Planning matters

As explained by Planning Practice Guidance, permitted development rights (PDRs) are a national grant of planning permission which allow certain building works and changes of use to be carried out without having to make a planning application, subject to conditions and limitations intended to protect local amenity.

It is the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO) that grants this national planning permission in England.

The Town and Country Planning (General Permitted Development etc.) (England) (Amendment) (No. 2) Order 2021 (Amendment No. 2 Order 2021) came into force on 1^st August 2021 and has introduced a wide range of changes to the GPDO.

The primary purpose of the amendments is to amend the GPDO to reflect last year’s changes to the Use Classes Order - which introduced greater flexibility (as well as protections) for certain town centres uses - primarily by tying up loose ends and anomalies created by the new class E.

In addition to the changes made by the Amendment No. 2 Order 2021, new Class MA commercial, business and service to residential permitted development rights that came into force in April, but which require prior approval that could not be sought until 1^st August 2021, are now available.

While PDRs continue to divide opinion, the Government sees them as playing a pivotal role in providing new homes. Housing Minister Christopher Pincher showed his support for the latest changes when giving evidence to the Housing, Communities and Local Government Committee, stating:

There are live challenges to both the Use Classes Order and to amendments to the GPDO. Anjoli Foster of Landmark Chambers is acting for the Government, led by Rupert Warren QC, and advised via LinkedIn this morning that 

"The challenge by Rights:Community:Action against the new Use Class E and PD rights to build upwards, which was dismissed by the High Court last year, is due to be heard by the Court of Appeal on 5th October 2021.

A challenge has now also been made by the London Borough of Islington against the new PD right Class MA (change from Class E to residential). A date for the hearing in the High Court is yet to be set".

As noted above, the Amendment No. 2 Order 2021 came into force on 1^st August 2021. The most substantial amendments apply to the following Parts of the GPDO: Part 3 Changes of use and Part 4 Temporary buildings and uses. These Parts grant planning permission for changes of use only, with exception of the permitted development rights for agricultural building, launderette, betting office, pay day loan shop, hot food takeaway, casino or amusement centre to residential, which permit specified building operations. Therefore, planning permission is required for building operations where this is not provided by the GPDO, for example to remove a shopfront to convert a shop to a dwelling.

The Lichfields Guide to the Use Classes Order has been updated to reflect the permitted development rights available from 1^st August 2021 – it should be used as a general guide only, because it does not provide details of limitations (e.g. floorspace maxima), restrictions, conditions and details of any requirements for any application for determination as to whether the prior approval of the local planning authority will be required.

The PDR that allowed for change of use from general industrial (B2), or storage and distribution (B8) to light industrial/business (formerly B1, now part of Class E) has now been withdrawn. The Government's rationale behind this is that change of use from class B2 or B8 to class E “could in future see the development of inappropriate uses such as nurseries or day centres, in industrial areas”. However, the PDR which allows change of use from Class B2 to B8 will remain in place under Class I, though as before, the floorspace of the converted development must not exceed 500sqm.

The PDRs relating to a number of the former assembly and leisure use class D2 have also been withdrawn due to the reforms to use classes in 2020, which split Class D2 into the Commercial, Business and Service use class, Class E, Class F.2 and into their own class (sui generis). Part 3 Class J, which allowed change of use from shops (formerly A1), financial and professional services (formerly A2), betting office or pay day loan shop to assembly and leisure (formerly D2) and Class K, which allows change of use from casinos to (former) Class D2, have all been withdrawn.

Part 3 Class R will remain in force, allowing for the change of use of an agricultural building to a ‘flexible use’ falling within Class E. The change of use of agricultural buildings to former D2 uses such as cinema or live music venues is however no longer available.

PDRs which allowed for changes of use between typical town centre and retail uses, Part 3 Classes A-F and PDR Class JA, have been replaced with a new right to change from casino, betting office, pay day loan shops, take-aways to use Class E with no limitations or conditions. Part 3 Class M, change of use from retail to residential, will be partially retained to allow the sui generis uses to continue to benefit from Class M – i.e. hot food takeaways, betting office, pay day loan shop or launderette to residential.  

