England planning news, December 2020


England planning news, December 2020

09 Dec 2020



Headline news


New MHCLG consultation on permitted development rights and streamlining public social infrastructure applications

Broad commercial and retail to residential change of use PD rights proposed
The Government is consulting on a new Commercial, Business and Service (Class E) to residential (Class C3) change of use permitted development (PD) right. The same consultation also considers how to consolidate and revise some existing PD rights – predominantly those which are out of step with new Use Class E.
Another part of the consultation proposes new permitted development rights and fast tracked planning applications for schools, colleges and universities, hospitals and prisons; this is covered in more detail below.
New Use Class E includes offices, most retail, financial and professional services, restaurants, gyms and creches.
The proposed changes are very significant, particularly because many buildings that do not benefit from existing PD rights to change to residential would benefit from the new permitted development right. The consultation says:
“The existing right for the change of use from office to residential (Class O), that has delivered 54,000 homes in the 4 years to March 2019 would be subsumed within the new right. However, more buildings would be in scope as they would no longer be required to be in use on 29 May 2013. Similarly, more shops and financial professional services premises would be able to benefit than under the existing Class M right as it is proposed to have no size limit and buildings would not be required to have been in use on 20 March 2013.
Depending on the final scope of the right and how suitable the non-office buildings within the use class are for residential development there could be a significant increase in housing delivery above the 13,500 -14,000 p.a. average currently delivered through the existing rights".
As with many of the more recent permitted development rights relating to dwellings or change of use to dwellings, an application for a determination as to whether or not the local planning authority’s prior approval is required will be a condition of the permitted development right.
In terms of how the prior approvals for these applications will work, the Government says:
“In considering which prior approvals to apply we have drawn on those generally accepted in other permitted development rights that deliver new homes in order to deliver quality homes in suitable environments".
The proposed prior approval matters are:
“Similar to other permitted development rights for the change of use to residential:
  • flooding, to ensure residential development does not take place in areas of high flood risk
  • transport, particularly to ensure safe site access
  • contamination, to ensure residential development does not take place on contaminated land, or in contaminated buildings, which will endanger the health of future residents
To ensure appropriate living conditions for residents:
  • the impacts of noise from existing commercial premises on the intended occupiers of the development
  • the provision of adequate natural light in all habitable rooms
  • fire safety, to ensure consideration and plans to mitigate risk to residents from fire
To ensure new homes are in suitable locations:
  • the impact on the intended occupiers from the introduction of residential use in an area the authority considers is important for heavy industry and waste management”
Unlike the current Part 3 Class M residential to retail PD right, it will only be necessary to assess the impact of loss of retail (and at ground floor only) in conservation areas “in recognition of the conservation value that retail frontage can bring”. This would not take into account the potential retail frontage benefits of department stores that are not statutorily listed – presumably deliberately in order to maximise the number of homes this permitted development right would deliver.
The consultation invites comment on the proposed prior approval matters and whether there should be additional matters.
The application fee is proposed to be £96 per dwelling, up to a maximum the fee for 50 homes – i.e. £4,800. The low application fee, limited prior approval matters and no reference to s106 or Community Infrastructure Levy contributions (although the Government has indicated that planning contributions for permitted development that creates homes are on the way) appears to incentivise very large office and retail sites, for example, to explore options. Should this permitted development right go ahead, it might be difficult to understand what is in the housing delivery pipeline, if its attractiveness leads to many exploratory applications on large sites, rather than plans to deliver.
The consultation’s take on the benefit to local authorities is that they “would benefit from reduced volume of planning applications, offset by a reduction in fees”. This appears to assume that all of the sites for residential would have come forward anyway, rather than the new PDR encouraging sites to come forward that would not have done – notably those allocated for other uses within the local plan.
