Planning matters

Office to residential permitted development, now in its seventh year, has been effective at swiftly converting office space to residential space. It has also been accompanied by widespread concern at the quality of some dwellings, the loss of office accommodation. Rates of take-up have slowed significantly as the most obvious sites have already been converted or developers have obtained a prior approval that provides a fall-back position for an alternative planning application.

Enter stage right a new permitted development right (PDR) to demolish a vacant office, light industrial or residential buildings and redevelop the site for a residential building.  This potential right has been suggested by the various Governments several times since October 2015[i], most recently in ‘Planning for the Future’, as a ‘tub-thumping’ ‘ripping up the rule book’ measure.  It appears MHCLG officials have been plugging away on a PDR secured by prior approval that can been drawn tightly enough to address the concerns of Tory opponents.  This is all the more important given the ‘Building Beautiful’ agenda – albeit knock down and rebuild has finally emerged in the context of the new favourite alliteration of Bs: Build Build Build.

This PDR, which inserts Part 20 Class ZA into the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO), is one of six that will come into force during August.

On 1 August the PDR for additional storeys to wholly residential blocks (Part 20 Class A) will come into force.

This Class ZA PDR and further new PDRs to add storeys to extend dwellings (Part 1 Class AA) and to add dwellings to certain buildings (Part 20 AA-AD) will come into force on 31 August.

An overview of the knock down and rebuild PDR follows. This long-awaited PDR was thought by some to be impossible as it represents such a step change from the scale of development permitted by other PDRs relating to residential development.

Will there be a huge take up? There are potentially 13 prior approval matters to be addressed; the application drawings and documents will look very similar to a planning application. The fee will be around two thirds of a planning application fee.

Many prior approval applications for change of use to residential have been implemented, but prior approvals are also often used as a fallback position for a scheme that requires planning permission.

The costs involved in bringing forward a prior approval for knock down and rebuild means that they are less likely to be submitted unless a viable scheme that the developer would like to build out is proposed. Where a compromise is needed in order to comply with the PDR – for example extending beyond the footprint of the building to be demolished – express planning permission may be sought instead.

New Part 20 Class ZA grants planning permission for demolition of certain detached purpose-built blocks of flats or detached Class B1 office, research and development or light industrial buildings (or a combination of both) “the old building” and the construction of either a detached purpose-built blocks of flats or a single detached dwellinghouse, subject to many conditions, limitations and restrictions.  The conditions include submitting a prior approval application.

The PDR applies to B1(a), B1(b) and B1(c) buildings as defined in the 1987 Use Classes Order (UCO) on 12 March 2020. Furthermore, the UCO amendment Order, which will move B1 uses to new Class E, says that between 1 September 2020 and 31 July 2021 any references to the UCO within the GPDO should be read as if the UCO had not been amended on 1 September. Therefore, for the moment, the changes to the UCO should be disregarded in the context of change of use PDRs

The PDR will apply to detached purpose built flats and B1 buildings (or a mixed use combination) built before 1990 with a footprint of no more than 1,000sqm (no overall floorspace limit) that have been vacant for at least six months.  If the building has been rendered unsafe or uninhabitable by the action or inaction of the owner and can be repaired, the building will not benefit from the PDR. The old building must also have been in existence on 12 March 2020.

Each building to be proposed to be demolished on a site would need to be considered separately and be the subject of a prior approval application. The PDR does not apply to parts of a building.

The Order expressly excludes buildings already converted to residential via certain PDRs, but ‘purpose-built’ is defined – so buildings converted from the use for which they were built, whether with planning permission or not, do not benefit.

As one might expect, the old building and its curtilage must not be or form part of a listed building or scheduled monument or land within its curtilage and they must not lie in a conservation area.

Flats and B1 buildings in other locations commonly prohibited from permitted development may not be extended via Part 20 Class ZA either, including: areas of outstanding natural beauty, site of special scientific interest, the Broads, National Parks, and World Heritage Sites, a safety hazard area, a military explosives storage area, or land within 3 kilometres of the perimeter of an aerodrome. In addition, no part of the old building or its curtilage can be under an agricultural tenancy, unless the express consent of both the landlord and the tenant has been obtained.

A concern raised by the Building Better Building Beautiful Commission was that it will lead to people living in “former offices on business parks miles from public transport”, but there is no limitation on the locations in which the PDR would apply other than those described above.

As one might expect there is a long list of operational development that can be granted prior approval by virtue of this new PDR.  Works considered reasonably necessary for development and construction can be permitted – including works reasonably necessary for the development, including the creation of a cellar even where there was not one before.  In respect of both demolition and construction works relating to the removal or installation of plant, waste, access arrangements, fire safety and services are all referred to.

Prior approval is required; it is not a determination as to whether or not prior approval is required and the following thirteen prior approval matters will be applicable:

a) transport and highways impacts of the development;

b) contamination risks in relation to the new building;

c) flooding risks in relation to the new building;

d) the design of the new building;

e) the external appearance of the new building;

f) the provision of adequate natural light in all habitable rooms of each new dwellinghouse in or comprising the new building;

g) the impact of the development on the amenity of the new building and of neighbouring premises, including overlooking, privacy and light;

h) impacts of noise from any commercial premises on the intended occupiers of the new dwellinghouses;

i) the impact on businesses and new residents of the development’s introduction of, or increase in, residential use in the area in which the development is to take place;

j) the impact of the development on heritage and archaeology;

k) the method of demolition of the old building;

l) the plans for landscaping of the development, including the planting and maintenance of shrubs and trees; and

m) i) air traffic and defence asset impacts of the development and ii) whether because of the siting of the building, the development will impact on a protected vista – unless no part of the new building or its plant or masts occupies airspace that the old building did not.

