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Planning matters

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Project speed gathers pace – more permitted development rights for education, hospitals, prisons and ports
The latest batch of new and revised permitted development rights seek to set the foundations for ‘Project Speed’, the Government’s strategy to bolster England’s public infrastructure and harness its economic recovery, following the impact of the pandemic and the UK’s exit from the European Union. The Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021 will introduce revisions to The Town and Country Planning (General Permitted Development)(England) Order 2015 (GPDO). The legislation is set to come into force on 21 April 2021, though the timing of certain provisions may vary. While the property press headlines focus on the introduction of the new permitted development right for converting vacant buildings that fall under the new Use Class E to residential (covered in this blog, Class MA: Mercantile to Abode ), this blog looks at other changes, which are focused on supporting public bodies construct new buildings and structures and carry out other alterations and renovations. These also sit alongside separate permitted development rights which will grant port operators the same powers as those vested to airports, which will allow for small scale development without the need for planning permission. Commenting on the changes, Communities Secretary Robert Jenrick commented: “The public also want improvements to public services as quickly as possible and so these changes will also help schools and hospitals to adapt quickly to changing needs with a new fast track for extending public service buildings. This will help deliver more classrooms and hospital space by helping them extend further and faster.” The changes will significantly increase the envelope of what is considered as acceptable without making an application for planning permission. We cover the key changes in detail below: Greater flexibility for schools, colleges, universities and hospitals to extend The big change for public service providers is the amendments to Part 7 Class M of the GPDO (2015). This permitted development right allows for the “extensions etc for schools, colleges, universities and hospitals”. The amendments increase the threshold for the amount of new floorspace permitted, while also now allowing prisons to benefit from the right, alongside education providers and hospitals. This class of the GPDO allows for new buildings as well as extensions, though these must be within the same use or ancillary to the existing use, while any new development must be situated within the curtilage of the premises’ boundaries. Buildings benefiting from Part 7 Class M will now be allowed to expand their facilities significantly - by up to 25% of the footprint of the current buildings on the site as of 21 April 2021, or by up to 250 square metres, whichever is the greater. This was previously limited to 25% square metres of the ‘original building’ or 100 square metres (with the exception of schools which were already capped at the new lower limit of 250 square metres). The height limit for new buildings (which does not include plant) has also increased from five to six metres, though this will remain capped at five metres within ten metres of a boundary of the curtilage of the premises. The “original building” continues to exclude buildings already erected under Part M. And the provision stating “where 2 or more original buildings are within the same curtilage and are used for the same institution, they are to be treated as a single original building in making any measurement”, does not appear to have been changed. Whereas some other permitted development rights, such as those for upward extensions, expressly provide for related building operations, such as access and egress, related storage, waste and plant etc; Part 7 Class M as amended only refers to buildings. Permitted development rights for the provision of hardstanding already exists for schools, hospitals and universities under the Class N of Part 7 of the GPDO. Surprisingly, perhaps, these remain unchanged though are limited to just 50sqm in total. No prior approval is required for schools, colleges or hospitals wishing to benefit from the extended PD rights. However, where the expansion of a school results in any increase in the school’s admission numbers, a travel plan must be submitted for the site within six months from the date of completion. This will need to outline the long-term management strategy for providing sustainable transport to and from the premises. Given the relative scale of many universities and the central and sometimes sensitive locations they often occupy, prior approval is however required for the following matters: transport and highways impacts of the proposed development; the design and external appearance of the erection, extension or alteration; or the impact of the development on heritage and archaeology. Where an application for prior approval is required, as with other prior approval procedures, development must not begin before the LPA either determines prior approval is not required, grants prior approval or the expiry of 56 days following valid application submission, without the LPA giving a decision. The Explanatory Memorandum confirms that secondary legislation is expected to introduce a fee of £96 for prior approval applications made by universities. As with the current requirements for Class M, development is not permitted within the curtilage of a listed building. Furthermore, the Class M materials condition relating to development on Article 2(3) land (i.e. national parks, Areas of Outstanding Natural Beauty, conservation areas, the Broads, and World Heritage Sites) will also continue to apply, requiring new buildings