News
England planning news, April 2021
09 Apr 2021
Contents |
|||
|
01
|
|||
|
02
|
|||
|
03
|
|||
|
04
|
|||
Headline news |
||
Big expansion of permitted development rights coming in April and August
In December 2020, the Government began a consultation on a variety of changes to permitted development rights (PDRs) and streamlining public service infrastructure application procedures.
At the core of the “Supporting housing delivery and public service infrastructure” consultation were proposals responding to the need for amendments to PDRs. This followed on from 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. At present, there is a temporary requirement to interpret some PDRs with reference to pre-September 2020 use classes, until July 2021.
The Government believes there are almost 50 provisions to review in this context (see Annex A of the consultation) and divided them into four categories: now obsolete PDRs; PDRs where no amendment is 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 the last category have largely arisen due to deleted Use Class D2 being split between new Use Classes E and F2.
The outcome of part of this consultation has now been published and associated amendments to the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO) will come into force on 21 April 2021, although prior approval applications are essential for Commercial, Business and Service (Class E to Residential (Class C3 change of use PDR and are not permitted until 1 August 2021.
We provide below a summary of the position relating to the PDRs proposed in the consultation and changes to PDRs for ports. We also cover the changes relating to the demolition of statues and other commemorative structures. These proposals were not in the “Supporting housing delivery and public service infrastructure” consultation.
New permitted development rights for Commercial, Business and Service (Class E) to Residential (Class C3)
The change of use permitted development right most fleshed out in the consultation was a proposed Class E to Class C3 permitted development right. Jennie Baker’s blog provides an overview of the new permitted development right and includes a summary table, which compares new Class MA with the current office to residential (Class O) and retail to residential (Class M) permitted development rights. Prior approval for the new PDR may be sought from 1 August 2021.
Leaders of the Royal Town Planning Institute (RTPI), Royal Institute of British Architects (RIBA), Chartered Institute of Building (CIOB) and Royal Institution of Chartered Surveyors (RICS) have written to the Prime Minister asking that he reconsider the measures. They argue that the Class E to Class C3 PDR “presents a risk for our nation’s town centres and small businesses” and “risks creating poor-quality housing”.
The consultation outcome set out concerns raised by respondents that reflect the concerns raised by these leaders:
“Many noted the risk to high streets from the loss of retail and other commercial uses. Some local planning authorities noted that their local plans supported new homes in town centres, providing a balance of uses, and with affordable housing and contributions for important infrastructure. There was a suggestion for a size limit, and for it to apply to vacant buildings so that it did not impact on businesses that were trying to recover from the COVID-19 pandemic. Views were expressed about the impact on smaller settlements and the potential for losing vital local services, leading to unsustainable development. Views were also raised about the absence of an affordable housing requirement. There was some support for the measure, with benefits to the economy cited as well as support in meeting the housing shortage. A response suggested that article 4 directions should not be allowed in relation to this measure”.
In addition, the Housing, Communities and Local Government Committee has launched a short inquiry “to examine the Government’s recent and proposed changes to permitted development rights in respect of large-scale development, commercial-to-residential conversions and changes of use between different types of commercial and retail premises. In particular, the inquiry will explore their role in supporting economic growth and their impact on local authorities, including their ability to plan development holistically, developer contributions, the provision of services and social housing and the supply and quality of new homes”. The call for evidence closes on 30 April 2021.
The legislation requiring that all homes delivered via permitted development rights meet space standards came into force on 6 April 2021.
Please see the Lichfields November 2020 England Planning News for more details.
Lichfields Planning Matters blog, New Class MA - Mercantile to Abode: a slightly reined in Class E commercial to residential PDR from August 2021RTPI, RIBA, CIOB, RICS, letter to the Prime Minister, 1 April 2021Housing, Communities and Local Government Committee inquiry into permitted development rights
Changes to permitted development rights for ports, hospitals, education and prisons
The proposals to streamline public service infrastructure application procedures are a forerunner of Project Speed and the recent raft of planning reform. These proposals are two pronged: new permitted development rights and a fast track ‘public service application process’.
There will also be changes to permitted development rights for ports, which are intended to align them more closely with the permitted development rights for airports. The Government committed to this in its October 2020 response to the Freeports consultation[1], which ran from February to July 2020.
Tom Davies' blog looks at the amendments to permitted development related to ports and public service infrastructure (hospitals, education and prisons) that will come into force on 21 April 2021.
In related news, the successful Freeports were announced in the Budget on 6 March and maps of these Freeports were published on 8 April 2021.
Lichfields Planning Matters blog, Project speed gathers pace – more permitted development rights for education, hospitals, prisons and portsHM Treasury and MHCLG, Maps of the Successful English Freeport Bids
Consultation on other Class E consequential PDR amendments to follow
With regard to the amendments to other permitted development rights that are necessary following the introduction of Class E, views were sought on the broad approach to be applied.
