Government proposes new residential PD right and public services 'fast track'

The government has launched a consultation seeking views on the proposed introduction of a new permitted development (PD) right to allow for the change of use from any use, or mix of uses, within the new Class E (commercial, business and service) to Class C3 (residential). 

The consultation also proposes measures to provide public service infrastructure more quickly through expanded PD rights and a new streamlined planning application process for hospitals, schools and prisons. 

A new Class E to residential PD right

Why is the government proposing the new right?

The government says it will support economic recovery, housing delivery and the regeneration of our high streets and town centres, and believes the new PD right will increase the supply of new homes. It will also allow surplus commercial and business space to be transformed, which could give high streets a new lease of life by increasing footfall. It will also limit greenfield development by making the most of brownfield sites.

In a nutshell, what exactly is proposed? 

The new PD right would allow for the change of use from any use, or mix of uses, within the new commercial, business and service use class (Class E) to residential use (Class C3) without the need to apply for planning permission.

The new right will be significantly wider than existing PD rights. For example, indoor sports venues, restaurants and creches will benefit, in addition to offices and retail premises.

What about the existing PD rights?

The new right would replace the current PD rights for the change of use from both office and retail premises to residential, which will remain in force until 31 July 2021.

Will there be a size limit on buildings that can benefit from the right?

No size limit is proposed. The government proposes that the impacts of larger schemes can be managed through the prior approval process.

Are there any particular exclusions or limitations to the new PD right? 

Similar to other existing rights, the right would not apply to sites of special scientific interest, listed buildings and sites that are or contain scheduled monuments, among other exceptions.

Premises in national parks and areas of outstanding natural beauty will also be excluded. The PD right would, however, apply in conservation areas. Many high streets are designated conservation areas and the government does not want to exclude those areas from the benefits it believes the PD right will bring.

Another important limitation is that, to benefit from the new PD right, premises must have been in Class E on 1 September 2020 when the new use classes came into effect.

Pubs, (whether or not they have an expanded food offering), theatres, and live music venues all fall outside of Class E and will not benefit from the proposed PD right. 

What matters will be subject to local consideration through prior approval?  

The government is proposing a similar prior approval process as applies to existing office to residential PD rights, including flooding, transport, contamination, impacts of noise, adequate natural light, and fire safety. The government says that new homes built under the PD right will be subject to high standards to ensure they provide adequate natural light and space.

A planning fast track for public service buildings?

What changes are being proposed? 

There are two elements to the government’s proposals for public service buildings:

• Expanding the existing PD right which allows educational establishments and hospitals to extend without the need for a planning application.
• Introducing a more streamlined planning process for public buildings, where a full planning application is required. 

Why is the government proposing these changes? 

The government wants new hospitals, schools, further education colleges and prisons to be delivered faster. It believes there will be benefits for society in fast-tracking public service buildings through the planning process and in allowing them to expand more flexibly under PD rights. The consultation states that current statutory timescales are not being met. 

How will the PD right to extend public service buildings change?

Currently, extensions or additional buildings are limited to no more than 25% of the gross floor space of the original buildings with a maximum cap of 100 square metres, or 250 square metres in the case of schools. The height of new buildings is also restricted to 5 metres and development close to a boundary is restricted. 

The proposal is to allow facilities to be expanded by up to 25% of the footprint of the current buildings on the site at the time the new legislation is enacted, or up to 250 square metres, whichever is the greater. The height limit would be raised to at least 6 metres (views are sought on possibly raising it higher), excluding plant on the roof, except where it is within 10 metres of the boundary or curtilage.

The big winners are likely to be schools and hospitals that have enlarged or developed additional buildings over time and those with a smaller footprint. The right will also apply to prisons for the first time. 

What public service developments will benefit from the fast track planning application process? 

Hospitals, schools, further education colleges, prisons, young offenders’ institutions, and other criminal justice accommodation will benefit, but only where they constitute “major development”, are principally funded by government, and would currently be subject to a 13-week statutory determination period. 

“Major development” will cover works carried out on a site having an area of 1 hectare or more, and/or involving the provision of a building or buildings where the floor space to be created by the development is 1,000 square metres or more. 

EIA developments are excluded from the fast track. 

How long will local planning authorities have to decide fast track applications?

The government proposes a 10-week period. The consultation emphasises the importance of pre-application engagement to ensure this timescale remains realistic. 

Post-permission matters such as discharge of conditions or associated section 106 agreements must also be prioritised. The consultation says the government will monitor local authority’s performance, but makes no concrete proposals in this regard. 

What about statutory publicity and consultation in fast track cases? 

The consultation proposes to reduce the minimum period for public representations from 21 to 14 days. Statutory consultees will have only 14 days to respond, rather than the current 21. 

Are existing planning policies affected by the fast track? 

No. National and local planning policies must still be taken into account.

Will the fees for fast track applications change?

There is no proposal to change the fee structure. 

Comment

The government has found changes to PD rights a quick way of changing planning law and despite heavy criticism of some of the developments that have been built under the current office to residential PD right, seems committed to continuing with more changes.  Use Class E has recently survived a legal challenge and covers a wide range of uses. It seems quite likely that local authorities will act to protect the High Street from becoming largely residential through the use of Article 4 Directions.

The proposals for public service buildings could be considered to be further erosion of the democratic element of planning with more PD rights going hand in hand with shorter consultation periods both for statutory consultees and the public.  However, facilitating the provision of social infrastructure in a more timely fashion should generally be welcomed and may reduce the cost to the public purse at a time when local authority budgets in particular are under significant pressure.