The New Permitted Development Rights
Since the release of the awaited White Paper on Planning Reforms, there have not been many recognisable changes to the Planning System. However, we have in recent months seen a radical change to the use class system.
The Government published new legislation to bring about changes to the Use Class Order (The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020) by creating two new classes of permitted development rights (“PD rights”). Use classes determine how the use of a building is classified for planning purposes.
The change in use classes is deemed, by the Government, to be more reflective of businesses operating in town centres and high streets. The Covid-19 pandemic has shown the need for businesses to adapt and change to meet the current market needs and demands. The new use classes are to offer more flexibility to businesses.
From 1 September 2020 existing buildings that were already used for Class A1 , A2 , A3 , B1 and certain D1 and D2 uses will fall within a new Class E and, unless the permissions they operate under have specific controls, will be able to change to other uses within that new class without the need for planning permission. It is important to note that the Use Classes in effect prior to 1 September 2020 will be the ones used until the end of July 2021 for any change of use applications, prior approval applications or restrictions to the PD rights.
Below is a summary to the changes enacted by The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 but it is important to note that comprehensive guidance on these changes has not yet been published.
Use Classes from 1 September 2020
1. The new Use Class E – the “Commercial, business and Service” use class – it encompasses the previous use classes A1, A2, A3, B1 and parts of D1 and D2 and includes retail, food, financial and professional services, indoor sport and fitness, medical or health services, crèches and nurseries and light industry.
2. The previous use classes A4 and A5 which include pubs, wine bars and other drinking establishments, drinking establishment with expanded food provision , hot food takeaways, live music venues, cinemas, concerts, bingo and dance halls have become a “sui generis” use and so any change from one to another would require planning permission if there is a material change of use. Further guidance will hopefully provide clarity on what would be deemed a material change of use in these instances.
3. The new Use Class F - the “Local Community and Learning” use class – it encompasses the remaining parts of D1 and D2 which are not included in the new Use Class E. Class F includes education, non-commercial galleries, museums, libraries, public halls, places of worship, law courts, small corner shops, local community halls, swimming pools and outdoor recreational areas.
The new Use Classes Order further introduces “part use” allowing a change of use of part of a building or planning unit to an alternative Class E use without requiring planning permission.
Further, changes between the new uses within the same use class will not require planning permission.
Will these new use classes offer the flexibility they were intended to?
Local Authorities will still have the ability to limit the flexibility offered by these new use classes; for example, by planning conditions. Interestingly, the new PD rights appear to apply to conservation areas at present, although this is under consultation by the Government. There would however still remain the need to seek prior approval for a number of matters including environmental impacts, flooding, contamination and transport. It also still remains unclear whether CIL applies to the proposed PD rights and this again is subject to further consultation.
Demolition and Construction of New Dwellinghouses
From 31 August 2020, a new PD right (Use Class ZA) was introduced which allowed for some vacant commercial and residential buildings to be demolished for new dwellinghouses. Planning permission is not required to demolish and rebuild a vacant building if the rebuild is a dwellinghouse. There are certain limitations to this PD right which are as follows:-
The former vacant building must:
· have a footprint of no larger than 1,000m2 and be no higher than 18m;
· have been built before 1990;
· not be within a conservation area, national park, area of outstanding natural beauty or a site of special scientific interest;
· and have been vacant for at least 6 months before the date of the application for prior approval.
There are also new PD rights which allow certain existing buildings to be extended upwards by up to 2 storeys in order to create new homes and to extend existing homes. These permitted development rights are subject to prior approval. These PD rights are subject to height limits for the extended buildings on completion.
The recent changes to the Use Classes are aimed at offering greater flexibility for businesses to adapt and change between uses and also, to contribute to the national housing shortage. Some Local Authorities might be concerned over these changes as it could dilute commercial uses and affect employment opportunities. The Local Authorities can curb such changes by introducing an Article 4 direction to restrict PD rights but, this is yet to be seen. Further guidance and consultation shall continue to map the future of planning reform over 2021.