England planning news, May 2021


England planning news, May 2021

13 May 2021



Headline news


More changes to permitted development rights revealed

The Government has published a consultation on further proposed changes to The Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO), in respect of permitted development rights that are affected by the introduction of Class E.  This follows the PDR for change of use from Class E to C3 coming into force last month, ahead of it becoming available in August 2021.
The consultation proposes substantive changes to 22 PDRs and minor and technical changes to 10 PDRs within the GPDO that are designed to tie loose ends and anomalies created by new class E.
The proposed substantive amendments apply to the following Parts of the GPDO: Part 3 Changes of use, Part 4 Temporary buildings and uses and Part 7 Non-domestic extensions and alterations.
We focus below on the proposals we consider to be of particular interest.
PDRS to be withdrawn
The PDR for change of use from general industrial (B2), or storage and distribution (B8) to light industrial/business (B1) is to be withdrawn. This is on the basis that change of use from Class B2 or B8 to Class E “could in future see the development of inappropriate uses such as nurseries or day centres, in industrial areas”. It is not clear whether this PDR (Class I) is to be wholly withdrawn, or whether change of use from B2 to B8 will still be permitted development (subject to a 500sqm floorspace limitation).
Also to be withdrawn are PDRs for changes of use to uses that were within former use class D2; this use class was the most fragmented by changes to the UCO in 2020.
Part 3 Class J, which allows change of use from shops (formerly A1), financial and professional services (formerly A2), betting office or pay day loan shop to assembly and leisure (formerly D2) and Class K, which allows change of use from casinos to (former) Class D2, are both proposed to be withdrawn.
Changes to PDRs for permanent change of use
The permitted development right that permits change of use from agriculture to a range of uses (Class R) will no longer permit change of use to former use class D2 either.
Part 3 Class R will still provide for the change of use of an agricultural building to a ‘flexible use’ falling within shops, financial and professional services, restaurants and cafes, business, because it is to be wider in scope and apply to any Class E use. It will also continue to permit change of use from agriculture to storage or distribution (B8) or hotels (C1) and will continue to have the many of the same limitations, including a 500sqm floorspace limit and listed building will not benefit from the right.
PDR Part 3 Classes A-F and PDR Class JA currently provide for various changes of use between typical town centre and retail uses. These Classes are to be replaced with a new right to change from casino, betting office, pay day loan shops, take-aways to use Class E with no limitations or conditions. The new PDR would apply to listed buildings and within National Parks, for example.
Part 3 Class M, change of use from retail to residential, will be partially retained to allow the sui generis uses to continue to benefit from Class M – i.e. hot food takeaways, betting office, pay day loan shop or launderette.
Of these, only prior approval applications for launderettes to residential will be required to demonstrate the adequate provision of services. This means it will be the only town centre use to require such an assessment when changing to residential[1].
Changes to PDRs for temporary change of use
Regarding temporary changes of use, Part 4 Class D currently provides for shops, financial, cafes, takeaways to change to several other uses on a temporary, flexible basis. This temporary permitted development right is subject to notifying the local planning authority and does not change the use of the building. It has been made largely obsolete by use Class E, but it will be retained in a modified form in order to allow start-ups to trial a use without changing the lawful use of the building.
The right will be amended to provide for the temporary change of use from Class E, hot food takeaway, betting office and pay day loan shop to another Class E use, or to specified F1 Learning and non-residential institutions uses: art gallery, museum, public library, public hall or exhibition hall.
Accordingly, should a developer wish to retain the sub-category of use Class E that their building falls within as the lawful use, then they will need to notify the local planning authority that they are seeking to benefit from this temporary permitted development right.
Changes to PDRs for non-domestic extensions
Some permitted development rights for extensions are also affected by the introduction of use Class E.
The permitted development rights for the extension of shops and financial professional services and of offices will be replaced by a PDR to extend Class E buildings, meaning many more uses will benefit from the right. However, the right will be based on the limitations for shops, meaning that offices will no longer benefit from PDRs to extend above ground level.
Permitted development rights that permit building in offices or former A1-A5 uses to provide or replace hardstanding within will be expanded to benefit all buildings in Class E use.
The three week consultation closes on 3 June 2021.

