News
England planning news, July 2020
02 Jul 2020
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Headline news |
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Town centres fast tracked open for summer, with more flexibility promised by autumn
Since the start of the COVID-19 lockdown its impact on the life of our high streets and ‘town centre uses’ in particular has been of concern. For these destinations, centred around eating and drink, entertainment and hospitality, the effects have been felt hardest.
June saw the introduction on of several measures and proposed measures intended to expedite their recovery:
- A temporary permitted development right to use land, including land within the curtilage of a building (but not a listed building), for any purpose and to erect an associated moveable structure, for not more than 28 days between 25 June and 31 December 2020. ‘Any purpose’ is, with the exception of markets and motor car and motorcycle racing, for which land may be used for no more than 14 days (new Class BA in Part 4). Among the other limitations, land cannot be used for a caravan site or to display an advertisement the land cannot be a building. The associated press release referred to “more freedoms for areas to hold car-boot sales and summer fairs”, but its benefits are far wider than that.
This temporary PDR differs to the Part 4 Class B permanent PDR for temporary use of land that was already in force, because that Class B PDR relates only to land not within the curtilage of a building. For land not within the curtilage of a building that meets the other requirements, the new Class BA PDRs are in addition to the existing permitted development rights, thus giving 28 days for non-local authority markets and motor car and motorcycle racing and 56 days for other uses.
- A temporary permitted development right for holding unlimited local authority markets and setting up associated moveable structures at any time between 25 June and 23 March 2021, unless the land is a site of special scientific interest (new Class BA in Part 12).
- Proposed provisions for swiftly obtaining a combined, temporary pavement seating licence and any associated planning permission are included in the Business and Planning Bill, which is to be considered in the House of Lords soon. The new procedure would, among other things: reduce the consultation period for pavement licence applications from 28 days to 7 days (5 working days); grant the licence after 14 days if a local authority did not issue a decision; limit the locally set application fee to £100. James Fryatt’s ‘A licence to refill’ blog discusses the proposals in detail.
And Matt Pochin-Hawkes’s blog, the fourth in our ‘The High Street isn’t dead, long live the High Street’ series, discusses approaches to temporary interventions to create sufficient space for social distancing and ways restaurants and bars can optimise outdoor space.
Related to this, The Grimsey Review has published ‘Build Back Better: COVID-19 supplement for town centres’. This document supplements the original Grimsey Review (2013) and The Grimsey Review Two (2018); it considers the impact of the pandemic upon high streets and various commercial sectors therein. The document identifies three key elements which can help town centres thrive post Covid-19: leadership, providing more green space (with fewer cars/streets) and localism – i.e. empowering local people to re-design their high streets, including the services, businesses and amenities to be found there.
It is difficult to argue with the need identified within the report for leadership flexibility, imagination and speed in decision making in planning, in order to manage the significant change which is already occurring on the high street.
Although this latest document notes the need for the removal/replacement of old forms of taxation (such as business rates), it envisages more radical change in town centres, based on sustainability, quality of life and devolution of powers, and a move away from mass consumerism. In terms of planning, it advocates the deregulation of the current use classes system, the creation of a town centre safety kitemark and a more interventionist approach to tackling empty buildings (including through CPO). It also recommends the relocating of public assets to the town centre, increased powers of delegation for planning officers, and the high street itself becoming an enterprise zone – albeit without detailing how this would work in practice.
Indeed, the Government is to amend the Use Classes Order in respect of town centre uses. According to a recent press release, the Government is preparing new regulations that would allow a greater number of commercial premises to be repurposed without planning permission being required. The changes would not extend to “Pubs, libraries, village shops and other types of uses essential to the lifeblood of communities” – suggesting that a village shop will be defined in the Regulations.
The Government has also announced further commercial to residential permitted development rights, which are discussed below.
Lichfields Planning Matters, A licence to refill: how fast-track pavement licences can help pubs and restaurants spring back from lockdownLichfields Planning Matters, The High Street isn’t dead, long live the High Street #4: Repurposing our High Streets and Town Centres for Alfresco Summer DiningThe Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020UK Parliament, Business and Planning Bill 2019-2021 (House of Lords Bill)The Grimsey Review, Build Back Better: COVID-19 supplement for town centresHM Government, PM: A New Deal for BritainLichfields Guide to changing ‘main town centre uses’ via permitted development rights
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Quotes of the month |
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Today we're introducing new legislation to help businesses to make the most of the crucial summer months ahead. The Business and Planning Bill will help get our pubs, restaurants and cafes #OpenForBusiness
Business Secretary Rt Hon Alok Sharma MP, via Twitter, 25 June 2020 |
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Update on other measures to counter the lockdown
Extending and reviving permissions and consents
For months there have been repeated calls for the government to amend legislation and extend the time limits for implementing planning permission that would be due to expire during the COVID-19 lockdown period.
