England planning news, February 2022
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A new Housing Minister and a resourcing and performance focus
Rt Hon Stuart Andrew MP was appointed Housing Minister on 8 February following a mini reshuffle. Mr Andrew is the MP for Pudsey, Horsforth & Aireborough.
His appointment came a few days after the Levelling Up the UK White Paper gave an update on Westminster’s approach to planning reform (see below) and on the same day that Uttlesford District Council became the only Council (at present) to fall into special measures that allow applicants to submit directly to the Secretary of State (with no right of appeal).
The day before, the Government had announced just over £200,000 of joint Department of Levelling Up, Housing and Communities (DLUHC) and Homes England funding to be drip-fed to Public Practice so that it can expand its placement programme across England, providing Built Environment professionals to local planning authorities (LPAs). Alongside the announcement, Public Practice launched a Local Authority Resourcing and Skills survey “designed to build understanding of skills gaps and the impact that a lack of resources has on officers and their teams across England”, the outcomes of which will be of wider interest too.
Less than two weeks earlier, the former Housing Minister had written to PINS advising that their performance measures had been changed. The PINS press release provides a helpful summary of what’s is in and what is out.
Earlier in January, the House of Lords Built Environment Committee had described an “evolving crisis” in terms of resourcing. Its Meeting Housing Demand report (see below) found it will be very important to address planning skills shortages, in order to build new homes. This finding made reference to the Lichfields ‘Timeline for the delivery of strategic housing sites’ - Figure 1 of: Lichfields, Start to Finish Second Edition: What factors affect the build-out rates of large scale housing sites?
“We heard that local planning authorities have a lack of skills, capacity and resourcing in their planning departments, which has led to delays, poor decision-making and greater reliance on the appeals process”. LPAs were found to be “severely underequipped in terms of design resources”.
These announcements point to a performance and resourcing agenda for the new Housing Minister. The 2020 Planning White Paper acknowledged resource heavy nature of its proposals, proposing : “a small proportion of the income [of the new development contributions system] should be earmarked to local planning authorities to cover their overall planning costs, including the preparation and review of Local Plans and design codes and enforcement activities”.
This could still emerge as part of the new Infrastructure Levy proposals being worked up, depending on the extent to which other Planning White Paper proposals come forward.
A document that was updated as the new Housing Minister started is DLUHC’s Guidance on planning propriety: planning casework decisions, which outlines how to address propriety issues when taking planning casework decisions but with the principles applicable to other elements of planning ministers’ roles. It should also be referred to by those working closely with planning ministers.
In terms of planning reform, there are several statements in the Levelling Up White Paper that give a direction of travel (see below). And before Christmas, the Secretary of State had reiterated support for the Planning (Street Votes) Bill (see Lichfields November Planning News) and gave a Labour Private Members Bill on flooding would have in principle support, but the Government would need to see how they ‘meshed’ with the wider agenda.
HM Government, The Rt Hon Stuart Andrew MP
DLUHC, Letter from the Housing Minister to the Planning Inspectorate
DLUHC, Uttlesford District Council: Notice of Designation
DLUHC, Letter from the Housing Minister to the Planning Inspectorate
DLUHC, Uttlesford District Council: Notice of Designation
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Quote of the month |
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The Minister of State, Home Office and Department for Levelling Up, Housing & Communities, Levelling Up debate, 7 February 2022 |
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Levelling up and changes to the planning system
The Levelling Up the UK White Paper, published on 2 February, describes the practical steps the Government will take that “will make this a better, fairer country for us all", according to the Prime Minister's foreword.
The White Paper is not a consultation exercise; it is a series of missions against which the Government is to be measured, albeit the Levelling Up Minister said, in a written answer, that the Government intends to “continue to engage with a wide range of stakeholders and partners".
Edward Clarke's blog considers what the Levelling Up White Paper's missions mean for the development industry.
In terms of future changes to the planning system specifically, there are several statements that show the elements of planning reform that are still favoured and provide hints on timescales for announcements, which we set out below.