[1] The permitted development right for launderettes has existed since 2016. At that time, Lichfields analysis found converting launderettes would provide 0.6% of London’s housing annual needs. 

MHCLG, Technical consultation on consequential changes to permitted development rights



Quote of the month

We need your support to ensure the measures are known, made use of and not impeded unnecessarily – jobs and enterprises depend on it. I would urge you to show pragmatism and proportionality at all times, doing everything you can to help businesses prosper again.
Rt Hon Robert Jenrick MP, Communities Secretary in a letter to Chief Executives and Leaders of local authorities in England regarding outdoor hospitality and associated permitted development rights, 15 April 2021


Planning gateway one: fire statement requirements for high-residential buildings published in draft

The Government has published guidance that outlines the arrangements for planning gateway one, which it intends to introduce on 1 August 2021.
The Town and Country Planning (Development Management Procedure) (England) Order 2015 (DMPO) will be amended to require that a fire statement be submitted with full planning applications for new high-rise residential buildings, for certain existing high-rise residential buildings referred to as “relevant buildings” and for those relating to land within the curtilage of relevant buildings (unless only a change of use is sought on that land).
The Government has published the proposed DMPO amendments in draft.
A relevant building is to be defined as a residential building that is more than 18 metres high or more than 7 storeys above ground level (whichever is reached first) and contains more than one dwelling or educational accommodation such as student accommodation or boarding accommodation for schools.
Storeys that are solely for plant are not to be taken into account when determining whether a building is or would be 18 metres high. However, the guidance notes:
“It may be necessary to amend these definitions in future to align with arrangements to be made under the Building Safety Bill to deliver gateways two and three, with a view to achieving consistency across all three gateways”.
The requirements will not apply to outline planning applications or section 73 planning applications. The guidance says that MHCLG intends to introduce fire safety as a prior approval matter for residential accommodation that is being delivered under the permitted development regime and falls within the scope of planning gateway one.
Fire statements will be about the safety design principles, concepts and standards that have been applied to the development. A fire statement will be submitted on a standard form, a draft of which has been published together with draft guidance. It will provide information about all buildings within the proposed development, not solely the proposed high-rise residential building.
Where a fire statement is required, the Health and Safety Executive (HSE) will become a statutory consultee; the Building Safety Regulator will become the statutory consultee once this role is established.

MHCLG, Building safety: planning gateway one

Cladding remediation: Residential Property Developer Tax consultation

In February 2021, the Government announced that it is to introduce a levy that will be applied when developers seek planning permission to develop defined types of high rise buildings in England (see Lichfields March England Planning News).
The levy is to help finance the funding that will support the cost of replacing unsafe cladding. It was announced alongside the Government’s funding plans for cladding remediation in England.
In the same February announcement, the Government said it would introduce a new tax “for the UK residential property development sector” in 2022, which would also help to pay for cladding remediation costs.
The Government has now published a consultation on the design and administration of the new Residential Property Developer Tax (RPDT).
The new tax will apply to the annual profit, over a £25 million allowance, that the biggest corporate undertakings make on residential property development activities. It is intended that profits made in relation to the development of affordable housing and build to rent models will fall within the scope of the RPDT. The Government is still considering the extent to which student accommodation and retirement living will be included within the RPDT’s definition of residential property.
It is proposed that hotels, residential homes, hospitals, certain supported housing, armed forces accommodation, boarding school accommodation, accommodation for religious orders and prisons will not fall within the definition of ‘residential property’.
The RPDT will be time limited and is intended to come into force in April 2022. The Government hopes that the RPDT will help generate £2 billion over a decade, which will fund cladding remediation. The consultation is being used to help shape the RPDT before its insertion in the 2021-22 Finance Bill.
According to the consultation, views are sought on matters including:

  • the definition of residential property and development activity, and two potential models for the tax;

  • potential impacts of the tax, including on housing supply and provision of affordable housing;

  • approaches to setting the rate and allowance; and

  • the interaction with the new Gateway 2 levy.
Consultation on the Gateway 2 Levy, in England, will follow “in due course”. According to the consultation:
“While the policies are targeted differently, the government recognises that it is possible that in some cases developers would be in scope of the levy for specific developments, and the tax on their profits. While it will be difficult to comment before the publication of more detail on the design of the levy, the government would like to seek initial views on the prevalence and potential impact of this overlap”.
The Consultation will conclude on 22 July 2021.

