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Permitted development: further flex for urban and rural sites

Permitted development: further flex for urban and rural sites

Sean Farrissey, Amy Lomath & Jennie Baker 26 Jul 2023
The Government has launched a further permitted development right (PDR) consultation.
The current, lengthy consultation of 16,000 words covers:
This blog does not discuss the proposals for agriculture related PDRs which are numerous and might, at least in part, be dubbed Clarkson’s clauses; following on from the cutting red tape proposals announced after the UK Farm to Fork summit at 10 Downing Street. These PDRs were announced at the summit and trailed again in June’s Unleashing rural opportunity. They seek to respond to perceived rural economy planning barriers, including those presented as in the television programme Clarkson’s Farm. See Dan Lampard’s blog for more analysis of a recent planning appeal at that site.

Design Codes – Prior Approval

The consultation sets out proposals that would introduce compliance with design codes as a prior approval consideration for certain types of permitted development, where they have been locally adopted. Local design codes could replace the current design and external appearance considerations within prior approvals so that schemes could be assessed to determine whether they meet the local design code requirements rather than referring to national policy. The rationale behind this is to reduce uncertainty when assessing the design of applications and to reduce variation in the interpretation of design criteria.
The idea of regulating the use of design codes for assessing prior approval applications is not new. The ‘Planning for the Future: planning policy changes in England in 2020 and future reforms’  White Paper proposed a fast track for beauty and said:
[..] we also propose to legislate to widen and change the nature of permitted development, so that it enables popular and replicable forms of development to be approved easily and quickly, helping to support ‘gentle intensification’ of our towns and cities, but in accordance with important design principles.
The proposals brought forward in this consultation reflect the ideas initially proposed in the White Paper. It appears that local planning authorities who do not have an adopted design code will continue to look to national policy. Will the PDR schemes that require consideration of design come under more or less scrutiny in the absence of a design code? The level of detail required for submission could also vary depending on the requirements set out in a design code which would (quite deliberately) lead to inconsistencies across LPAs. The proposals will be welcomed by developers if they improve efficiency and consistency in the decision-making process, but it seems unlikely that this will be the case.