The Government’s response said:
“We welcome the range of points made in response to these questions and will consider these as we take forward the work to scope proposed changes to individual rights. Reflecting comments received, we will undertake a short technical consultation on the detailed consequential changes to individual rights. […] This will enable government to bring forward legislation to make consequential changes prior to 1 August 2021”.
Removal of PDRs for certain statues, memorials and monuments
The Order coming into force on 21 April 2021 also includes provisions that mean statues, memorials or monuments that have been in place for 10 years or more will not benefit from Permitted development rights for demolition, unless the commemorative structure is a listed building or a scheduled monument (for which other consents would be required to demolish); within a cemetery or the curtilage of a place of public worship or dwelling, on consecrated land, or within the grounds of a museum or art gallery. This follows the Written Ministerial Statement of 18 January 2021[2], which announced such provisions and said:
“In considering any [planning] applications to remove a historic statue, plaque, memorial or monument (whether a listed building or not), local planning authorities should have regard to the government’s clear policy on heritage (summarised as ‘retain and explain’) as set out by the Minister for Digital Infrastructure to Parliament on 25 September 2020. This statement now forms part of national planning policy and should be applied accordingly”.
Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021Lichfields Planning News, December 2020 regarding the “Supporting housing delivery and public service infrastructure” consultation
|
|
Quote of the month |
|
|
A key consideration was the potential loss of viable retail space and the impact that the uncontrolled loss of such uses could have on the high street
The Secretary of State for Housing, Communities and Local Government, Rt Hon Robert Jenrick MP, in MHCLG’s Oral Answers to questions 22 February 2021 |
||
Government updates the position regarding housing policy proposals
The Government has published further elements of its response to the "Changes to the current planning system" consultation, which ran in August and September 2020 (the Lichfields summary of that consultation is here).
The Government had already published the outcome in respect of proposed changes to the to the standard method for calculating housing need in December 2020, as explained in the Lichfields blog “Mangling the mutant: change to the standard method for local housing need”.
The Government provided outcomes in respect of the proposed national policy on First Homes and proposals for increasing the affordable housing threshold for small sites set out in national policy, on 1 April 2021. The response explains that proposals to increase the number of dwellings for which permission in principle may be sought on application are still under consideration. More details are set out below.
No change to the small sites affordable housing threshold
The Government has decided that at present it is not necessary to change the small sites policy threshold by increasing the number of market dwellings in a scheme that trigger a national policy requirement for affordable homes. Its consultation response notes the other support measures available to SMEs and “the broader way in which the sector has responded to the challenges of the pandemic”.
Whilst Government references to this policy proposal often indicated that it was intended to support SMEs, it was not confirmed that larger housebuilders and developers would not benefit from the increased threshold too.
The 1 April Government response to the First Homes proposals in "Changes to the current planning system" says: “We will continue to monitor the market closely and will speak to SME representatives about the barriers they face and the kind of support we can offer them, but there are no plans to raise the small sites threshold at this stage. As such, paragraph 63 of the National Planning Policy Framework, will continue to apply”.
First Homes national policy in the wings – centre stage from 10 May 2021?
The Government has published the outcome of its consultation on First Homes. The questions on First Homes within the “Changes to the current planning system” consultation were technical in nature, seeking views on how best to implement the proposals rather than on the principle (the Lichfields overview of the technical consultation on First Homes is here). The consultation response says:
“The government intends to make changes to national planning policy through the laying of a Written Ministerial Statement in Parliament, which will happen in due course, and with an implementation date to be set out on publication.
[…]
the Written Ministerial Statement will set out the policy framework for First Homes, including:
- policy detail on the process for setting developer contributions for First Homes
- the types of developments that will be exempt from the requirement to provide First Homes
- the transitional arrangements that will apply to local and neighbourhood plans depending on their level of advancement through the plan making process, as well as for planning applications
- the policy framework for First Homes exception sites”
However, the consultation response does confirm or reconfirm some elements of the forthcoming First Homes policy:
- National policy will state that 25% of all homes delivered through developer contributions as part of planning obligations agreed via section 106 agreement should be sold as First Homes.
- Having “secured the 25% requirement”, local authorities should prioritise social rent, in accordance with local policy and “where other affordable housing units can be secured, these tenure-types should be secured in the relative proportions set out in the development plan”.
- The minimum discount for First Homes should be 30% from market value, set by an independent registered valuer. Where increasing the minimum discount to 40% or 50% were justified and applied by the local authority or neighbourhood planning group, there would still be requirement for a minimum of 25% of the affordable housing to be First Homes.
- Developers who are able to deliver First Homes with even higher discounts should be free to do so, but this cannot be required by the local authority or neighbourhood planning group.