HM Treasury, Residential Property Developer Tax: consultation

Case serves as a reminder for approved plans to be accurate and consistent

The High Court has determined that a planning permission could not be lawfully implemented, due to the inaccuracies of an approved elevational drawing the proposed development was required to comply with by way of a condition attached to the planning permission.
In July 2018, planning permission was granted for the demolition an existing 2 two-storey house, and the erection of a 3-storey block of flats. Under condition 1, the planning permission required that “the development hereby permitted shall be carried out in accordance with the following approved plans”.
Drawing P.04, an elevation showing the proposed development within the street scene that was listed under condition 1 of the planning permission, purported to show that the ridge height of the proposed development was lower than that of the neighbouring house. In actuality, the surrounding buildings shown on the drawing had not been drawn to the same scale to that of the proposed development; the ridge height of the proposed building should have in fact been higher than its neighbours if all buildings had been drawn at a consistent scale.
Following the discovery of the error, the developer made an application for a lawful development certificate (LDC), to confirm whether the permission could still be implemented in accordance with its plans, notwithstanding the issue that the neighbouring buildings shown on P.04 had not been represented at the correct scale.
The Council, however, refused the application, contending that the surrounding context was in fact materially different to that shown on the drawing, concluding that a different decision might have been reached if the approved elevations had been accurate.
An Inspector went on to refuse the subsequent appeal against refusal of the LDC. Noting the inconsistencies between the various plans provided, it was considered that the condition did not require the development to be in accordance with some of the plans, or just parts of the plans, “but with the approved plans, and I think it reasonable to imply the word "all" there, again on the basis that is what an ordinary reading of the condition implies”.
The Inspector agreed with the council that the street scene drawing was an important document in helping to determine the application, particularly given that the scheme was only narrowly approved. The Inspector concluded that decision makers should ordinarily be able to rely on accurately scaled drawings, especially where a drawing is provided to determine the acceptability of the proposal.
The Inspector’s decision was challenged and in the High Court, the judge agreed with the Inspector conclusions, determining that it would not have been possible to replicate the relationship between the proposed development and the surrounding buildings on site, as was depicted on drawing P.04. The defendants’ submission that the depiction of the neighbouring buildings in drawing P.04 was "purely or simply illustrative” was dismissed.
The judge confirmed the correct approach for the interpretation of a condition was set out in Trump International Golf Club Ltd v Scottish Ministers, in which Lord Hodge confirmed it should be an objective exercise, in which the natural and ordinary meaning of the relevant words are considered, along with the overall purpose of the permission, “any other conditions which cast light on the purpose of the relevant words, and common sense”.
In refusing the challenge, the judge concluded:
“In short, the development is not capable of being implemented in accordance with the approved drawings because it is not capable of being implemented in a manner which replicates the street elevations both longitudinally and axially which are purported to be shown to scale on drawing P.04. To reach that conclusion does not involve any suggestion that the planning application granted might be capable of controlling the scale or appearance of adjacent dwellings beyond the application on site; it is simply a reflection of the inaccuracy in the plans leading to an inability to construct a development which accords with that which is depicted upon them.

Choiceplace Properties Limited v SoS & Barnet BC EWHC 1070 (Admin) Case No: CO/1756/2020

The search for large venues to allow socially-distanced planning committees is now on!