Overview
The Chief Planner identified what she considers to be the key planning changes highlighted in the White Paper, in her February 2022 Planning Newsletter:
- “The simplification of local plans ensuring they are transparent and easier to engage with
- The consideration of new models for a new infrastructure levy
- A number of policies and powers to enable planning to better support town centre regeneration
- Improving democracy and engagement in planning decisions
- Supporting environmental protection through planning”
The Planning Newsletter said that there will be further updates on changes to the planning system “in the Spring", albeit a day earlier the Net Zero Minister’s response to a written answer asking when a Planning Bill would be published was much less specific, and reflected the White Paper:
“The timing, scope and content of any legislation required to deliver these [planning system] changes is under consideration, and further detail will be shared in due course".
The anticipated Levelling Up and Regeneration Bill, which will contain whatever changes to the planning system/reform that require primary legislation, is not mentioned in the White Paper.
The planning-related missions
Planning-related matters and proposals are presented under the overarching mission 3.4 “Restore a Sense of Community, Local Pride and Belonging”. And then under two White Paper missions shorthanded “Pride of place” (which includes heritage) and “housing” (missions 9 and 10 respectively). The technical annex to the White Paper explains that the metrics for measuring success against both are in their infancy.
Regeneration is one of three strands of the pride of place mission, the other being communities, culture, heritage and sport. The regeneration policy programme is focused on transformational projects (e.g. projects identified for Wolverhampton and Sheffield), high street rejuvenation and green spaces. The housing mission includes sub-missions of home-ownership and housing quality and planning reform – albeit changes to the planning system fall under other missions too.
High street rejuvenation – LA powers to fill units
The High Street rejuvenation’s section celebrates recently introduced permitted development rights, business rates relief and the High Streets Task Force.
The White Paper refers to the intentions to “incentivise landlords to fill vacant units by giving local authorities the power to require landlords to rent out vacant properties to prospective tenants. This will tackle both supply and demand side issues to avoid high levels of high street vacancies and blight, and in turn increase the attractiveness and vitality of our high streets”.
During the Oral Statement introducing the White Paper, the Levelling Up Secretary (SoS) said that this proposal builds on work by Jonathan Gullis MP. Jonathan Gullis has campaigned in Parliament for buildings not to be allowed to fall into disrepair. He is the sponsor of the Planning (Proper Maintenance of Land) Bill Private Members' Bill. This may provide clarificatory context when considering how far reaching the powers of the LA might be and when they should be used. Having said that, measures could of course go much further and might apply to all properties in a given location, rather than to certain use classes, although a wide variety of potential tenants might be put forward by the LA for Class E properties, given its breadth.
On a larger scale:
“[…] the UK Government will work with local leaders, the private sector and a range of government agencies and departments to focus on where government investment can be maximised – for example, in health and education facilities and in roads and railways; and where there are deliverable development opportunities – for example, vacant shopping centres or industrial premises”.
A key part of regeneration proposals is ‘refocusing’ Homes England so that it uses its statutory powers to partner with local leaders and to unlock barriers – which links to proposed changes to CPO powers.
Green space and Green Belt
Green Belt is to be enhanced and maintained - with “further greening the Green Belt in England".
Other plans for “green" spaces generally include bringing wildlife back, aimed at increasing public access while simultaneously delivering nature recovery; and securing further environmental improvements.
The greening of Green Belt may be linked to repeated criticism that the Green Belt isn’t green. Support is not given to the principle behind a Private Members' Green Belt Protection Bill, which is to require local planning authorities to allocate new Green Belt land of the same size when removing Green Belt land; such a decision is still considered a local matter.
Communities – including CIL
This sub-mission pulls together various proposals that are intended to have a more localised role in the future, whether this is put forward in the White Paper or elsewhere.
In this section there are also references to a review of neighbourhood governance, pilots of new models for community partnership and testing the proposed Community Covenants, which lead to an identified role for planning within Mission 9:
Planning: Councils and communities will create new local design codes to shape streets as residents wish; widen the accessibility of neighbourhood planning, encouraging more accessible hybrid models for planning committees in England; and look to pilot greater empowerment of communities to shape regeneration and development plans. The ability to have a meaningful say on individual planning applications will be retained and improved through new digital technologies.
The 'encouragement' of hybrid models for planning committees - but not expressly committing to legislate for them - is noteworthy and comes ahead of publication of the call for evidence or response to it. Support for virtual committees had been expressed by the SoS but not confirmed by the Government.