Changes to Town Centre and Commercial PDRs

Fawlty towers to healthy homes?
The Government is proposing to allow the change of use of hotels, boarding houses or guest houses (in the C1 Hotels use class) to dwellinghouses through permitted development rights. It is proposed in this consultation that this could either be achieved through an expansion to the Commercial, Business and Service uses to dwellinghouse PDR (Class MA of Part 3) or through the creation of a new right. It is noteworthy that that the former option has been proposed, as hotel uses (C1) do not fall under the commercial, business and service definition.
It is acknowledged in the consultation that hotels and guest houses play an important role in the tourism industry, helping to stimulate economic activity and drive footfall in their localities. However, the Government argues that in areas of high housing need, these buildings may better serve their local communities if repurposed as housing.
The Government is already reviewing the ease with which dwellings can become tourist accommodation and consulted on the creation of a new use class for short term lets in April earlier this year – see Alexandra Gavin’s blog
This consultation poses the question of whether there are any safeguards or specific matters that should be considered for this new PDR. In order to offset this potential impact on local tourism, it is proposed as part of this consultation to allow for local consideration of the impacts the change of use could have on the local tourism economy. It may also be the case that a “different” size limit on the amount of floorspace changing use should apply (presumably this refers to the option to expand the Class MA of Part 3 right, as no floorspace limit for this new right is found within the consultation).
The homes created under the new right would then be limited to use as a C3 dwellinghouse, and would not benefit from PDRs to change use to a small House in Multiple Occupation, or to the proposed use class for short term lets.
This move tallies with the overall aspirations of the Government to drive development within existing centres via densification and brownfield sites, rather than building outwards.
This proposed C1 to C3 PDR raises the question of the type of accommodation that would be provided as a result; the typical layout and facilities offered within many hotel buildings is reminiscent of a co-living or Purpose-Built Student Accommodation offer. Although, with many facilities already in place, such as communal areas and large kitchens, this may present a more viable option for retrofitting existing spaces than other commercial buildings.
The reuse of hotels for residential use may make some contribution to housing supply and regenerate some sites in town centres (and elsewhere) but it is unlikely to be significant or that wouldn’t have happened anyway. Nevertheless, it should be generally welcomed, subject to the concerns over quality that will inevitably follow.
The Government will need to strike a balance between protecting and supporting the local visitor economy whilst promoting the availability and affordability of housing stock and the vitality of local communities.
Amendments to Class MA – a total eclipse of the PDR heart?
The Government is asking whether significant changes should be made to the commercial to residential (Class MA) PDR.
The current Class MA permitted development right is detailed in this blog New Class MA - Mercantile to Abode: a slightly reined in Class E commercial to residential PDR from August 2021.
Class MA was one of the proposals that responded to the need for amendments to permitted development rights, following the September 2020 abolition of use classes A1-A5, B1, D1 and D2, the introduction of new classes E, F.1 and F.2 and the movement of further uses outside of a use class (sui generis). The class MA PDR was consulted on from 3 December 2020 to 28 January 2021: “Supporting housing delivery and public service infrastructure” (‘the December 2020 consultation’).
All of the Class MA proposals that form part of this current consultation, had been either rejected or introduced as an outcome of that 2020 consultation (see Table 1 below).
The current consultation asks whether Class MA PD right should:
  • Have no floorspace cap, limit it to 3000sqm, or retain it at 1,500sqm?
  • Have no period of vacancy required prior to the prior approval application being submitted?
  • Apply on all Article 2(3) land[1] (e.g. conservation areas) but not World Heritage Sites?
  • Require consideration of the “character or sustainability of the conservation area” for ground floor level proposals
It is interesting that the Government is revisiting these matters, perhaps to explore whether fears have been realised, or whether there is in fact scope to provide more flexibility.
The vacancy requirement arose from public consultation responses to the 2020 consultation. The Government says that it would like to remove this requirement, because: “The existing permitted development right requires that the premises be vacant for a continuous period of at least 3 months immediately prior to the date of the application for prior approval. This was introduced to safeguard against businesses being displaced. However, we believe the requirement may be ineffective and could result in property being left vacant for longer periods. In order to provide greater flexibility for owners, enable more premises to change use, and therefore to deliver additional homes, it is proposed that this vacancy requirement is removed”.
Where a proposal lies in a conservation area and involves a change of use of the whole or part of the ground floor, Class MA prior approval applications are subject to an additional matter. The decision maker must consider the “character or sustainability of the conservation area”. The Government would like to remove this matter, noting that it is unique to this PDR and does not relate to the consideration of physical works. This logical argument was made in 2020, but rejected. Perhaps because there was simply too much change perceived to be happening at once and fear surrounding the successful implementation of local plan policy following the introduction of Class E and a new wide ranging permitted development right? Fear which might has rescinded or must be looked past in order to encourage re-use of buildings.
World Heritage Sites, are sometimes designated for reasons connected to their use, so their exclusion from the PDR is as logical as the inclusion of conservation areas.
The Government is alive to the potential impact of these Class MA amendments and is asking if they might affect businesses, local planning authorities and/or communities. Critically, the consultation also asks “Do you think that changes to Class MA will lead to the delivery of new homes that would not have been brought forward under a planning application?”. This nods to the complexity of this type of prior approval application and to the complexity of planning applications and the obligations arising from the permissions that follow. Are Class MA PDRs simply providing an alternative way through an onerous system, rather than simply ensuring that development with few or no impacts can proceed easily? For the experts it will be the latter, and for others they will need to employ an expert to advise them on what their options are.
Table 1 comparison of December 2020 and July 2023 PDR consultation questions