The commercial premises referred to in prior approval matter h) includes any commercial or industrial undertaking - including licenced premises or public entertainment venues.

All applications must include a written statement of heritage and archaeological considerations.

Yes, although paragraph 14 of the prior approval procedure says:

This paragraph may appear to open the door to requests for documents addressing a wide variety of matters or details albeit it will not cause difficulties if both parties have the same idea about what the local planning authority (LPA) may ‘reasonably require’ in order to assess the relevant matters.

The LPA may refuse the prior approval application if it considers that the development does not benefit from the PDR or meet its conditions, or insufficient information has been submitted with the application to determine whether or not this is the case. A refusal may however be appealed.

When determining an application, the LPA must have regard to the National Planning Policy Framework (2019) (NPPF), where relevant to the subject matter of the prior approval, as if the application were a planning application. There is no requirement to refer to the development plan.  However, the design policies of the NPPF set quite a high bar and will need to be given careful consideration and clearly the NPPF covers a wider range of planning issues that can be brought into play if a LPA thinks relevant.

Draft amendments to the Fee Regulations 2012 propose a fee of £334 per new dwelling where the number of dwellings proposed is less than 50. Where more than 50 dwellings are proposed, the fee will be £16,525 plus £100 for each dwelling above 50 dwellings, up to a maximum fee of £300,000.  For comparison, the fee for a full planning permission for development up of up to 50 homes is £462 per dwelling.

Its footprint must sit within the footprint of the old building and be no more than seven metres (excluding plant) or two storeys higher than the old building (whichever is lower), provided the that the new building is no higher than 18 metres.  The internal height of the higher storeys is also controlled.

New plant can only project above the roof of the new building to the same height that it projected above the old building, but it does not have to be positioned in the same location.

There are no minimum floorspace standards, but the NPPF says “planning decisions should ensure that developments: […] create places that are safe, inclusive and accessible and which promote health and well-being, with a high standard of amenity for existing and future users”.

Yes and for many of the prior approval matters, how to approach consultation and who to consult is set out in the GPDO.

With regard to natural light, the GPDO says: 

“Where the application relates to prior approval as to natural light, the local planning authority must refuse prior approval if adequate natural light is not provided in all the habitable rooms of the dwellinghouses”.

This requirement to consider natural light has now been added to several of the PDRs to change use to residential by the same regulations that will introduce this PDR. See the blog from Lichfields Natural Light team for more details.

The proposed upwards extension must be advertised by the LPA by site notice and by serving notice adjoining owners or occupiers.  Reaching all owners and occupiers might be difficult for the LPA, so the applicant should consider providing owners’ contact details where owners are not occupiers.

The local planning authority must take into account any representations made to them when determining an application.

Yes, including requiring a construction management plan to be submitted prior to commencement. A condition that any new dwellinghouse created under Class ZA is to remain in use as a dwellinghouse will also apply.

If the new dwellings are flats they must be self-contained flats and the new dwellings must remain in C3 use, although ancillary uses are permitted.

But the LPA can add more planning conditions, provided that they are reasonably related to the subject matter of the prior approval.

The GPDO also says the local planning authority may grant prior approval unconditionally, which is presumably the LPA not imposing conditions, rather than permitting the LPA to remove conditions imposed by the GPDO.

The prior approval must be completed within a period of 3 years starting with the date prior approval is granted. As soon as reasonably practicable, the developer must advise the LPA that the development has been completed.

Yes, because new floorspace will be created. The development might also benefit from certain CIL exemptions and .  Lichfields can provide bespoke advice regarding this matter.

Yes.  Affordable housing contributions are unlikely but cannot be wholly discounted.   

At present, Planning Practice Guidance says:

“By its nature permitted development should already be generally acceptable in planning terms and therefore planning obligations would ordinarily not be necessary. Any planning obligations entered into should be limited only to matters requiring prior approval and should not, for instance, seek contributions for affordable housing”.

This guidance was obviously drafted prior to the current legislation and might be amended to take into account this and other new PDRs, which unlike earlier PDRs create brand new residential floorspace rather than converting exiting floorspace to residential. However, when determining the prior approval application, LPAs will also need to have regard to the National Planning Policy Framework, so far as relevant to the subject matter of the prior approval, as if the application were a planning application. However none of the prior approval matters could be linked to the provision of affordable housing so this should remove this potential obligation

The only way of seeking contributions might be if it were reasonably related to one of the matters that the LPA can have regard to (see above) or if raised by a consultee, because Part 20 Class A prior approval applications will need to take into account any representations made to them as a result of any consultation.

As ever, any planning obligation should be necessary to make the development acceptable in planning terms, directly related to the development, and fairly and reasonably related in scale and kind to the development.