A proposed UK Strategy for Community Spaces and Relationships would link to planning policy (UK-wide) in due course. Notably this, the third of four guiding principles of the Strategy, would be:
“listening to communities – engaging with communities, local government and civil society to identify priorities, the assets that matter to local places, and the policies and actions needed to strengthen community infrastructure”.
Neighbourhood planning hasn’t been front and centre for some time. Its mention in the White Paper comes alongside funding for pilot schemes to fund neighbourhood planning in deprived and urban areas or areas piloting a simpler approach to neighbourhood planning. There has also been confirmation from the (then) Housing Minister that “we are committed to retaining neighbourhood planning as an important part of the planning system, and we will set out our proposed way forward shortly”.
The White Paper confirms that there will be neighbourhood portion to the new Levy, reconfirming that a new Levy is on the way and suggesting that the legislation behind it is likely to be similar to the much-tweaked existing CIL Regulations. According to the White Paper, the ways in which CIL can be spent locally will be explored while a new Infrastructure Levy is developed. The Government is to “explore how the existing Community Infrastructure Levy (CIL) can be used to support neighbourhood and community activity where Parish Councils do not exist across England”.
In the planning reform section, it is made clear that the new Levy is intended to increase land value capture and that affordable housing is to be provided via the Levy:
“The current planning system enables some developers to benefit disproportionately and unfairly from the land they develop. This is why the UK Government is developing models for a new infrastructure levy which will enable local authorities to capture value from development more efficiently, securing the affordable housing and infrastructure communities need”.
Planning reform, home-ownership and housing quality
The policy programme for home-ownership and housing quality form part of the housing mission: a. making home-ownership a reality; b. improving housing quality; and c. reforming the planning system.
That planning reform sits under the White Paper mission devoted to home-ownership and housing standards, is interesting in itself, given continued criticism that planning equals housing in the Government’s eyes:
The mission discusses the wider benefits of housebuilding, including removing constraints of productivity by allowing labour mobility, restoring a sense of community, having a stake in society through home-ownership.
The rhetoric is therefore on a housing system that works for everyone, rather than a planning system – which is recognised as being an element of the housing system objective.
There is a continued reference to housing availability and the demand for/push towards home-ownership, hence a reference to First Homes.
An important housing quality announcement is that there will be a Government appointed task force “launched shortly to look at ways better choice, quality and security of housing for older people can be provided, including how to address regional disparities in supply of appropriate and where necessary specialised housing".
There is an acknowledgement that falling access to home-ownership and social housing has resulted in a doubling in the size of the Private Rented Sector over the past two decades and that many are in temporary accommodation. In February, Tom Walker, one of the authors of the White Paper told Local Government Chronicle (£) that there will be a Private Rented Sector White Paper in June, which may be relevant to planning, given this mission.
There are references to planning and CPO powers beyond housing, and while the section quoted below is a bit of a round-up of planning related proposals not covered elsewhere in the White Paper, the intention to set a more positive approach to employment land in national policy is encouraging.
“The UK Government will enhance compulsory purchase powers to support town centre regeneration; provide further support for re-using brownfield land for development; set a more positive approach to employment land in national policy to support the provision of jobs; and increase engagement with infrastructure providers in plan making to bolster productivity. Building on progress to date, wider changes to the planning system will secure enhanced social and economic outcomes by fostering beautiful places that people can be proud of; improving democracy and engagement in planning decisions; supporting environmental protection, including support for the transition to Net Zero; and securing clear benefits for neighbourhoods and local people”.
Housing requirements and delivery - the south east vs everywhere else?
While the Government is insistent that the south east will not be levelled down, there are references to diverting funds away from the south east and measuring successful delivery of missions by measuring against the south east.
The White Paper says “UK Government investment in housing has been concentrated in areas where the private sector has already been investing most heavily, disadvantaging the North and Midlands”.
With regard to making home-ownership a reality, funds already announced are to predominantly deliver housing outside of London/South East, where housing pressure is among the greatest. The majority of homes to be delivered via the £1.8bn brownfield land fund will be targeted on brownfield sites outside London and the South East. The £11.5bn Affordable Homes Programme will deliver up to 180,000 affordable homes, with 75% of these delivered outside London.
While this says where investment is going, the intention that there will be a related outcome beyond funding allocations is there too. With reference to the Building Better, Building Beautiful Commission’s recommendations and communities to be developed in the future:
“These attractive new communities, made possible by the UK Government’s investment, and the rebalancing of housing and transport investment, will reduce pressure on housing and on greenfield and Green Belt sites in overheated areas of London and the South East.”