Expansion of PD for sui generis shops and services to residential

A smaller slice of PD for uses outside of Class E?
PDRs that allow change of use from betting office, pay day loan shop, hot food take-away/pay day loan shop/betting office/launderette/amusement arcade or a casino to residential PDRs are currently capped at 150sqm of conversion floorspace. This may mean that only part of the available floorspace may be converted without express planning permission via these Class M/N PDRs.
The Government proposes to double this to floorspace limit to 300sqm or to remove the cap altogether.
It is also proposed that instead of requiring buildings to have been in the relevant use from dates many years ago, when each PDR was announced, there would be a rolling requirement for the building to fall within the given use during the two years before seeking approval for conversion.
Furthermore, Class M and N PDRs are to be permitted on all Article 2(3) land except World Heritage Sites, as with Class MA PDRs.
Scrubbing away the launderette to residential PDR
In 2015, Lichfields questioned the wisdom behind then proposed launderette to residential PDR. Noting that launderettes are already in decline, converted launderettes would create small dwellings, not everyone owns a washing machine and perhaps most critically, it would make a negligible contribution to meeting housing needs, with potentially adverse consequences.
Seven years after its introduction, the Government has concluded:
“Launderettes can provide a valuable community service in certain areas”.
Accordingly, this PDR is to be repealed.
More time for markets?
PDRs allow for the temporary use of land for any purpose for up to 28 days per calendar year, of which up to 14 days can be used for markets, motor car and motorcycle racing (under Class B of Part 4 of the GPDO). Views are being sought on whether this is amended so that markets can operate for a different number of days, potentially 28 days per calendar year, which would bring it in line with other uses permitted under this PDR. Temporary use for motor car and motorcycle racing would remain limited to 14 days. This tidying up exercise seems sensible.

Extensions to non-residential buildings

Commercial Business and Service use extensions
PDRs permit the extension or alteration to a Commercial, Business and Service establishment, under Part 7 Class A of the General Permitted Development Order (GPDO). Currently, the gross floorspace of the original building cannot increase by 50% or 100 square metres (whichever is less). The consultation proposes providing greater flexibility, so that the current floorspace limit of extensions or alterations is increased from 50% or 100 square metres of floorspace (whichever is less) to 100% or 200 square metres of floorspace (whichever is less). The floorspace thresholds for extensions or alterations on article 2(3) land or a site of special scientific interest will be retained. 
Industrial and warehousing extensions
Presently, PDRs (Part 7, Class H of the GPDO) allow for the erection, extension or alteration of an industrial building (Use Class B2) or warehouse (Use Class B8). The consultation proposes that the current floorspace threshold of new buildings permitted under the right in non-protected areas should be increased from 200 square metres to 400 square metres (other limitations remain). These changes would not apply to new buildings on article 2(3) land or a site of special scientific interest. 
It is also being proposed to increase the floorspace threshold for existing warehouses and industrial buildings. In non-protected areas it is proposed to increase floorspace thresholds from 1,000 square metres of floorspace or a 50% increase over the original building (whichever is less) to 1,500 square metres of floorspace or a 75% increase over the original building (whichever is less). Once again these changes would not apply to buildings on article 2(3) land or a site of special scientific interest and height restrictions and other limitations remain.
Open prisons to benefit from closed prison PDRs
Part 7 Class M of the GPDO allows for certain “extensions etc for schools, colleges, universities and hospitals”. This was amended in 2021 to increase the threshold for the amount of new floorspace permitted and to change the height limitation, while also allowing closed prisons to benefit from the right, alongside education providers and hospitals.
Since 2021, buildings benefiting from Part 7 Class M have been allowed to expand their facilities significantly - by up to 25% of the footprint of the current buildings on the site, or by up to 250 square metres, whichever is the greater. See this Planning Matters blog for more detail.
The proposed changes in this consultation would see Part 7 Class M apply to open prisons as well as prisons with a closed perimeter. It is not proposed to make any changes to the existing limitations.

A nature-based solutions PDR?

Within the consultation there is a call for evidence by the Department for Environment, Food and Rural Affairs (DEFRA), regarding nature-based solutions, farm efficiency projects, and diversification.
Of interest beyond the agricultural sector is the discussion regarding some nature-based solutions need planning permission. Nature based solutions include projects seeking to use, manage, change or restore an area of land to address environmental issues, such as nutrient pollution, flooding, climate change or biodiversity loss. It is noted that use of land for agriculture or forestry does not require planning permission, but associated works, such a flattening the land might. In this context the consultation says:
“Some planning decisions have considered that changes in land use from agriculture to non-agricultural landscapes (such as peatland restoration, sand dune reprofiling and the creation of wetland habitats) have constituted a material change of use that requires planning permission”.
Acknowledging PDRs do not apply to EIA development or development requiring Habitat Regulations assessment, the call for evidence asks, among other things:
“Q.69 Would a specific and focused permitted development right expedite or resolve a specific delivery challenge for nutrient mitigation schemes?
Q.70 Please provide specific case studies (including planning reference numbers where available) which can help us understand what issues farmers and land managers are facing in relation to nature-based solutions.
Q.71 Would these issues be resolved by amending planning practice guidance or permitted development rights, or any other solutions?
Q.74 Do you foresee any unintended negative consequences that may result from more nature-based solutions coming forward (e.g., impacts to other species, flood risk, wildfire risk, risk to public safety, releasing contaminants from contaminated land or hydrology etc.)? How could these be avoided?”
It is encouraging that DEFRA is seeking to smooth the way for nature based solutions, in order that development relying on their implementation can proceed swiftly.