The consultation also covers the need to review The Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO), following the introduction of Class E and the temporary requirement to interpret some permitted development rights with reference to pre-September 2020 use classes, until July 2021. Views are sought on the broad approach to be applied.
The Government believes there are almost 50 provisions to review in this context (see Annex A of the consultation) and has divided these into four categories: now obsolete PDRs, PDRs where no is amendment necessary, those intended to benefit from the new Class E to Class C3 PDR and those which require more detailed consideration. The examples given for those in category 4 have largely arisen due to deleted Use Class D2 being split between new Use Classes E and F2. Some of these permitted development rights may become more restrictive, for example if physical works are no longer permitted, while others might benefit from a change to or from Use Class E, rather than solely one of the uses falling within it. Some changes of use via permitted development are possible within conservation areas and other protected land, while others are not and the Government “will consider the balance of safeguards to be provided”.
There may be changes to the wording of the new Part 20 PDRs for new dwellinghouse (upwards extensions and knock down and rebuild), but not to their scope.
New consultation on streamlining public service infrastructure application procedures
Another element of the above consultation are proposals to streamline public service infrastructure application procedures.
A forerunner of Project Speed (see below) and the recent raft of planning reform, these proposals are two pronged: new permitted development rights and fast track ‘public service application process’.
It is proposed to amend Part 7 Class M “extensions etc for schools, colleges, universities and hospitals” of the GPDO to increase the amount of new build development permissible and to allow prisons to benefit from the PDR. Planning permission would be required if additional land not within a site was needed to build the development.
Sites currently benefiting from Part 7 Class M and prisons would be allowed to expand their facilities by up to 25% of the footprint of the current buildings on the site at the time the legislation is brought into force, or up to 250 square metres, whichever is the greater. The height limit would be 6 metres.
Where the proposed public service infrastructure development exceeds the height and floorspace limits proposed and it would have been a major planning application not requiring an EIA, it would benefit from a 10 week fast track process.  This is provided the development falls within one of the public service infrastructure definitions that are to be devised for hospitals, schools and further education colleges and prisons, young offenders’ institutions, and other criminal justice accommodation, in consultation with other Government departments.
The Government estimates that each LPA would receive, on average no more than 5 applications of this type per year. There would not be a planning application fee specifically devised for public service infrastructure developments.
The consultation period would be 14 days instead of 21 days because “it is likely that local discussions and engagement with local communities will have been underway for some time prior to the submission of a formal planning application”.
These types of application are to be prioritised by LPA officers, planning committees and statutory consultees. There will be heavy monitoring of the applications: the Secretary of State (SoS) is to be notified when the application is validated and within 8 weeks of validation the LPA must notify the SoS of when a decision will be made. The SoS will also monitor LPAs’ performance on any applications to amend these fast tracked planning permissions, via s73 or s96A.
The tone of the consultation document regarding the change of use permitted development right, is that planning applications are a problem and determining fewer of them will save time and money. Whereas, the section on fast track applications for public service infrastructure acknowledges a planning application system that could be improved and sped up.
One could question the extent to which these more immediate reforms fit with the enhanced plan-led system proposed in the Planning for the Future White Paper – although it does fit with the notion that planning applications should only be required in ‘protected’ areas.
In related news, the legal challenge against the Government, seeking to quash the most recent amendments to the Use Classes Order 1987 and The Town and Country Planning (General Permitted Development) (England) Order 2015 was dismissed by the High Court on 17 November 2020; the claimant intends to appeal.