Many in the development sector have raised concerns that levelling up will mean a levelling down of areas with significant housing pressure. The Government has repeatedly sought to emphasise that this is not the case.
And in November the SoS said in response to Theresa Villiers' request to “halt urbanisation and save the suburbs" that the way housing need is assessed needs to be updated and “every part of England—indeed, every part of the United Kingdom—will have to share in making sure that we can meet the housing needs of the next generation, but we are seeking to achieve a fairer and more equitable distribution of need across the country.
In a January debate housing on housing and North Kent, the (then) Housing Minister reminded the House “housing need numbers, as calculated, are a starting point, not an end point" and, as such, housing numbers are decided locally. He indicated that the current standard method was devised to reflect the circumstances of the time: “We took a view a couple of years ago that, particularly given the pandemic, local authorities needed consistency and certainty, so we chose not to change the local housing need calculations for all but the 20 largest cities in our country".
A further revised standard method formula continues to be anticipated by developers and local planning authorities.
In the same debate, the Housing Minister indicated that the Government would still look at concerns around land banking, notwithstanding the outcome of the Letwin Review:
Sir Oliver Letwin found a couple of years ago that land banking, as it is popularly described, is not a particularly prevalent issue. However, I recognise the concern of local communities and our colleagues about this particular challenge. That is why we have committed, as part of our future planning reforms, to look carefully at how we can, shall we say, incentivise developers to build out on the applications that already exist, rather than looking for more and more applications to be given on other sites.
And in a later written answer said “where delays in starting or progressing sites may be avoidable and the Government wants to empower authorities with the tools to respond to such cases”.
November 2021 Lichfields research for the Land Promoters and Developers Federation and the Home Builders Federation explored the extent to which the house building sector must scale-up their delivery to achieve the national 300,000 homes per annum ambition. It found the equivalent of English LPAs granting permission for an extra 4 to 5 medium sized sites per year, or alternatively 4 to 5 large sites which deliver each year over a longer period, would be necessary - in addition to LPAs continuing to approve its usual ambient level of permissions being granted.
A Lichfields research piece for Barratt has found “existing housing mix policies will be based on evidence that pre-dates the pandemic and thus is unlikely to reflect the changing way in which people will now occupy their homes. This shift makes it more likely that the LPA’s review should conclude that the local plan must be updated to revise policies on housing mix, including to support provision of homes that are suited to working from home".
Housing Delivery Test results published
Housing Delivery Test (HDT) results for 2021 were published this January. The HDT is the Government’s annual measure of housing delivery for each local planning authority. This is considered against the number of homes required in each LPA over a rolling 3-year period. LPA’s which perform poorly against this requirement are met with sanctions.
Due to the effect of the pandemic, the Government adjusted the methodology for the HDT for a second year, with the ‘homes required’ figure reduced for two of the years. For the period 2019 to 2020 this was reduced by a month, and for 2020 to 2021 by four months.
Source: DLUHC, Lichfields analysis
At the national level, LPAs delivered 209,300 homes during the 2020/2021 period, 115% of the three year average target (181,678). The results show 71% of local authorities passed this year’s HDT and will face no sanctions.
This year, 17% of LPAs will face the presumption in favour of sustainable development, with three quarter of these LPAs being in the Greater South East. Analysis by Lichfields has revealed that two-thirds of the authorities facing the presumption in favour of sustainable development are in areas constrained by green belt policies, despite green belt authorities accounting for just 33% of authorities overall.
DLUHC, Housing Delivery Test Results: 2021 measurements
On 28 March, the final transitional arrangement for First Homes will come to an end. First Homes are the Government’s latest affordable tenure aimed at first-time buyers; homes must be discounted by a minimum of 30% against the market value, with the discount secured in perpetuity. The Government has published a model Section 106 Agreement for First Homes and updated planning practice guidance.
LPAs have been required to take First Homes policy into account when determining planning applications that include an element of affordable housing since 28 December 2021. However, the requirement does not apply to planning applications that determined prior to 28 March 2022, so long as ‘significant pre-application engagement’ has been undertaken. Where significant engagement did not happen, the transitional period ended on 28 December 2021. There are separate transitional arrangements for plan-making, which also expired on 28 December 2021.