Closing thoughts

This is a wide-ranging consultation and, from a town centres perspective, little trailed.
The revisiting of concerns raised in the past to see if they remain valid is positive provided the Government truly engages with the responses. It is of interest that the questions seek to understand the perspective of the consultation respondent.
The repealing of the launderette to residential PDR and the proposed changes to (encouragement of) other high street PDRs shows the Government turning the PDR taps on and off, or setting them at half flow, trying to balance the planning and associated political impact of the PDRs vs planning permission conundrum, while still being seen to be cutting red tape. Given the relatively limited advantage of the prior approval route to applicants, in some cases due to numerous prior approval matters, it is interesting that this consultation is still trying to get it right. With so many uncertainties around timescales for the determination of planning applications, and the numerous submission requirements to be met, perhaps the background to these new PD proposals lies as much in an acknowledgement of the complexity and risk of planning applications, as it does in a view that there are insufficient planning freedoms to allow the delivery of much needed homes?
The same questions will flow from this consultation as from the last, such as how do the planning obligations, such as affordable housing, apply to large scale conversions?
The Government has asked the key question itself “Do you think that changes to Class MA will lead to the delivery of new homes that would not have been brought forward under a planning application?” And it has anticipated concerns that will inevitably follow about the quality of some of what is provided.
The acknowledgement of the need to support nature-based solutions is good news.
The permitted development rights consultation will run until 25 September 2023

[1] Article 2(3) land is defined as conservation areas, areas of outstanding natural beauty, areas designated under s.41(3) Wildlife and Countryside Act 1981, National Parks, the Broads and World Heritage Sites are Article 2(3) land.




Long-anticipated plan-making reforms were launched by Government in the early hours of 25 July, for public consultation (running for 12 weeks until the 18th October). The consultation sets out its ‘direction of travel’ and how the Government proposes to re-shape the system in light of the legislative changes in the Levelling Up and Regeneration Bill (LURB). It also comes hot on the heels of a somewhat negative report from the LUCH Select Committee which criticised various aspects of the planning reform proposals[1].
The central vision for reformed plan-making is for simpler plans, prepared quickly, updated frequently and reflective of local needs. The Government envisages a phased roll out, with the new local plans system commencing in November 2024 and sticking to the timescale it announced in December 2022[2], even though the parliamentary timetable is running some months behind schedule.
Much of the announcement relates to recent consultations on the Environmental Outcome Reports; Infrastructure Levy; LURB reforms to national planning policy[3] (Dec 22) and the May 2022 Policy Statement on LURB[4].

What is being Consulted on?

The consultation covers the following proposals: 

Making the role and content of plans clearer:

  • A clearer set of expectations for what a local plan must contain.
  • National development management policies will be re-consulted on but remain key to focussing local plan content to local issues only.

Speeding up the process for preparing a plan:

  • A timeframe of 30 months (two and half years) to prepare and put in place (adopt) a plan. 
  • Three new Gateway assessments to provide live assessments and support and reduce time spent at examination. 
  • A requirement for planning authorities to start updating their plans every five years.  

Ensuring local communities are engaged:

  • Additional to the existing two periods of public consultation, a new requirement for planning authorities to “notify” and “invite” early participation on matters that might shape the direction of the plan, to ensure that communities and other key stakeholders are able to participate much earlier in the process.

Dealing with complexity:

  • The proposals aim in sum to add clarity about what is expected at every stage of the plan making process and to reduce repetition through the development management policies.

Making the most of digital technology:

  • In keeping with the ongoing commitment to digital transformation, digital technology is highlighted as a way to speed up the production of plans and consultation and make the process simpler and more accessible.

Are changes needed?