- Developments which provide solely for Build to Rent homes, specialist accommodation e.g. for the elderly or students, self-build or developments exclusively for affordable housing, entry-level exception sites or a rural exception site are already exempt from national policy to provide affordable homes and will be exempt from the requirement to deliver First Homes.
The transitional arrangements for planning applications will include a policy stating that:
“The new requirement for 25% First Homes will not apply to sites with full or outline planning permissions already in place or determined (or where a right to appeal against non-compliance has arisen) before 10 November 2021 (or 10 February 2022 if there has been significant pre-application engagement), although local authorities should allow developers to introduce First Homes to the tenure mix if they wish to do so […] the transitional arrangements for planning applications set out above will also apply to planning applications and permissions for entry-level exception sites”.
Given that the consultation also says that the new requirement for 25% First Homes will not apply planning permissions determined within 6 months of implementation of the policy (or 9 months if there has been significant pre-application engagement), this indicates that the policy will be introduced on 10 May 2021.
In October 2020, MHCLG Permanent Secretary Jeremy Pocklington said to the Public Accounts Committee’s inquiry into Starter Homes that implementation of the First Homes policy will not be quick and alluded to the transitional provisions:
“We will need to adjust the planning policy in order to fully implement the First Homes proposal. After that stage, authorities, as they change their policies and update their local plans, will be required to provide First Homes. We are not setting a timetable on that. We are going to learn from the 1,500 homes. This is a policy that will grow over several years. It is not a quick policy to implement”.
First Homes exception sites policy
With regard to First Homes and the exception sites policy, the Government has concluded that the entry-level exception policy has not delivered affordable housing to the extent originally envisaged. Accordingly, the exception sites policy is to be replaced with a ‘First Homes exception sites’ policy, in order to encourage First Homes-led developments on land that is not currently allocated for housing. However, in designated rural areas such as National Parks and Areas of Outstanding Natural Beauty, rural exception sites will remain as the sole exception site which can come forward. Elsewhere, First Homes exception sites and rural exception sites can both come forward.
It will be possible for developers and local authorities to agree to deliver a small proportion of affordable homes of other tenures on exception sites, if this improves either the viability or local acceptability. The Government will develop appropriate and balanced guidance on what a “small proportion” is, rather than setting a specific limit on the amount of market housing allowed on exception sites.
First Homes and other discount market homes in England have been able to benefit from social housing relief from the Community Infrastructure Levy since 16 November 2020 (see Lichfields Planning News for December 2020).
Permission in principle on application for large sites pushed back
The proposal to increase the number of dwellings for which Permission in Principle may be sought on application, also proposed in the "Changes to the current planning system" consultation, is still under consideration by the Government (the Lichfields overview of this proposal is here). The Government says it is deciding whether a Permission in Principle on application for ten or more homes should form part of wider planning reform rather than being introduced via the current system. This might be considered alongside whether or not to grant Permission in Principle via the development plan for certain site allocations, as proposed in the White Paper and as provided for in the Housing and Planning Act 2016 (albeit not in force).
MHCLG, Government response to the First Homes proposals in "Changes to the current planning system"
New or extended flexibilities for construction hours, hospitality and retail
In advance of Step 2 of the Government’s roadmap commencing, the Communities Secretary, Rt Hon Robert Jenrick MP, has announced new and extended policies and legislation that are intended to benefit the retail and hospitality sectors and also the construction sector (and therefore by extension the industries it supports).
The policies announced via a Written Ministerial Statement of 25 March 2021 relate to construction working hours, retail opening hours and delivery of food and essential goods, and are as follows:
- The strong encouragement of flexibility towards construction working hours, as set out in a 13 May 2020 Written Ministerial Statement, is extended until 30 September 2021 (with the date to be kept under review). This is notwithstanding that Section 74B of the Town and Country Planning Act 1990 “Conditions relating to construction working hours” fell away on 1 April 2021, so a s73 planning application or non-material amendment application would be required at present – the 25 March WMS does not suggest that s74B or a similar provision is to be reinstated
- Extended retail opening hours, Monday to Saturday, from 7am to 10pm from roadmap Step 2 (no earlier than 12 April) until roadmap Step 4 (no earlier than 21 June) – these extended retail opening hours are to be highlighted to retailers by the LPA
- Extending the policy regarding delivery of food and essential goods in a 13 March 2020 Written Ministerial Statement, which says:
“as a matter of urgency local planning authorities should take a positive approach to their engagement with food retailers and distributors, as well as the freight industry, to ensure planning controls are not a barrier to food delivery over the period of disruption caused by the coronavirus”
Related to the above measures, the policy encourages “a positive and flexible approach to planning enforcement action to support economic recovery and support social distancing while it remains in place”.