MHCLG, Supporting housing delivery and public service infrastructure (Rights : Community : Action) v Secretary of State for Housing, Communities and Local GovernmentRIGHTS : COMMUNITY : ACTION Judicial Review lost – but we intend to appeal



Quote of the month

[…] COVID-19 presents great opportunities for the repurposing of offices and retail. We need to seize that moment and ensure that we get more housing in our town centres. That is the way that we will drive footfall, and we will turn empty shops into thriving homes. We have already put in place new planning reforms to enable people to do just that, as well as to demolish vacant buildings and turn them into housing, and we will continue to find new flexibilities in the months and years ahead to do just that.
Housing Secretary Rt Hon Robert Jenrick, answering Oral Questions, 16 November 2020


Temporary planning relaxations update – including enforcement of retail opening hours

The Government has issued a press release saying that it has extended opening hours for Christmas shopping. While it is not a formal extension of opening hours, in many cases that will have been the effect of a 30 November Written Statement, which says:
“[…] local planning authorities should take a positive approach to their engagement with retailers to ensure planning controls are not a barrier to the temporary extension of retail opening times in December and January”.
As with the earlier enforcement relaxations relating to the delivery of food and other essential items, which remain in force until at least the end of March, the Government says planning enforcement that would result in the unnecessary restriction of retail hours in December and January, having regard to legal obligations, should not be undertaken.
And following a press release on 11 November, the legislation to extend the temporary changes to how planning applications are advertised and how planning documents may be inspected will be in force before Christmas.
The Town and Country Planning (Development Management Procedure, Listed Buildings and Environmental Impact Assessment) (England) (Coronavirus) (Amendment) Regulations 2020 have been laid before Parliament and come into force on 24 December 2020.
In summary, the temporary freedoms relating to the publicity requirements for certain applications, including alternatives to advertisements in local newspapers and site notices, expire on 30 June 2021. The provision allowing authorities to provide for inspection of documents online only rather than at a physical location ends on 31 December 2021.
Planning Practice Guidance has been amended to reflect the changes.
Several Conservative and Labour MPs have asked MHCLG and the Department of Culture, Media and Sport about the future of advertising planning applications in newspapers, whether the effect has been measured in terms of impact on local democracy and local newspaper revenues. The Governments’ responses have consistently noted that under COVID-19 publicity relaxations, planning applications should be advertised in the local newspaper, where necessary and there is a newspaper is in circulation. The most recent reply from the Secretary of State for Culture, Media and Sport said:
“We recognise the importance of local newspapers to communities and the continued need to reach out to people who cannot digitally access information. MHCLG is considering consultation responses and will publish a response in due course, and the impact on transparency and local democracy, as well as on local newspaper revenue will be considered before any decisions are taken".
And in the context of a question on consultation proposals within the White Paper, on 26 November, the Housing Minister said:
“The use of digital tools is important to be able to standardise and improve the user interface where local people seek to engage in the planning system. It is not a replacement for engagement but is a tool to make this engagement more transparent and more accessible to all parts of communities across England. This is particularly the case for publicity of planning applications where we want to see greater digital coverage, and we will be exploring the best way of doing that as we develop our proposals over the next year. In doing so, we recognise the importance of local newspapers to communities and that there will continue to be a need to reach out to people who cannot digitally access information".

The Town and Country Planning (Local Planning, Development Management Procedure, Listed Buildings etc.) (England) (Coronavirus) (Amendment) Regulations 2020Planning Practice Guidance: Consultation and pre-decision matters – COVID-19 sectionMHCLG press release 11 NovemberUK Parliament, Retail Update, Written Statement by Rt Hon Robert Jenrick MPUK Parliament, Planning Permission: Local Press, Question for Department for Digital, Culture, Media and SportUK Parliament, Planning Permission: Local Press, Question for Ministry of Housing, Communities and Local Government

CIL guidance updated to reflect changes to the Use Classes Order and First Homes

The Government has amended the Planning Practice Guidance (PPG) relating to the operation of the Community Infrastructure Levy (CIL). Whilst most of the changes are of a minor nature, bringing the guidance up to date with recent regulatory amendments, the changes include useful guidance in relation to uses which now fall under the new Use Class E.
This change reflects the provisions introduced under the Town and Country Planning (Use Classes) (Amendment) (England) (No. 2) Regulations 2020, which enable CIL charging schedules introduced prior to 1 September 2020 to continue to operate with the intended effect.
This provides for instances where a CIL charging schedule makes reference to any of the now withdrawn Use Classes in place prior to the commencement of the recent amendments to Use Classes Order 1987.  In these situations, any reference to a withdrawn use class should be interpreted as if it it were instead a references to the description of the use which comprised that use class. As an example, where CIL charging schedule might apply different rates to a (now withdrawn) Use Class B1 and A1, these would continue to be considered distinct from each other, as either use as an office or use as retail, despite now falling under the broader Use Class E.
The guidance also notes that the planning practice guidance will soon be updated to reflect the introduction of First Homes, once the Government has determined its response to the recent consultation.