In short, yes, these proposals arrive with plan making at a particularly low ebb.
The hiatus that began in 2020 with the publication of the Planning for the Future White Paper[5] continues; the rate at which local plans were submitted or adopted last year fell to its lowest level since the NPPF was introduced (see charts below). Scores of Local Plans have been put on hold, particularly following the December 2022 Ministerial Statement[6].

Coverage of ‘up-to-date’ Local Plans is low and declining. Recent Lichfields analysis (on behalf of the LPDF) shows that, in July 2023, just a third (33%) of Local Plans were ‘up to date’ and less than five years old[7]. The consultation itself acknowledges “few [local authorities] are at an advanced stage of preparing a new one”. Under prevailing trends, we estimate it will fall to just 22% by the end of 2025 under the current situation.
A plan-led approach to house building relies on sites being allocated in local plans. Currently, the aggregate annual housing requirement figure (so-called targets) across all adopted local plans in England is circa 224,000[8], well short of the Government’s 300,000 ambition, but remarkably similar to the number of homes built each year[9]. Instead of rising to meet this figure, recent trends have started to show a fall in the number of planning permissions granted for residential development.
The Government has set a 30-month timeframe for preparing and adopting a local plan or minerals and waste plan . In practice, taking into account six months for examination and one month to adopt – this becomes 23-months. A new local plan timetable (to replace Local Development Schemes) formalises the path to an adopted local plan. Helpfully for local authorities, a scoping period before the “clock starts” could provide some wriggle room to what is a challenging timeline.
The consultation includes proposals for a set of revised tests of soundness; gateway assessments during plan-making; examinations; community engagement and monitoring. There is also a recognition of the growing importance of supplementary plans, setting out their appropriateness (e.g. bringing in a design code), rather than sometimes being used to adapt local plans.
Community land auctions are also discussed with the process for pilot authorities set out, including the potential financial benefits to the Council from these auctions - we will be revisiting this area in further research.
Revisions to the test for soundness are intended to reduce the amount of evidence required to develop a plan and defend it at examination, but still ensure high quality plans are delivered. This would be done through (a) increasing the standardisation of key evidence and data, (b) freezing data or evidence at particular points of plan making, (c) streamlining new style plans to focus on local issues, and (d) support on building the evidence base through new formalised gateway assessments.
Three formal Gateway Assessments at the beginning, middle and end of the process for preparing a plan, are proposed to support plan preparation and help identify issues in local plan evidence bases before examination. Additionally, a timetable of plan development will be introduced to be updated every six months and publicly available. There is also a ‘light touch annual return’ monitoring process, as a minimal version of an annual monitoring report.
A six-month target for examinations of local plans is set out; however, acknowledging that this could impede on thoroughness in the most complex of examinations, this is advisory and not set out in regulations.
The changes proposed also aim to increase community engagement opportunities without slowing down plan making through using more digital opportunities, greater monitoring (through the gateway assessments and timelines) and a more standardised approach to consultations (defining the role more closely for the two mandatory consultation windows).
A key theme of the changes envisaged to help quicken plan-making is reform through digitalisation (a task with which Lichfields is providing assistance to DLUHC), but this runs alongside a more fundamental overhaul of key elements and processes involved in plan making.

Will these changes make the difference needed?