In March 2021, the Government said that the provisions that permit remote committee meetings until 6 May 2021 would not be extended. Prior to this, the Association of Democratic Services Officers, Lawyers in Local Government and Hertfordshire County Council had 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. The Government acknowledged that there was a case to be heard (see Lichfields April Planning News).
On 28 April the High Court dismissed the claim. The judgment says:
“We conclude that the Secretary of State was correct in November 2016 and July 2019 to say that primary legislation would be required to allow local authority "meetings" under the 1972 Act to take place remotely. In our view, once the Flexibility Regulations cease to apply, such meetings must take place at a single, specified geographical location; attending a meeting at such a location means physically going to it; and being "present" at such a meeting involves physical presence at that location”.
The was a post-script:
“[…] we have not determined the question whether a meeting which is required by the 1972 Act to take place in person is "open to the public" or "held in public" if the only means by which the public are permitted to access it are remote. […] we have decided to permit the parties to address us separately on it […]”.
On 4 May judgment was handed down which found:
“broadcasting or live-streaming does not, on its own, satisfy the requirement for the meeting to be "open to the public" or "held in public". We say nothing about the numbers of the members of the public who should admitted in person, which will no doubt be subject to current public health or Government guidance. But subject to that practical consideration, or any other legislative intervention, where the requirement for the meeting to be "open to the public" or "held in public" applies, members of the public must be admitted in person as well”.
Accordingly, Council meetings that must be open to the public or held in public under the provisions of the Local Government Act 1972, can no longer take place remotely. The Government has directed local authorities to updated guidance for the safe use of council buildings, including potential alternatives to face to face meetings. These 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 (see Lichfields April Planning News).
The Government has an open call for evidence seeking views in respect of local authority remote meetings and use of the current arrangements, which have provided express provision for local authorities to hold meetings remotely or in a hybrid format during the coronavirus pandemic. The consultation seeks to understand the experience of local authorities regarding remote meetings and closes on 17 June 2021. This is further indication that the direction of travel is towards legislating for remote council meetings on a permanent basis.

Hertfordshire County Council & Ors v Secretary of State for Housing, Communities And Local Government [2021] EWHC 1093 (28 April judgment)Hertfordshire County Council & Ors v Secretary of State for Housing, Communities And Local Government [2021] EWHC 1145 (4 May judgment)

Future Planning Bill confirmed in Queen’s Speech and debated in Parliament

On 11 May, the Government’s legislative programme for the year ahead was set out during the Queen’s Speech. Included in the 30 Bills was confirmation of the long-anticipated Planning Bill, which is intended to introduce “laws to modernise the planning system, so that more homes can be built”.
While there is little further detail on the Bill’s provisions or any indication of when the Bill is likely to have its first reading in Parliament, a background briefing note was issued alongside the Queen’s Speech, setting out the objectives for the reforms and some of the key areas of change.
The Bill will be UK wide, although the majority of provisions are expected to apply only to England. The main objectives of the Bill are to introduce a number of the proposals put forward in the Planning White Paper last July.
The briefing note confirms that the Bill will introduce new style local plans, with the intention that these will provide greater certainty over the type, scale and design of development which is expected across the different categories of land. Last year’s White Paper proposed that new style local plans would categorise all land in England as either being for growth, renewal or protection, with each of the three categories providing different routes for securing the necessary consent for development. An alternative idea proposed would be for a two-tier approach which was also mooted in the White Paper, with land categorised as being for growth or for protection.
The briefing note states the Bill will include provisions that will “significantly decrease the time it takes for developments to go through the planning system.” This would likely be dependent on the categorisation of land within the new style local plans, which the White Paper had proposed the potential of granting outline permission or a permission in principle where a site has been allocated as either “growth” or “renewal”. Sites marked for protection would require something similar to a current application for full planning permission.
The briefing note also confirms the Government intends to introduce a new system of developer contributions. This would include mechanisms for the funding of affordable housing and infrastructure from development, through the introduction of a “more predictable and more transparent levy”. It is not clear from the note whether this would include mechanisms for delivering non-financial contributions, such as the direct provision of affordable housing or the provision of infrastructure to support and mitigate the impacts of new development.
In addition, the Bill will also include provisions to “simplify and enhance” the framework for environmental assessments for developments, now that legislation derived from European law can be replaced.
The Bill is also expected to reform the framework for locally led development corporations, this it is argued will help “ensure local areas have access to appropriate delivery vehicles to support growth and regeneration.”
The Planning Bill was raised by several Members during a debate in Parliament that followed the Queen’s Speech. Concerns were led by Conservatives with Liberal Democrat leader, Sir Ed Davey, also raising concerns. Former PM, Theresa May, commented “if the laws are based on the proposals in the White Paper, I fear this is less about modernisation than about giving developers greater freedom. Underpinning the proposals seems to be the concept that the reason more homes are not being built is the planning system”.
Sir Ed Davey, relayed some of May’s concerns, arguing that the “new planning laws will ride roughshod over the views of local people and create a developers’ free-for-all. As millions of pounds of campaign donations from property developers pour into Conservative party coffers, local communities will be silenced. That is not democratic, and it is not right. There is a much better way to get the homes we need”.
Other Bills were also confirmed during the Queen’s Speech which are likely to impact on future planning and development, including the Building Safety Bill, which is intended to establish new regulations for ensuring the safety of high-rise buildings, and the inspection of construction sites. It will also introduce the Gateway 2 Levy. Related to this, the Government has published further details regarding planning gateway one, which will require fire statements to be submitted with certain applications (see story below).