While the First Homes national policy is a material consideration, affordable homes tenure mix policy in an up to date development plan will continue to be the starting point. There might also be other material considerations that indicate First Homes would or would not be a suitable tenure in any given location.
Consequently, taking account of local needs and viability, appetite for First Homes will likely be varied across councils. As such, many authorities may still continue to favour the delivery of alternative intermediate and more affordable tenures.
A number of planning authorities have published statements on the policy since its introduction. A practice note from the GLA has encouraged LPAs to consider the deliverability and affordability of First Homes in their areas, though is clear that the Mayor will continue to favour the provision of other tenures of affordable housing. The Lake District National Park authority has stated that the Authority will not support the provision of First Homes in planning applications, as this would undermine Local Plan policy. That these very different authorities have similar approaches, suggests that in some areas for First Homes to come forward it will likely be developer-led, with developers demonstrating that material considerations indicate that First Homes should be provided, rather than LPAs insisting on them (e.g. Dylon, LB Bromley.
DLUHC, First Homes
Written Ministerial Statement, Affordable Homes Update 24 March 2021
Lichfields, London’s First Homes – left out in the cold?
The House of Lords Built Environment Committee published Meeting housing demand on 10 January 2022. In addition to the conclusions mentioned above, the Committee chaired by Baroness Neville-Rolfe (Conservative), concluded:
- The Government’s target of one million homes by 2025 will not be reached or nearly reached without reducing the barriers such as “skills shortages, lack of available land, resources for local planning authorities, the reduced role of SME housebuilders, inadequate support for social housing provision, and the barriers and delays in the planning system”.
- “Government must give local planning authorities better tools to encourage build out, particularly on large strategic sites. We note proposals to increase local planning authorities’ leverage, including setting a three-year time limit, and encourage the Government to consider this option”
- Uncertainty about the future of the planning system is causing delays
- “[…] the 35% uplift in housing targets in the 20 largest urban areas has affected the delivery of local plans and risks backlash from local communities. The Government should consider options to update the calculation of housing targets as soon as possible, to provide certainty to councils”.
- Local plans should include standardised definitions to simplify them and improve community engagement in them
- More should be done to increase the predictability and transparency of s106 agreement and the Community Infrastructure Levy
- Any new obligations system should “provide safeguards to ensure that the resources raised are spent on the delivery of affordable homes or necessary infrastructure early on in the development and are tied to identified needs”
- Funding for building on brownfield land is welcomed, albeit it must be noted that brownfield land is disproportionately in areas with less pressure on the housing market
- Pilot schemes facilitating residential development around major development close to major cities, should be considered by the Government
The report also draws conclusions relating to the lack of value provided by home-ownership schemes, the need to transition to spending more on social housing, encouraging an expansion of build to rent and taking a co-ordinated, cross department approach to later living policy.
DEFRA is consulting on how its biodiversity net gain (BNG) metric will be applied and regulated in practice. The provisions for BNG were introduced under the Environment Act 2021 and seek to ensure that planning permissions in England secure a 10% improvement in biodiversity.
The consultation states that most planning permissions will be subject to BNG, with the exception of householder development, changes of use, and developments impacting habitat below a specified threshold. Permitted development will also be exempt from the requirements. It is proposed that most sites with fewer than 10 residential units or less than 0.5ha in size will apply a simplified metric.
While BNG has been a requirement in planning for some time, the approach has differed across authorities. Enshrining biodiversity net gain in legislation seeks to ensure measures are applied consistently. BNG is to be achieved through a mandatory condition that would apply to all planning permissions; this is expected to come into effect in November 2023. Applicants will be required to submit a biodiversity gain plan for approval in order to discharge the condition. This will need to include the following:
- the pre-development biodiversity value,
- the proposed approach to enhancing biodiversity on-site, and
- any proposed off-site biodiversity enhancements (including the use of statutory credits) that have been planned or arranged for the development.
The consultation confirms there will be additional requirements for phased and outline planning permissions. These will be set out in secondary legislation.