and extensions to use materials of a similar external appearance to those used of the original buildings. This would only be assessed where external appearance is a prior approval matter – i.e. for universities. For schools, colleges, hospitals and prisons it would be for the developer to ensure that this condition is met. Expanded PD rights for ports, canals and other water related transport systems The new legislation has also expanded the permitted development rights for docks, harbour, water transport, canals and other inland navigation undertakings. The new measures relate to previous commitments made following the Government’s Freeports consultationlast October. Article 10 of the Amendment Order will widen the scope of Class B of Part 8 of the GPDO to provide, as the explanatory memorandum states, “dock, pier, harbour, water transport, canal or inland navigation undertakings greater flexibility to undertake development, supporting ports as an important economic agent further to the exit of the UK from the EU”, while also permitting such development to be undertaken by the statutory undertaker’s agent of development, allowing for works be undertaken by others on the behalf of the operator. The amendments include text, stating that development is now deemed to fall within Class B of Part 8 where: a.  it is urgently required for the efficient running of the dock, pier, harbour, water transport, canal or inland navigation undertaking, and b.  it consists of the carrying out of works, or the erection or construction of a structure or of an ancillary building, or the placing on land of equipment, and the works, structure, building, or equipment do not exceed 4 metres in height or 200 cubic metres in capacity The changes now bring PD rights for ports and similar water transport infrastructure in-line with those available to airports. With the UK now outside of the EU, there will likely be other planning changes in tow aimed at supporting the movement of goods, and the Government’s objective of delivering growth and regeneration through the introduction of Freeports. The Government had also previously stated it will consider a review of the current National Policy Statement for Ports (NPSP). Conclusions The changes reflect the general direction of travel for the planning system, with Ministers streamlining the application process for certain types of development, by expanding permitted development rights and simplifying the classification of use classes; for once the Government has very little to say about the design or appearance of development, except where this may potentially impact on designated heritage assets. The added flexibility will likely be welcomed by some operators, allowing for greater flexibility in adding additional capacity, while also allowing for the reconfiguration of existing buildings – something which many businesses and organisations have grappled with in responding to COVID-19. Clearly some public service and port infrastructure development will fall outside the remit of the newly expanded permitted development rights. In its response to the December consultation on these changes, the Government has confirmed that it will go forward with its plans to streamline the application process for ‘major development’ in this area, which will likely be brought about principally through amendments to the Town and Country Planning (Development Management Procedure) (England) Order 2015. It has stated that these will involve: reducing the statutory determination period from 13 weeks to 10 weeks; shortening the statutory consultation period from 21 to 18 calendar days; requiring that local planning authorities notify the Secretary of State when they anticipate making a decision; and making clear that the policy in paragraph 94 of the National Planning Policy Framework about the importance of pre-application engagement is extended to these types of development. Although we await further detail on these additional measures, the Government has stated it intends to introduce them by the end of August 2021.   The Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021MHCLG, Government response to consultation ‘Supporting housing delivery and public service infrastructure’    


Purpose-built student accommodation – time to take stock
On 21 May 2020 the Vice-Chancellor of Cambridge University made a statement[1] outlining its response to the COVID-19 pandemic and how the university is likely to function in the future. Professor Toope explained that the University would not be able to deliver all face-to-face lectures for the academic year 2020/21 and that these are likely to be replaced by online lectures. However, it is acknowledged that lectures are only one component of a successful university experience and that other elements such as small-group teaching, supervisions and practicals are expected to continue in person but taking account of social distancing requirements. Other UK universities have made similar statements. Impact on student recruitment There is a real possibility that students will not wish to attend university in 2020/21 due to the fear on missing out on the traditional university experience, that the alternative provision will not provide the same quality of learning, concern about living away from home or because of public health concerns. Students may defer until 2021/22 or suspend plans on a longer-term basis. Analysis by London Economics[2] estimates that as many as 110,000 students in Britain could delay going to university in 2020/21 if classes remain online, causing a “severe” financial hit to academic institutions. Total decline in international students alone is expected to be 120,755 across UK universities. With higher fees paid by international students this could have significant financial impacts in the short term. If 1st year students are not registering for courses