The Government has now introduced the Business and Planning Bill 2019-21 which includes the following measures:
- For permissions that state development must be begun between the day on which the provision comes into force and ending with 31 December 2020, there will be an automatic extension to the permission, requiring development to be begun not later than 1 April 2021.
- For permissions that state that development should have been begun between 23 March 2020 and ending with the day before this provision of the Act comes into force, it will be necessary to seek ‘an additional environmental approval’ from the local planning authority (LPA) in order for it to be extended.
- For outline planning permission that has a condition requiring the submission of an application for approval of a reserved matter to be made between 23 March 2020 and 31 December 2020, the application for the approval will need to be made no later than 1 April 2021. This will be extended automatically, with no need for a further application.
- For listed building consent which requires that works must be begun between 23 March and 31 December 2020, Clause 19 of the Bill proposes to insert new section 18A into the Planning (Listed Buildings and Conservation Areas) Act 1990, to allow works to be begun not later than 1 April 2021.
A Planning Inspectorate update says that it expects the provisions related to appeals, which would come into force on the day of Royal Assent, to be in force towards the end of July. The provisions relating to extending permissions and consents will come into force 28 days after Royal Assent, suggesting that they will take effect in mid to late August.
For more details (including the different provisions for full and outline planning permissions) please see our blog.
For more details (including the different provisions for full and outline planning permissions) please see our blog.
The Government considers that already established routes to make changes to DCOs can be used to extend commencement periods in certain circumstances and are sufficient:
“Developers can submit applications for non-material or material changes to the relevant Secretary of State. The Secretary of State can also make a material change to a DCO in exceptional circumstances. The Government expects developers to take proactive steps to ensure that applications to extend DCOs are submitted in sufficient time and the Government will actively engage with any such applications”.
Lichfields Planning Matters, Business and Planning Bill: reviving or extending permissions and consentsUK Parliament, Business and Planning Bill 2019-2021 (House of Lords Bill)UK Parliament, Planning update: Written statement - HCWS316
New route for amending construction working hours conditions proposed
Clause 16 of the Business and Planning Bill proposes a new temporary mechanism that would allow applicants to modify conditions attached to a planning permission controlling construction working hours. The aim is to allow those working on construction sites greater flexibility to support safe working in line with social distancing guidance on construction and other outdoor work. The procedure would expire at the close of 1April 2021, but this can be extended by further regulations.
New Section 74B to the Town and Country Planning Act 1990 is proposed, allowing applicants to apply to amend conditions relating to construction hours, to either:
- allow construction activities to be carried out for a longer period on a particular day; or
- allow construction activities to be carried out for the whole or part of a day on which they would not otherwise be allowed to be carried out.
The applicant must have an interest in the land and the provisions do not apply to construction hours conditions related to development of a dwelling house or its curtilage.
With reference to PINS expectations on timing (see above) the Bill is expected to reach Royal Assent toward the end of July prior to summer recess, with the provisions under Clause 16 coming into force 6 days after this date.
For further details please see our blog: Lichfields Planning Matters, New route for amending construction working hours conditions proposed
Business and Planning Bill 2019-21MHCLG, draft guidance on construction site hours deemed consentWritten Ministerial Statement, Construction update
COVID-19 related CIL amendments laid
The draft Community Infrastructure Levy (Coronavirus) (Amendment) (England) Regulations 2020 were laid before Parliament on the 30 June. They are anticipated to come into force during the summer and are proposed to remain in force until 31 July 2021.
The amended regulations give additional discretionary powers to collecting authority to defer a CIL payment by up to a maximum of six months and to disapply late payment interest and surcharge payments. A new regulation details the process for seeking to defer payments (‘deferral request’), which is only available to a developer that:
- has an annual turnover less than £45 million;
- has been served with a demand notice under Regulation 69;
- is required to pay the charge within the period from when the Regulations come in force to 31 July 2021; and
- “is experiencing financial difficulty for reasons connected to the effects of Coronavirus resulting in difficulty paying that amount”. This must be evidenced.
Another new regulation gives collecting authorities the discretion to credit interest already charged to a developer since 21st March 2020 (the date of lockdown), in certain circumstances.
For more details please see our blog: Lichfields Planning Matters, CIL-ing out? Deferred payments for struggling SMEs but no wider relief.
