Three new statutory instruments (SIs) (2020/755)(2020/756)(2020/757) were introduced at the beginning of summer which came into effect at the beginning of September, which amended the Town and Country Planning (General Permitted Development)(England) Order 2015 and the Use Classes Order 1987, to “deliver much-needed new homes and revitalise town centres”.
These are some of the biggest changes to planning regime in many years but the changes are the subject of legal challenge so any developer should think twice if they intend to rely on them before the challenges have been resolved.
Demolition of buildings and construction of new homes
A new right has been introduced for the demolition of the buildings and replacement by either a single purpose built detached block of flats, or a purpose-built detached house. (Class ZA). What can be demolished:
- a single purpose-built detached block of flats, and
- any single detached building established for office use (Class B1(a)); research and development (Class B1(b)); or industrial process (Class B1(c))
The new right will not apply if the old building was constructed after 31 December 1989; if it is listed; if its footprint exceeds 1,000 square meters; and unless the building has been vacant for at least 6 months immediately prior to the application for prior approval.
An application for prior approval must be made to the local planning authority to provide them with the opportunity to consider the design of the building, its external appearance, impact on the neighbouring amenity and the provision of adequate natural light in all habitable rooms of each new house/flat.
Additional storeys to homes
Home-owners will now be entitled to increase the size of their homes by adding up to two additional storeys (where the existing house consists of two or more storeys) or one additional storey (where the existing house consists of only one storey). In order to benefit from this new right, the house must have been constructed between 1 July 1948 and 28 October 2018. There must not have been any earlier additional storeys already added to the original house, whether by operation of this right or otherwise. And after development, the height of the highest part of the roof must not exceed 18 metres. Development will need to comply with a number of conditions controlling, e.g. external materials and fenestration, and prior approval is necessary.
Use Classes changes
Major reforms to the Use Classes Order 1987 have also been made which would change the face of permitted development rights. Before 1 September 2020, there were five main categories of use classes in England:
- Class A—shops and other retail premises such as restaurants and banks
- Class B—offices, workshops, factories and warehouses
- Class C—residential uses, and
- Class D—non-residential institutions and assembly and leisure uses
- sui generis—a wide range of uses in a class of their own. A material change of use from a sui generis use, or to a sui generis use, requires planning permission
On 1 September 2020, SI 2020/757 revoked classes A and D (subject to transitional provisions), replacing them with recast, wider use class E, F.1 and F.2 and recasting elements of the old use classes as sui generis uses. There are now six main categories:
- Class B—general industrial (excluding offices)
- Class C—residential uses
- Class E—commercial, business and service uses
- Class F.1—learning and non-residential institutions, and
- Class F.2—local and community uses
- sui generis uses
The changes aim to promote the vitality and viability of town centres by allowing more diversification and the ability to respond to rapid changes to retail and leisure demands.
The unintended consequences of the changes to permitted development outside of town centres could be dramatic. The previous drive to enliven town centres may be shot down by the new right for large out of town offices to be converted to retail, apparently with no assessment of alternative sites (the sequential test) or its impact on the vitality of town centres.
There have also been additional restrictions put in place (partly in response to Covid-19). For instance, pubs/bars, takeaways, cinemas and live music venues and all been moved to ‘sui generis’ class, removing any permitted development rights for change of use. The aim is to protect some of these uses as well as ensuring control over their change of use.
A helpful two-page chart produced by Lichfields can be found here.
Game Changer or potential trap for the unwary developer?
The SIs were made under the negative resolution procedure. This means that even though they came into effect on the date 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.
Labour has laid such a motion rejecting the SIs on the basis that no debate took place in parliament (the SIs were laid the day before parliament rose for the summer and came into effect the day it returned) but the wording of the rejection appears to have been tangled up with the other major publication this summer, Planning for the Future. The House will therefore vote on the motion but given the substantial majority in government, it is unlikely to succeed.
In addition, the campaign group “Rights : Community : Action” has issued a claim for judicial review of the new SIs on the grounds that the Secretary of State unlawfully failed to carry out an environmental assessment pursuant to EU law, failed to have due regard to the Public Sector Equality Duty (“the PSED”) and failed to consider the weight of the evidence against these radical reforms, including prior consultation responses and the advice of his own experts.
The court have been extraordinarily speedy to answer: a ‘rolled up’ hearing is listed for 1.5 days between 8th and 15th October. The order can be found here. In these unusual and urgent circumstances, the court has directed that “if permission to apply for judicial review is granted at that hearing, the Court will proceed immediately to determine the substantive claim” (my emphasis). The court is likely to give its decision in the few days following the hearing.
What to do now?
Wait till the 15th October!
It would be extremely unwise, and entirely at their own risk, for any developer or home-owner to rely on the permitted development rights introduced by this legislation at the current time. For the sake of a few weeks delay, the consequences of going ahead in light of the judicial review could greatly surpass the impact if the SIs were annulled.