and returning students are not attending in person then this has the potential to have huge consequences on towns and cities that depend on students to ensure the vitality and viability of its communities. If learning is going to be online then the need for student accommodation as well as other supporting facilities is reduced. Impact on student accommodation sector The reduced number of students registering and number of existing students deciding to study from home via online classes is likely to have a significant impact on the student accommodation sector in the short term. This includes student accommodation owned by the institutions, private housing stock as well as private purpose-built student accommodation. Purpose-built student accommodation has seen a boom recently with schemes coming forward in most university towns and cities. Purpose-built student accommodation has become increasingly popular for students. The benefits are clear: often, a better standard of living, on-site facilities as well as increased security and the benefit of not having to deal directly with landlords/agents. I discussed this in a previous blog. Purpose-built student accommodation schemes that are currently under construction for occupation by the class of 2020/21 as well as existing operational buildings may no longer be in a position to attract the number of students (especially international students) initially anticipated and planned for due to the reduced number of students attending in a post COVID-19 world. Unsurprisingly, this creates a headache for the developer as the return on investment anticipated will not be realised in the short term. Clearly this is not a sustainable position and therefore it will be necessary to review whether the asset can be used for another purpose in the interim so that some income can be achieved, otherwise there is a risk that the financial asset becomes a burden. Many Section 106 agreements or planning conditions restrict purpose-built student accommodation to students on full academic years, some even to specific institutions. Now is the time to seek agreement from the Local Planning Authority to permit use by students from other educational institutions, such as language colleges or the like who have short-term needs for accommodation but struggle to place students, this will further add to the resilience of the stock along alongside considering temporary changes of use. Planning permission for temporary change of use The circumstances we find ourselves in currently are not normal and there is, in our opinion a need for pragmatism and flexibility from local planning authorities in terms of allowing purpose-built student accommodation buildings to be used for an alternative use temporarily until student numbers recover. From our experience some authorities already take a pragmatic view on temporary uses and acknowledge that it is sensible to allow buildings being completed in the middle of an academic year to be occupied by non-students until the start of the new academic year. It is already common practice for purpose-built student accommodation blocks to function as apart-hotel accommodation outside of term time catering for peak tourism demand. Lichfields has been successful in securing this flexibility on a number of schemes across the country. The format and configuration of purpose-built student accommodation range from studio rooms with a bathroom (and sometimes kitchen) as well as communal areas to bedrooms in a cluster flat with shared communal kitchens, bathrooms and living space. This appears to point towards potential suitable alternative uses such as hotel or hostel (use class C1), short term private rented accommodation (use class C3) or a combination of these uses such as aparthotels / serviced accommodation. In addition, there could well be a scenario where part of the building continues to be used for student accommodation and part for the alternative use. This will depend on how the building functions internally and the anticipated number of students. Residential space standards will apply (in England) and therefore a robust case will need to be put forward to argue for some deviation. A building with communal space, including outside amenity space could mitigate for smaller rooms and the fact that the permission is temporary should find support with pragmatic Local Planning Authorities. We note that in Cardiff, Fusion Students have recently applied[3] to continue using up to 401 rooms within its Zenith scheme as serviced apartments (Use Class C1) instead of student accommodation. They had previously been successful in securing permission to use the building in this way for a period of 12 months. Fusion note that this approach is being taken on other sites throughout England and Wales. In this instance the non-students are able to use the communal spaces and facilities together with the students. It will be important to consider how this will work in practice. The takeaway message The purpose-built student accommodation market is likely to be significantly affected by COVID-19 in the short term and therefore it is important to review contingency options for schemes that are impacted and to open dialogue with the local planning authority as soon as possible. Lichfields is well placed to negotiate onerous planning restrictions on use, Section 106 clauses or planning conditions as well as making the case robustly for temporary changes of use to support the purpose-built student accommodation recovery from COVID-19. Contact Lichfields to discuss any planning queries that you may have.   [1] Coronavirus (COVID-19) Update from the Vice-Chancellor (University of Cambridge - May 2020)[2] Impact of the Covid-19 pandemic on university finances (London Economics – April 2020)[3] Serviced apartments use extension sought for Cardiff scheme (Insider Media Wales - May 2020)