Draft Community Infrastructure Levy (Coronavirus) (Amendment) (England) Regulations 2020 MHCLG, Coronavirus (COVID-19): Community Infrastructure Levy guidance
Permanent changes to planning appeal procedures proposed
The Business and Planning Bill includes provisions that would mean various types of planning appeals under the Town and Country Planning Act 1990, listed building consent appeals and hazardous substances consent appeals could use a combination of elements from the written representations, hearing and inquiry procedures in order to speed decision making. The Inspector would decide the procedure or procedures that would be used.
The measures were drafted in response to the impacts of the coronavirus pandemic, but the Government has concluded this change will provide ongoing efficiencies to the work of the Planning Inspectorate and reflects Welsh legislation; it would therefore be a permanent change. PINS anticipates that the measures will come into force in late July and in the short term it will continue to plan and run remote events.
However, PINS says it is “actively looking at options to resume some face-to-face hearings and inquiries and they will continue to be part of our future once the current situation has eased. Experiences collected in holding virtual events will also be useful to inform what role virtual or a blend of face to face and virtual events may be able to play in the longer term in widening options and access”.
With regard to consultation on and publicity of appeals, the Government’s June Written Ministerial update on planning said:
“For planning appeals there are provisions in secondary legislation for consultation and publicity requirements, and the Government is considering whether these should be amended to enable more to be undertaken by digital processes, similar to the flexibilities already brought in for planning applications under the TCPA. The Government expects local planning authorities, appellants, the Planning Inspectorate and other parties to be proactive in their use of digital processes for consultation and publicity”.
Planning Inspectorate, Virtual Events remain for now; greater flexibility of events to be offered in futureUK Parliament, Planning update: Written statement - HCWS316
A 25 June written statement says that when stages of the Nationally Significant Infrastructure Projects (NSIPs) and Development Consent Orders (DCOs) processes require inspection, this can be satisfied by providing the information online with hard copies available on request.
To facilitate this, the Government says new secondary legislation will be in force soon that will replace temporarily the requirement for documents to be made available for inspection in a place, with a requirement for documents to be made available online.
UK Parliament, Planning update: Written statement - HCWS316
Planning reform repackaged as the road to recovery
On 30 June the Prime Minister announced several planning-related proposals in his ‘New Deal’ and the associated ‘Build, Build, Build’ press release.
Some measures, such as the knock down and rebuild PDRs, have been in the wings for some time, but are now rebadged as a formed part of the COVID-19 recovery – perhaps accurately if the lockdown pushed them over the finish line.
Most measures mentioned by the Prime Minister are covered elsewhere in this edition of the Lichfields Planning News, but also of note are:
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In July, the government will launch a Policy Paper proposing comprehensive reform of England’s planning system – this is not the White Paper expected (or Green Paper, as originally proposed). The Paper is expected to grapple with the question of whether and how to introduce zoning.
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By September, property owners will be able to build additional space above their properties via a fast track approval process, subject to neighbour consultation.
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Included in a £12bn affordable homes programme will be a 1,500 unit pilot of ‘First Homes’: houses that will be sold to first time buyers at a 30% discount which will remain in perpetuity.
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Ahead of the Spending Review, a cross-government strategy will look at how public sector land can be managed and released so it can be put to better use, for example for home building, improving the environment, contributing to net zero goals and injecting growth opportunities into communities across the country.
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The Home Building Fund to help smaller developers access finance for new housing developments will receive additional £450m boost, which is expected to support delivery of around 7,200 new homes.
HM Government, PM: A New Deal for BritainHM Government, PM Economy Speech: 30 June 2020
Permitted development rights for new homes – with more to come
From 1 August a new permitted development right (PDR) will allow up to two storeys to be added to residential buildings. As anticipated, this will be in certain circumstances and subject to a successful prior approval application.
The PDR has been inserted into the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO) by the Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020.
There is very likely to be a window of time where there will be no Article 4 Directions preventing the operation of this permitted development right, because most LPAs do not take effect until a year after they are made, to avoid compensation potential being payable.
Our blog discusses this permitted development right in detail (link below).
The Explanatory Memorandum to the Regulations notes that the Government also intends to introduce further permitted development rights for building upwards, including for new and bigger homes.
The Prime Minister has announced that by September “A wider range of commercial buildings will be allowed to change to residential use without the need for a planning application” and there will be “permitted development rights to demolish and rebuild vacant and redundant residential and commercial buildings if they are rebuilt as homes”.