Prime Minister’s Office, 10 Downing Street, Queens Speech (11 May 2021)Prime Minister's Office, 10 Downing Street, Queen's Speech 2021: background briefing notesHansard, House of Commons Debate on the Address (11 May 2021)

Temporary moveable structures permitted at pubs, restaurants and historical visitor attractions until the end of the year

Further temporary permitted development rights for temporary structures associated with pubs, restaurants and listed buildings that are historic visitor attractions, are now in force.
A new permitted development right (Part 4 Class BB), which is available until the end of 1 January 2022, permits moveable structures on land within the curtilage of cafes, restaurants and drinking establishments such as pubs including where these are listed buildings, and historic visitor attractions. Historic visitor attractions are defined as listed buildings accessible by members of the public (whether or not for an entry fee) for the purposes of promoting their enjoyment and advancing their knowledge.
The permitted development right specifies each use or use class that benefits from it  - i.e. use Class E(b) (sale of food and drink principally to visiting members of the public where consumption of that food and drink is mostly undertaken on the premises) or the sui generis uses of public house, wine bar, drinking establishment or a drinking establishment with expanded food provision.
Buildings that do not fall within use class E(b) or the sui generis used described above (hotels or other venues with an ancillary restaurant, for example) cannot benefit from the new permitted development right.
Class BB does not apply within the curtilage of a scheduled monument or if the use of the moveable structure is for the display of an advertisement.
And while a key component of the new Class BB permitted development right is that it applies to land within the curtilage of a listed building, the Explanatory Memorandum emphasises:
“To be clear, this measure does not remove the obligation to apply for listed building consent under the Planning (Listed Building and Conservation Area) Act 1990 where the provision of a moveable structure would require such an application. Therefore the provision of any moveable structure must not cause the alteration, demolition or extension of a listed building in any manner which would affect its character as a building of special architectural or historic interest”.
Other permitted development rights that permit temporary use of land and moveable structures remain in force. The permanent Part 4, Class B permitted development right permits temporary use of land and an associated moveable structure on land, provided that the land is not within the curtilage of a building, for 28 days (or 14 days for a market or for motor racing).
The temporary Part 4, Class BA permitted development right introduced in 2020, permits temporary use of land and associated moveable structures on land, provided that the land is not within the curtilage of a listed building, also for 14 or 28 days (in addition to the 14 or 28 days permitted by Part 4 Class B where the site can benefit from that PDR). This permitted development right falls away on 31 December 2021.
Until then, temporary uses and structures may be permitted by the combination of the PDR classes for up to 56 days depending on the context of the site. Classes B and BA of Part 4 are subject to limitations and conditions, but are not limited to the pubs, restaurants and listed buildings that are historic visitor attractions, in the way the new Class BB is, and therefore have much broader application.

The Town and Country Planning (General Permitted Development) (England) (Amendment) (Coronavirus) Order 2021MHCLG, Rt Hon Robert Jenrick MP, Communities Secretary in a letter to Chief Executives and Leaders of local authorities in England regarding outdoor hospitality and associated permitted development rights



The Lichfields perspective

The search for large venues to allow socially-distanced planning committees is now on!

In the short term there are certainly challenges to overcome in organising committee meetings, but we must make the best possible use of the good things we have benefitted from by meeting remotely. A lot more local planning authorities will live stream meetings in the future as a matter of course, making planning much more accessible in the process.

It's ironic that that having embraced digital technology in decision making during Covid-19 we now have to take a big step back before the government legislates to put things right again.
James Fennell, Chief Executive


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