Planning Practice Guidance, Community Infrastructure Levy

Government’s Spending Review and the National Infrastructure Strategy

The Government’s Spending Review, published on 25 November, set out £100 billion of capital investment for the year ahead, alongside multi-year funding for various projects.
These include:
  • An additional £12 million to take forward the Government’s planning reform agenda

  • For housing, the £7.1 billion for a National Home Building Fund (NHBF) to ‘unlock’ up to 860,000 homes, which includes an additional £100 million for non-Mayoral Combined Authorities in 2021-22 to support housing delivery and regeneration, including brownfield sites, regenerating estates and releasing public sector land – including serviced plots for self and custom builders. The NHBF also includes £2.2 billion of new loan finance to support housebuilders, for example through delivering Help to Build for custom and self-builders, and funding for SMEs and modern methods of construction. And it includes a ‘confirmed’ £4.8 billion of capital grant funding, including for land remediation, infrastructure investment, and land assembly

  • Linked to the proposed PD rights and fast tracked planning applications for public social infrastructure (see story above), a multi-billion capital investment to deliver the Government’s commitments on building 40 hospitals by 2030, 70 hospital upgrades and allowing hospitals to refurbish and maintain their infrastructure. Investment in 500 schools over the next decade and £4bn towards delivering 18,000 modern prison places across England and Wales by the mid-2020s

  • A doubling of flood and coastal defence investment across England investing £5.2 billion over six years

  • £1.2 billion to subsidise the rollout of gigabit-capable broadband

  • Over £22 billion of funding for High Speed 2
The Chancellor also set out plans to support the Government’s levelling up agenda by launching a new £4 billion Levelling Up Fund “that will invest in local infrastructure that has a visible impact on people and their communities and will support economic recovery”. A refreshed Green Book will also aim to better link projects and programmes to Government objectives, including levelling up and Net Zero.
The Government released its National Infrastructure Strategy alongside the Spending Review, detailing its plans to support a ‘radical improvement in the quality of the UK’s infrastructure’, including transport, industry, energy and the built environment. The new infrastructure strategy sets out four targets: boosting growth across the whole of the UK, putting the country on course to hit its 2050 climate goals, supporting private investment, and accelerating the delivery of infrastructure projects.
The Nationally Significant Infrastructure Project (NSIP) process is also being overhauled, with changes being introduced to try and provide greater certainty and speed. These changes include setting a target to cut 50% off timescales for NSIP applications by September 2023, establishing a project “acceleration team” of planning experts to accelerate infrastructure projects through the system and setting up a monitoring process of the NSIP regime to ensure that there is effective engagement with infrastructure departments, statutory consultees and the Planning Inspectorate and industry. The report also contains numerous references to reform within the planning system and learning the lessons of COVID 19, using the Nightingale Hospitals as an example of what can be achieved with efficient and productive infrastructure planning. Some of the main commitments within the Strategy include:
  • £5bn to support the rollout of 5G infrastructure across the country

  • £5bn in investment into buses and cycling

  • £4.2bn for intra-city transport links

  • £500m to restore rail links lost in the Beeching cuts of the 1960s

  • £27bn in investment for the UK’s strategic road network.