In most other instances Class M is now superseded by the new Class MA. As noted above, Class MA also becomes available on 1^st August, having to come into force on 21^st April 2021. This allows for changes of use from Class E to residential. As discussed in Jennie Baker’s blog , Class MA has replaced Class O office to residential and partially replaced Class M retail. The controversy of Class MA lies in the fact that many properties within Class E will be able to change to residential without consideration of the impact on the High Street if the proposal is outside of a conservation area and limited consideration if it is within. Only listed buildings and their curtilage and properties in the most sensitive locations such as World Heritage Sites, National Parks and Areas of Outstanding National Beauty will be excluded from the new PD right.

This use class reflects the Governments current priorities of increasing housing supply and creating more efficiency for existing developments in and around town centres and highs streets. The PDR does not apply if more 1,500sqm of cumulative floorspace is to be converted. In reality, this restriction will have a minimal impact on retail sites within town centres, as most of the floorspace of most retail premises within town centres is below 1,500 sqm.

Part 4 Class G of the GPDO now permits change of use from Class E to Class E and up to two flats, from betting office or pay day loan shop to Class E and up to two flats or as betting office or pay day loan shop and up to two flats. It has also been amended so that a requirement is in place for an application for local consideration of matters of prior approval from 1^st August 2021. However, development begun before this date may continue to proceed irrespective of whether an application for prior approval has been made.

Part 4 Class D previously provided a mechanism for shops, financial, cafes, takeaways to change to several other uses on a temporary, flexible basis but since the introduction of Class E the role of Class D has been superseded. Despite this, Class D will be retained in a modified form, with the Explanatory Memorandum explaining this is to allow start-ups to trial alternative uses. The right has been amended to provide for the temporary change of use from Class E, hot food takeaway, betting office and pay day loan shop to another Class E use, or to specified F1 Learning and non-residential institutions uses art gallery, museum, public library, public hall or exhibition hall. Should a developer wish to retain a sub-category of use Class E that their building falls within as the lawful use, then they will need to notify the local planning authority that they are seeking to benefit from this temporary permitted development right.

These changes provide a necessary update to the GPDO, bringing the legislation in line with last year's amendments to the Use Classes Order. Some might question whether the Government missed an opportunity to not provide a proper consolidated version of the GPDO, merging together the many various amendments made over the years.

In combination with the expansion of PDRs over the last year, national policy for Article 4 directions has also been adapted, with the intention of stymieing councils’ attempts to introduce Article 4 Directions for large areas of land within town centres (see Lichfields’ blog ‘Summer appetiser). The wording in the NPPF has been altered to ‘The use of Article 4 directions to remove national permitted development rights should:

Related to these changes, the Government has also recently outlined its strategy to regenerate high streets with its ‘Build Back Better High Streets Strategy’ which further underlines the emphasis on building homes on high streets. Housing Minister Christopher Pincher has said, “We all know of the challenges that the high street faces. We believe that building new homes on or near high streets will better revitalise those places that have suffered a great deal over the last few months and, indeed, the last few years.”

Lichfields recent Insight, 'Moving on up', also discusses the Government’s strategy of regenerating England’s high streets, focusing on northern England. The Insight highlights that there is hope for an optimistic future in England’s high streets as the town centre sector benefits from innovation and £4.8 billion of funding from the Governments Levelling Up Fund. What is clear from all of this is that the Government regards town centres and high streets as a key component to its levelling up pledge as well as providing much needed new housing.

The seismic changes to PDRs and alterations to Article 4 directions within the NPPF demonstrate how important the Government views these changes to meeting its targets, resulting in some of the biggest changes to planning in several years, which may be coming to a High Street (…or retail park, business park or agricultural building) near you very soon.