In sum, the Government seeks a more streamlined, standardised approach to plan making with clear timelines and reporting against milestones and outcomes to keep things on track. Supporting this objective is the aim of reducing the scope of local plans, as discussed, including by introducing national development management policies, as previously announced.
While the stages that a planning authority has to go through will be set out in regulations (Reg 18 and 19 to be replaced with new stages), the requirement to achieve it in 30 months will only be in policy and guidance, not the regulations.
Lichfields’ assessment of local plan completion timelines found that some local authorities have managed to complete local plans from ‘Issues and Options’ to formal Reg 22 submission within the 30 month time period set out, notably Broxbourne, Maidstone, Crawley and Northumberland. However, given most local authorities have taken far, far longer (the consultation acknowledges seven years on average), the new 30-month timeline will be a significant challenge, particularly in locations where decisions on how to meet development needs results in difficult political decisions.
Our forecast of local plan coverage by 2025 shows areas with the highest coverage of constrained land (protected by policies listed Footnote 7[10] of the Framework) will be more likely to have a local plan that is ten or more years old (see Chart below).
Slow plan making and attempts to speed it up are not new. The Planning Advisory Group (PAG) was set up in 1964 and made recommendations to simplify the process of producing plans and increase the speed at which they were prepared. In 2003, Lichfields carried out a review for Government on the implementation of PPG3 and found that only 13% of local plans and 35% of structure plans had been adopted to implement the then new ‘brownfield-first’ planning policy[11]. In 2015, the Local Plans Expert Group was set a similar task to PAG[12]. In November 2017, Government launched a process of intervention in 15 local authorities[13] and the then Secretary of State said that “my patience has run out”[14]. That intervention – which did not result in any LPAs having their plans taken over by Government – followed a previous deadline set by Brandon Lewis in 2015. Powers of intervention were complemented by the housing delivery test – ostensibly focused on incentivising home building, but whose “stick” of a tilted balance towards sustainable development was designed to encourage local authorities to make local plans and thus shape where development happens (arguably the policy has proved relatively toothless[15]).
This sorry tale does not mean that we should not try to speed up plan making. If we are to have a plan-led system, the ambition of full local plan coverage across the country and for authorities to produce them more quickly is obviously right. The vision set out in the proposed changes – for a simpler, positively shaped, up to date plan led system - is one to be applauded. The proposals set out including national development management policies, setting out gateway assessments to identify blockages early, digitalisation and the aim to simplify some of the shared challenges across authorities holds significant promise, if executed correctly.
In this regard, ongoing questions remain. A much tighter timeline for plan making has been suggested but is not regulated for; it remains to be seen whether more authorities meet these timeframes. Bluntly, for authorities facing the most politically difficult decisions, the proposals do not, in of themselves, make these decisions any easier or examination automatically much quicker.

The focus on improving the mechanics of local plan making while important, does not directly address the reality of preparing a local plan that both meets local housing needs and is met with local support in areas where historically there has been conflict between these two objectives.
Perhaps most glaringly absent are proposals around the ‘flexible alignment test’ that is expected to replace the duty to cooperate and address the challenge of what happens when authorities have higher local housing need than they are able to meet within their boundaries and thus need to work with their neighbours. This policy will be key in setting a strategic planning approach. This will be crucial to planning for and subsequently building enough homes, especially in urban areas, notwithstanding the Secretary of State’s long term plan for housing centred on a brownfield-led agenda.
Interestingly, the ‘top down’ approach that the Government is anticipating for Cambridge (not without some local backlash) and in London, is seemingly poised to be delivered through development corporations, and might signal that Government is looking to deal with the challenge in different ways, outside of the plan-led system. Perhaps this is an acknowledgement that, while the proposed reforms might improve the process of plan making, meeting the challenge of providing sufficient the right homes in the right places requires an escalated solution.

[1] The LUHC Select Committee Report, available here[2] As explained in the December 2022 Consultation Paper here[3] LURB reforms to national planning policy, available here[4] LURB Policy Statement, available here[5] The White Paper can be found here[6] See blog analysis here[7] Whether a Local Plan policy is ‘up-to-date’ is a matter of fact and judgement as per the 2014 Bloor Homes High Court judgment ([2014] EWHC 754 (Admin)) which defined the question at para 45. However, for the purposes of the analysis, the five-year period is a relevant metric because of the statutory requirement to review a plan every five years and the provisions of NPPF para 74 which state that the relevant housing requirement figure for five-year housing land supply purposes switches from the Local Plan housing requirement to the Standard Method Local Housing Need figure once the strategic policies are more than five years old (unless reviewed and found not to need updating). For the purposes of the analysis, Local Plans are defined as Development Plan Documents with strategic policies.[8] Source: Lichfields’ Local Plan monitoring[9] Which has seen average annual net additions for the past three years at 229,000.[10] Habitats sites, Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, a National Park (or within the Broads Authority) or defined as Heritage Coast; irreplaceable habitats; designated heritage assets and areas at risk of flooding or coastal change[11] As reported in this blog reviewing what happened with PPG3[12] The LPEG Report is available here[13] See ministerial statement here[14] His speech is here[15] Lichfields analysis found that not only was the housing delivery test toothless in delivering more housing in all but one authority, the recent amendments have watered down the ‘stick’ of the tilted even further.