The impact of new permitted development right for change of use of commercial buildings to housing will clearly depend on the commercial uses included in the right and any limitations on the floorspace that may be converted; the announcement does not say that these buildings must be vacant in order to benefit. Our guides to the Use Classes Order indicate where such changes of use are already possible.
To some extent same applies to the impact of the proposed new permitted development right to knock down commercial buildings and replace them with residential, but this is a significant and ground breaking PDR even if the uses that may be demolished are fairly limited.
Lichfields Planning Matters, Right to rise: extending purpose-built residential blocks upwardsHM Government, PM: A New Deal for BritainLichfields, Guide to the Use Classes Order
Prior approval applications for residential must demonstrate adequate natural light levels
Those seeking to benefit from Permitted Development rights (PDR) for certain changes of use to residential, will soon be required to consider “the provision of adequate natural light in all habitable rooms of the dwellinghouses”.
The Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020, will introduce additional criteria for decision makers to consider when determining applications for prior approval by amending the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO).
The regulations will come into force on 1 August 2020, though certain transitional arrangements are included, whereby an application made before 1 August 2020 may continue to rely on the prior approval requirements for that class of development in place prior to the new provisions coming into force.
Change of use to residential, permitted under classes M, N, O, PA, Q of Part 2 of the GPDO will be affected; these include change to residential from retail and hot food take-away uses, light-industrial, agricultural buildings, as well as office uses. The new requirements will also apply for the new PDR for upward extensions under Class A Part 20, in addition to the loss of light to neighbouring properties as a matter to be considered for prior approval applications under that class.
As the Explanatory Memorandum explains, prior approval applications will now need to be accompanied by detailed floor plans, setting out the “dimensions and proposed use of each room, the position and dimensions of windows, doors and walls, and the proposed elevations of the homes.”
Local planning authorities are expected to exercise their planning judgement when considering the detailed floor plans in their assessment of adequate light in habitable rooms. A definition of “Habitable room” is provided now provided under a new Para X.
““habitable rooms” means any rooms used or intended to be used for sleeping or living which are not solely used for cooking purposes, but does not include bath or toilet facilities, service rooms, corridors, laundry rooms, hallways or utility rooms;”
The amendments will in part attempt to address some of the concerns that existing PD rights have allowed some poor quality residential conversions in regards to the amenity of occupants. The Government had in part acknowledged this needed to be explored, with then Housing Minister James Brokenshire stating in last year’s Spring Statement, “I intend to review permitted development rights for conversion of buildings to residential use in respect of the quality standard of homes delivered.”
Decision makers will not be able to refuse an approval on the basis of room size or layout alone, and there is no definition of what might constitute providing “adequate natural light”, potentially leading to significant differences between planning judgements.
The Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020Lichfields, Neighbourly Matters services, including daylight and sunlight assessments
A leaseholder of a property with planning permission for redevelopment has successfully challenged the London Borough of Hackney’s decision on one of three grounds. The successful ground was: The failure of the Council to comply with national planning policy in relation to the provision of information in respect of viability assessments.
According to the judgement:
“The failure to provide the background material underpinning the viability assessment in the present case, in circumstances where such material as was in the public domain was opaque and incoherent, was a clear and material legal error in the decision-taking process”.
The planning permission was quashed.
Our blog ‘Towards the standardisation of viability assessments’ reviews the judgement and considers its implications.
R on the Application of Holborn Studios Limited v London Borough of Hackney
High Court judgement concludes Leeds Green Belt allocations were legally flawed
The Aireborough Neighbourhood Development Forum has successfully challenged Leeds City Council’s Site Allocations Plan (“SAP”) in the High Court. All allocations for residential development in the SAP on what were formally Green Belt locations were found to be legally flawed. Please see our blog for a summary of the challenge and discussion of some of the potential implications of the ruling.
Simon Clarke MP (Minister of State at MHCLG) has confirmed plans for the economy will be detailed in the Devolution White Paper due to be published this autumn.
Mr Clarke said that transformative plans for economic recovery and renewal, and for levelling up opportunity, prosperity, and well-being across the country will be laid out in the Devolution White Paper. It will also comprise of plans to restructure local institutions in order to achieve these results.
The plans are set to establish more mayors and unitary councils where populations are substantially in excess of 300,000-400,000 as a general rule.
This information was provided on 29 June in response to a written question made by Simon Hoare, MP for North Dorset, who queried the process for Local Authority areas looking to achieve unitary status.
UK Parliament, Unitary Councils: Written questions
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The Lichfields perspective |
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The impact of Covid-19 has been immediate and devastating for many aspects of commercial life. For town centres, high streets and destinations centred around eating and drink, entertainment and hospitality, the effects have been felt hardest. |
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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