A similar approach is expected for Nationally Significant Infrastructure Projects (NSIPs). While the consultation states that BNG should apply for most NSIPs, some types of NSIP may not be able to deliver 10% improvement in biodiversity, though may be able to deliver a lower percentage target. BNG requirements for NSIPs will be brought introduced via national policy statement. Any future ‘biodiversity gain statement’ (or statements) will set out the biodiversity net gain requirement for the different types of NSIP, stating date from which the objective should be achieved. The consultation confirms that Government will publish a biodiversity gain policy statements at least 2 years before requirement are due to take effect from, i.e. by November 2025.
A mitigation hierarchy will apply equally for all development types. Negative impacts on biodiversity are to be avoided where, with mitigation and compensation used where this is not possible or appropriate.
In terms of monitoring BNG, the consultation proposes that planning authorities will need to set ‘specific and proportionate’ monitoring requirements via planning conditions and obligations, in order to secure offsite or significant on-site habitat enhancements. It will be the applicants responsibility to report this, though Natural England are to standardise the process for this. Failure to deliver, or to attempt to deliver, BNG outcomes may result in enforcement action by the LPA.
The consultation will close on 5 April 2022, with responses helping to shape secondary legislation, policy and guidance.
Lichfields, Does the Biodiversity Net Gain consultation deliver?
DEFRA, Consultation on Biodiversity Net Gain Regulations and Implementation
Commencement and implementation of planning permissions in relation to forthcoming emissions reduction legislation
In December 2021, the Government announced changes to building regulations that will require CO2 emissions from new build homes to be around 30% lower than current standards and emissions from other new buildings, including offices and shops, must be reduced by 27%. Improvements to ventilation are also required.
The new regulations will come into effect from 15 June 2022. The Government’s press release explained the transitional arrangements:
“[…] if a building notice, initial notice, or full plans for building work are submitted to a local authority before 15 June 2022, then provided the building work commences by 15 June 2023, work on that individual building is permitted to continue under the previous standards”.
During a 5 January debate on “New Homes: Developers, Housebuilders and Management Companies, Levelling Up Minister, Eddie Hughes, said that there is proposed to be a distinction drawn between implementation of a planning permission and commencement of development, when determining which Net Zero related building regulations legislation to refer to:
“[…] a number of Members have highlighted that for net zero, we need to build homes that are as environmentally sound and low carbon in their production as possible. People are concerned about the transition to the new legislation. Just before Christmas, we introduced part L of the building regulations to improve the energy efficiency of homes. For a developer to make use of the transitional arrangements, they must have submitted an initial notice, a building notice or a full planning application to the local authority prior to the new regulations coming into effect in June 2022. They must then have commenced work on an individual building to which they want to apply the previous standards before June 2023.
Members referred to the idea of simply digging a trench in order to have started work on a site, but we are going to be more stringent with the application of the arrangements. For the previous regulations to apply, developers must have started the foundations of a building, for example. Those transitional arrangements mean that developers can no longer build to out-of-date energy standards over several years as sites are developed. Unless construction has actually commenced, they will need to build to current regulations. A full technical consultation with regard to the future homes standard is planned for spring 2023. As part of that, we will consider what transitional arrangements are appropriate for that legislation”.
DLUHC, New homes to produce nearly a third less carbon
HM Parliament Hansard, New Homes: Developers, Housebuilders and Management Companies, 5 January 2022
The Future Buildings Standard: summary of responses, and government response
Several time-limited PD rights made permanent
Two time-limited permitted development rights introduced to support the hospitality and leisure sectors during the pandemic were made permanent this January. These relate to the following two provisions in the General Permitted Development Order 2015:~
- Class BB of Part 4 which allows for moveable structures within the curtilage of a pub, café, restaurant, or historic visitor attractions,
- Class BA of Part 12 which permits for markets to be held by or on behalf of local authorities, and
For moveable structure within the curtilage of pubs, restaurants and historic visitor attractions, new limitations have been introduced to address any potential impacts such structures may have on amenity, such as noise, appearance, and the effect on heritage assets. These require development to be a minimum of 2 metres from any residential boundaries, while the height is restricted to a maximum of 3m, with a maximum footprint not exceeding the lesser of:
- 50% of the footprint of the building, or
- 50 square metres.
In addition, Class A of Part 12A, which permits emergency development b local authorities and health service to bodies has been extended by an additional 12 months, with the right now ending on 31 December 2022.
(Then) Housing Minister Christopher Pincher MP commented on the changes:
“Making these measures permanent will help business and communities to build back better from the pandemic and are just one part of our vision to transform towns and cities across England into thriving places to work, visit and live.”
