Introduction

In July 2020 a series of planning measures were laid before Parliament to give effect, in part, to the Government’s pledge to reform the planning system and “build, build, build” economic recovery following the COVID-19 pandemic[1].

The new measures implemented in July include three sets of amendments to the Town and Country Planning (General Permitted Development) (England) (Order) 2015 (the “GPDO”) and one set of amendments to the Town and Country Planning (Use Classes Order) 1987 (the “Use Classes Order 1987”).

In short, the amendments to the GPDO introduce new permitted developments rights (“PDRs”) which allow for the development of new residential accommodation without the need for express planning permission. The new PDRs permit the construction of additional storeys on existing residential or commercial premises and the demolition and re-development of freestanding blocks of flats and certain commercial buildings for residential purposes. The amendment to the Use Classes Order 1987 increases the flexibility to repurpose commercial premises such as shops and offices to uses that were previously in separate classes without applying for planning permission.

The Government has said that the new measures “Will both support the high street revival by allowing empty commercial properties to be quickly repurposed and reduce the pressure to build on green fields land by making brownfield development easier.”[2]

Amendments to the Town and Country Planning (General Permitted Development) (England) (Order) 2015

The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020[3] introduces a series of new classes of PDRs into Schedule 2 of the GPDO which will come into force on 31 August 2020:

• Part 1
  • Class AA: enlargement of a dwellinghouse by the construction of additional storeys.
• Part 20
  • Class AA: new dwellinghouses on detached buildings in commercial or mixed use;
  • Class AB: new dwellinghouses on terrace buildings in commercial or mixed use;
  • Class AC: new dwellinghouses on terrace buildings in use as dwellinghouses;
  • Class AD: new dwellings on detached buildings in use as dwellinghouses.

Each class allows for the construction of up to two additional storeys of residential accommodation (or one storey if the existing premises only has one storey), subject the prior approval of specified matters by the local planning authority (the “LPA”) and certain limitations, including restrictions on height and a requirement that the old building have been constructed between 1 July 1948 and 28 October 2018. Premises that have been developed as a result of a change of use in accordance with other parts of the GPDO are excluded from these PDRs.

The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020[4] introduces one new PDR, Class ZA, to Schedule 2, Part 20 of GPDO. This Class will come into force on 31 August 2020. Class ZA allows for the demolition of a single detached building in existence on 12 March 2020 that was used for office, research and development or industrial processes, or a free standing purpose built block of flats, and its replacement, subject to certain limitations and an application for prior approval, by an individual detached block of flats or a single detached dwellinghouse. The old building must have been built before 1990 and have been vacant for at least six months before the date of the application for prior approval. Premises that have been developed as a result of a change of use in accordance with other parts of the GPDO are excluded from this PDR.

The Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020[5] (the “PD Regulations 2020”) introduce three key changes to the GPDO:

Firstly, the PD Regulations 2020 introduce a new PDR, Class A, to Schedule 2 Part 20 of the GPDO. This Class allows for the construction of up to two storeys of new flats on the topmost residential storey of an existing, purpose built, detached block of flats. The new PDR is subject to prior approval by the LPA for specified matters and certain limitations, including height restrictions and the requirement that the existing building have been constructed between 1 July 1948 and 5 March 2018. Premises that have already benefitted from a PDR to change its use to residential are excluded from this PDR. Developers have three years from the date of prior approval to build the new flats.

Secondly, from the 1 August 2020 anyone seeking to use PDRs to change the use of a premises to residential will need to ensure that all habitable rooms have ‘adequate natural light’. If this is not achieved then the LPA must refuse prior approval.

Thirdly, the PD Regulations 2020 introduce Class BA to Part 4 of Schedule 2 of the GPDO, which doubles the time that land not within the curtilage of a building can be used for temporary purposes between 1 July 2020 and 31 December 2020. The existing Class B PDR for temporary use of land only relates to land not within the curtilage of a building.

Amendments to Town and Country Planning (Use Classes Order) 1987

Section 55(2)(f) of the Town and Country Planning Act 1990 (the “Act”) provides that a change of use of a building or land does not involve a ‘development’ for the purpose of the Act if the new use and former use are within the same Use Class. Therefore, no planning permission is required to implement a change of use if it is within a Use Class. The provisions in the new Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (the “Use Classes Regulation 2020”) amend the Use Classes in the GPDO by revoking Parts A and D of the Schedule to the GPDO and inserting a new Schedule 2 which provides for three new Use Classes:

• Use Class E (Commercial, Business and Service): which subsumes previous Use Classes A1 (shops), A2 (Financial and Professional Services), A3 (Restaurants and Cafes) and Class B1 (Business) along with uses for indoor sport, recreation or fitness, or for the provision of medical or health service or for a crèche, day nursery or day centre, where principally to visiting members of the public.

• Use Class F.1 (Learning and Non-Residential Institutions): which subsumes some of the uses in existing Use Classes D1 and D2.
• Use Class F.2 (Local Community): which subsumes some of uses in existing Use Classes D1 and D2, along with “a shop selling essential goods, including food, to visiting members of the public” in certain circumstances.

Notably, pubs, libraries, village shops and other uses that are “essential to the lifeblood of the communities” will not be covered by these new Use Classes.

The new Use Classes will come into force on 1 September 2020, so planning applications submitted prior to this date will be determined by reference to the previous Use Classes.

Implications of the amendments

The reforms should kick-start the construction industry and create new construction related jobs. This will be a welcome boost to the economy following the lull created by COVID-19.

The amendments to the GPDO will encourage the development of brownfield sites by enabling developers to avoid some of the red tape and costs associated with demolishing and re-developing vacant buildings. The changes will also enable new homes to be developed faster, helping  to address the countries need for more residential housing.

The inclusion of ‘adequate natural light’ as a prior approval consideration in the GPDO will go some way to allay concerns that PDRs have resulted in poor quality residential developments[6] and will also support the governments promise to ‘build better and build beautiful’[7]. However, there is likely to be concern that without the need for planning permission local authorities will not have the opportunity to properly scrutinise new developments and assess whether there is sufficient local infrastructure to support the developments.

Use Class E will benefit commercial landlords of shops and offices who currently have vacant premises due to the effects of COVID-19, enabling them to more easily change the use of their premises to ones that are in higher demand, e.g. residential. This Use Class should also encourage the regeneration of local high streets that have been in decline due to changes in consumer behaviour by enabling shops to be converted more easily to e.g. cafes and restaurants.

A Planning Policy Paper setting out further details of the Government’s plans for radical planning system reforms was due to be published in July 2020, but unfortunately this is yet to surface. The paper is expected to address proposals for a ‘zonal’ planning system.

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[1] Announcement made by Prime Minister Boris Johnson on 30 June 2020.
[2] https://www.gov.uk/government/news/pm-build-build-build
[3] Laid before Parliament on 21 July 2020.
[4] Laid before Parliament on 21 July 2020.
[5] Laid before Parliament on 24 July 2020.
[6] Carmona, M. et al (2020), A Housing Design Audit for England: an independent national audit conducted by UCL for CPRE, the countryside charity, and the Place Alliance which found that about three quarters of new housing developments are mediocre or poor.
[7] See the Living with Beauty Report written by the Build Better, Build Beautiful Commission.