The Government has also announced measures that will require changes to legislation including a broadening of the provisions relating to temporary structures and seating in terms of how long they are permitted for and the provision being extended to listed buildings and perhaps their curtilage. In a 20 March 2021 press release, the Communities Secretary said:
“businesses such as pubs and restaurants, including where these premises are in listed buildings, will be allowed to use their land more flexibly to set up marquees and provide more outdoor space for diners as restrictions ease […]. They can be kept up for the whole summer rather than the 28 days currently permitted”.
The announcement does not indicate when such permitted development rights might come into force, albeit “the whole summer” suggests 21 June at the latest.
In addition, in a letter to local authority leaders, the Communities Secretary said that the pavement licence provisions will be extended for a further 12 months:
“We have made clear in the pavement licence guidance that we expect local authorities to grant licences for 12 months or more unless there are good reasons not to, such as plans for future changes in use of road space. Therefore, unless there are very good reasons, we would expect licences granted under these provisions to continue to apply into this summer so that businesses do not have to reapply or be charged a further application fee when they are able to re-open to serve customers outdoors. These temporary provisions are currently due to expire on 30 September 2021, but to give further certainty to businesses I will be introducing secondary legislation to extend these provisions for a further 12 months, subject to Parliamentary approval”.
MHCLG, letter from the Communities Secretary to local authority leaders “Supporting the reopening of outdoor hospitality”, 5 March 2021Coronavirus (COVID-19): construction update Q&AUK Parliament, Construction update, Written Ministerial Statement made on 25 March 2021UK Parliament, Construction update, Written Ministerial Statement made on 13 May 2020UK Parliament, Delivery restrictions, Written Ministerial Statement made on 13 March 2020
The Government has said that the provisions that permit remote committee meetings until 6 May 2021 will not be extended. A letter from the Minister for Regional Growth and Local Government, Luke Hall MP, to the leaders of all principal councils in England, says that this decision has been made because primary legislation would be necessary at a time when the legislative programme is under severe pressure and given the vaccination programme’s progress.
However, in February, the Association of Democratic Services Officers, Lawyers in Local Government and Hertfordshire County Council instructed counsel to issue proceedings in the High Court to seek a declaratory judgment to enable local authority remote meetings to take place within existing legislation after 6 May 2021 (see Lichfields March Planning News).
According to an article by Local Government Lawyer, the case will be heard in the High Court on 21 April 2021 and the Government has recognised “that there was “a case to be heard” that the Local Government Act 1972 should be interpreted as allowing for virtual meetings “as the legislation was passed at a time when virtual meetings could not have been envisaged””.
Alongside the Local Government Minister’s letter, the Government published updated guidance for the safe use of council buildings, including potential alternatives to face to face meetings, which will still be necessary if the High Court claim fails. These alternatives are essentially the same decision-making options used by many local authorities between the start of lockdown and before the emergency legislation that permitted remote meetings came into force:
- “Use of your existing powers to delegate decision making to key individuals such as the Head of Paid Service to minimise the number of meetings you need to hold.
- Relying on single-member decision making where your constitution allows”.
The letter also suggests that local authorities concerned about holding physical meetings might wish to resume them after 17 May, when the Government’s roadmap anticipates that a greater range of indoor activity will be permitted. Remote access for the public is encouraged until at least 21 June (Stage 4 of the roadmap).
In the same letter to leaders the Minister announced a call for evidence on the use of the current arrangements which have allowed local authorities to hold meetings remotely or in a hybrid format during the coronavirus pandemic, to inform future decisions.
Separately, the Housing Minister, Rt Hon Christopher Pincher MP, has answered a written question on the effectiveness of the implementation of the Planning Inspectorate's guidance on site visits, hearings, inquiries and events, relating to how interested parties and members of the public can participate in the planning process at present, saying:
“Virtual events have proven to be effective and offer greater opportunity for involvement in the planning system. The Inspectorate has requested feedback from all participants in virtual events and 90% of those who responded have rated their experience good or excellent, with 97% saying that they would be happy to take part in a virtual event again”.
MHCLG, COVID-19: Letter to council leaders on the future of remote meetingsMHCLG, COVID-19: Guidance for the safe use of council buildingsMHCLG, Local authority remote meetings: call for evidenceUK Parliament, Written Question, Planning: CoronavirusLocal Government Lawyer, Government to support legal action over ability of councils to hold remote meetings
|
|
The Lichfields perspective |
|
|
The additional limitations on Class E to Class C3 permitted development rights, the anticipated approach to social rent tenure in the forthcoming First Homes policy and the decision not to increase the affordable housing threshold for small sites demonstrate that the Government is in ‘listening mode’ and willing to amend proposals to reflect consultation responses. However, professional bodies are arguing that the Class E to Class C3 permitted development rights remain unacceptable to them and should be amended prior to becoming available in August.
Jennie Baker, 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