The decision to extend these rights was criticised by the House of Lords Secondary Legislation Scrutiny Committee:
“The changes introduced by the Town and Country (Amendment) (No. 3) Order making permanent previously time-limited provisions to the planning regulations around moveable structures may have an adverse impact on members of the public and yet they will have no right to object under the planning process. This issue may outweigh any economic benefits to towns and city centres arising from their implementation.”
The consultation outcome confirms that various other time limited PD rights introduced during the pandemic will not be extended. These include the temporary provision for pubs and restaurants to offer takeaway food and drink, which is set to expire in March 2022; the doubling of the 28 day rule for the temporary use of land which expired on 31 December.
The amendment Order also introduced additional PD rights for the MOD to support the delivery of defence infrastructure across its estate.
The Town and Country Planning (General Permitted Development etc.) (England) (Amendment) (No. 3) Order 2021
House of Lords Secondary Legislation Scrutiny Committee, Lords Committee criticise Department over two pieces of building and planning legislation
Lichfields has been following prior approval appeal decisions relating to upwards extension permitted development rights (PDRs) and had noted differing approaches to determining impact on the streetscene. The differing approaches to interpreting the scope of prior approval matters relating to amenity and external appearance for upward extension PDRs were the subject of a recent High Court judgment that provides some clarity.
The hearing combined three different judicial review claims; each were in respect of refusals of prior approval for additional storeys on single dwellings by a Planning Inspector on appeal. We provide an overview of the judgment here because it is relevant to Part 20 PDRs for construction of new dwellinghouses on flats and commercial buildings.
The judge considered the correct interpretation of prior approval matters required by the conditions of PDRs upwards extensions to dwellings, in Part 1 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO).
The prior approval matters subject of the case were those at Part 1 (3)(a)(i) and (ii):
“(3) […] (a) […]
(i) impact on the amenity of any adjoining premises including overlooking, privacy and the loss of light;
(ii) the external appearance of the dwellinghouse, including the design and architectural features of—
(aa) the principal elevation of the dwellinghouse, and
(bb) any side elevation of the dwellinghouse that fronts a highway; [...]"
According to the judgment "In the decisions challenged in these proceedings, the Inspectors took the broader approach [to interpretation] in relation to external appearance and, in two cases, to amenity".
The judge recognised that the conclusion on how to interpret these prior approval matters would not only be relevant to Part 1 PDRs, but would also affect the “proper construction and ambit" of the PDRs for upward extensions that create new dwellings on residential, commercial or mixed use buildings (i.e. Part 20 PDRs) - and potentially non-residential PDRs.
The judge summarised his conclusions himself:
“(i) Where an application is made for prior approval under Class AA of Part 1 of Schedule 2 to the GPDO 2015, the scale of the development proposed can be controlled within the ambit of paragraph AA.2(3)(a);
(ii) In paragraph AA.2(3)(a)(i) of Part 1, “impact on amenity" is not limited to overlooking, privacy or loss of light. It means what it says [i.e. it says ‘including’ for a reason];
(iii) The phrase "adjoining premises" in that paragraph includes neighbouring premises and is not limited to premises contiguous with the subject property;
(iv) In paragraph AA.2(3)(a)(ii) of Part 1, the "external appearance" of the dwelling house is not limited to its principal elevation and any side elevation fronting a highway, or to the design and architectural features of those elevations;
(v) Instead, the prior approval controls for Class AA of Part 1 include the “external appearance" of the dwelling house;
(vi) The control of the external appearance of the dwelling house is not limited to impact on the subject property itself, but also includes impact on neighbouring premises and the locality".
Mr Justice Holgate also found scale can be controlled because the Part 1 Class AA PDR, which “sets the outer limits, or parameters, of what may lawfully be put forward in an application [...]". Accordingly, not all development approved under Class AA may reach one or more of those maximum limits, because a developer may choose to seek approval for a lesser scheme, or the decision-maker may decide that the scale of the proposal (or some aspect of that scale) is too great".
The judge said that there is no evidence that the conclusions in the judgment drawn “will in practice make it impossible or difficult for developers to rely upon these permitted development rights" given that individual decisions will be determined according to the judgment of the decision maker.
All three claims were dismissed.
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The Lichfields perspective |
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| 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