would like to receive a copy, please contact us.

Information is also available from the HSF Real Estate and Construction teams on landlord and tenant and construction issues. Please contact us if you are interested in hearing more from them.

For further information, please contact:

Matthew White
Matthew White
Partner and Head of UK planning, London
+44 20 7466 2461
Catherine Howard
Catherine Howard
Partner, planning and environment, London
+44 20 7466 2858
Julia McKeown
Julia McKeown
Associate (New Zealand), planning, London
+44 20 7466 2321
Fiona Sawyer
Fiona Sawyer
Planning support lawyer, planning, London
+44 20 7466 2764

Proposed changes to permitted development rights and use classes – impact on developers and landlords

Two key themes of the Budget on 29 October 2018 were increasing the supply of housing and improving the health of high streets and town centres. Published with the Budget was the consultation ‘Planning reform: supporting the high street and increasing the delivery of new homes’. Also announced was the government’s ‘Open Doors’ project, aiming to help improve the vitality of town centres by facilitating meanwhile use of vacant units. The ‘Planning reform’ consultation closes on 14 January 2019. A call for applications from landlords who wish to pilot the Open Doors project closes on 31 December 2018. We have prepared a briefing for clients, summarising key proposals that will be of interest to retail landlords, developers and advisers and assessing how these might impact new or existing developments and the lettings of these assets.

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