Government publishes Social Housing White Paper 

The Government has published its Social Housing White Paper, ‘The Charter for Social Housing Residents’.
Whilst the proposals are predominantly focused on improving standards for those delivering and managing social and affordable homes, the proposals may be of interest to the wider housing sector, particularly in regard to the Government’s comments on design quality, housing and tenure mix, and developer contributions.
As an overview, the White Paper builds upon the following objectives:
  • ensuring buildings are safe;
  • increasing transparency by requiring providers to make more information publicly available on performance, complaints, and spending etc;
  • improving complaints and resolution procedures;
  • transforming consumer regulation;
  • ensuring better engagement with landlords;
  • creating homes and neighbourhoods are of a decent quality; and
  • supporting tenants into homeownership.
Of particular interest to the housing sector, Chapter 6 of the White Paper focuses on the quality of new developments and makes reference to a number of recent and proposed changes to planning policy and guidance.
The Government proposes a review of the Decent Homes Standard to ensure it is delivering what is needed for safety and decency. It confirms that better energy standards will be required for social homes; it will also consider how improvements to communal space around social homes could make places more liveable, safe and comfortable.
To support this the Government also intends to introduce a new Framework of Green Infrastructure Standards, to support local authorities, developers and communities in providing green infrastructure and open spaces.  The Government is currently looking at how these principles can be further supported by national planning guidance, as well the Government’s forthcoming guidance on producing local design codes. It also states that the National Model Design Code will provide guidance on how local authorities can set out more detailed parameters for development in different locations, covering the “arrangement and proportions of streets and urban blocks, positioning and hierarchy of public and green spaces, placement of street trees, private amenity space such as gardens and balconies, and high quality cycling and walking provision”.
The White Paper reiterates the importance of building mixed communities and notes the contribution that affordable housing delivered via Section 106 agreements plays in achieving this. No reference is made to the recent consultation, Changes to the Current Planning System, which proposes to raise the threshold for affordable housing contributions to developments of up to 40 or 50 units. The Government does however reiterate that the proposals in the recent Planning White Paper for a new Infrastructure Levy would seek to deliver affordable housing at at least current levels, and that this would continue to be delivered on-site. Housing and other associated facilities should also be designed so as to be tenure neutral and socially inclusive, as stipulated by the National Design Guide.
The White Paper makes no reference to estate regeneration or the intensification of existing public sector land to deliver new affordable homes. However, it encourages local authorities to take advantage of the removal of the borrowing cap, whilst also stating “We want to see local authorities share experiences and good practice in housebuilding so they are well placed to build the next generation of council homes. It says the Government is also examining whether greater flexibilities can be offered for local authorities wishing to use receipts from Right to Buy sales in delivering more social and affordable homes.
Furthermore, Chapter 7 of the White Paper also states that the Government’s new Affordable Homes Programme will deliver up to 180,000 homes, with half the homes available for Social and Affordable Rent, and the remainder for affordable home ownership through its new shared ownership model. No reference is made to the Government’s new affordable housing tenure, First Homes, presumably because this falls under the broader category of affordable rather than social housing.
The White Paper can be read in full here.

Consultation on the Greater Manchester Spatial Framework delayed

Last month we reported that consultation on the Greater Manchester Spatial Framework (GMSF) Publication Draft Plan was to begin in December, subject to approval by the 10 constituent authorities during November.
On 3 December, Stockport Council did not approve the Draft Plan and withdrew from the process. While this had not been an anticipated outcome, indeed the Stockport Council website still links to the GMSF from its home page, the 17 November Council meeting had been postponed “to undertake further work to ensure that the final plan which is presented for consideration is the best plan for Stockport”, according to an Addendum Report to the 3 December meeting.
An 11 December meeting of the Association of Greater Manchester Authorities (AGMA) is to consider the implications of this decision for the Mayoral Combined Authority and the 10 Greater Manchester local authorities. The report to Members of the AGMA Executive Board recommends that they commend the nine other authorities to establish a joint committee with delegated authority to co-ordinate and develop a Joint Plan on their behalf as the nine local planning authorities. It is also recommended that officers to begin work to review the evidence base, spatial strategy and thematic policies.
According to the report:
“Work is underway to explore the impact of the withdrawal of Stockport Council on the joint plan, and consequently the ability for a joint plan of the 9 to progress to Publication Plan (Regulation 19) stage rather than returning to Regulation 18 [consultation] stage”.


The Lichfields perspective

The proposed permitted development rights to allow very many properties within Class E - not prohibited by a planning condition and where EIA is not required - to change to residential with no consideration of the impact on the High Street if it is outside of a conservation area, would be among the most significant planning changes in a generation. 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 would be excluded from the new PD right. The legislation would seek to protect retail in beautiful and heritage locations, but no other retail destinations. Importantly, there would not be a size limit or retail assessment required as per the current Class M PD right - delivering housing and the reuse of redundant shopping space are clearly the Government's priority.
Alison Bembenek, Associate Director


Disclaimer: This publication has been written in general terms and cannot be relied on to cover specific situations. We recommend that you obtain professional advice before acting or refraining from acting on any of the contents of this publication. Lichfields accepts no duty of care or liability for any loss occasioned to any person acting or refraining from acting as a result of any material in this publication. Lichfields is the trading name of Nathaniel Lichfield & Partners Limited. Registered in England, no.2778116