Green light for wide Class E to residential PD right


A new permitted development (PD) right, from Class E (commercial business and service uses) to residential will be introduced, the government has confirmed.

The government will also press ahead with changes which it says will support public service infrastructure through the planning system, including extended PD rights for certain public buildings and a new planning fast track for major public service developments. 

This will implement, with some changes, the proposals contained in the consultation Supporting housing delivery and public service infrastructure launched in December 2020, which we previously wrote about here.

A new Class E to residential PD right

In its response to the consultation, the government confirms it will introduce a new national permitted development right to create new homes through the change of use from commercial business and service uses (Class E) to residential (Class C3).

The legislation introducing the new PD right will come into force on 21 April 2021. However, the right is subject to a requirement to obtain prior approval and an application for prior approval cannot be made until 1 August 2021.

The new right will be subject to some important conditions.

Size limit

The PD right will not apply to buildings with a cumulative floor space in excess of  1,500 square metres. The government originally proposed that there be no size limit, but has accepted the concerns of many respondents to the consultation that the loss of larger commercial units may have negative economic impacts on an area, and would place additional demands on local services through the creation of large numbers of new homes.

Larger buildings will require a planning application to change their use.

Vacancy requirement

The PD right will be limited to buildings that have been vacant for at least three continuous months immediately prior to the date of the application for prior approval. The government says that focussing the right on buildings that are already vacant will protect existing businesses.

At least two years in Class E

The consultation had proposed that the PD right be limited to premises in Class E on 1 September 2020, when the new use classes came into effect. Whilst that requirement has been dropped, it has been replaced with a condition that the PD right will only apply to buildings that have been in Class E (or, prior to 1 September 2020, any predecessor use class: A1, A2, A3, B1, D1(a), D1(b) or D2(e)) for at least two years before the application for prior approval.

To what buildings will the right apply

As proposed in the consultation, the right will not apply to listed buildings. Nor will it apply to buildings in sites of special scientific interest, sites that are or contain scheduled monuments, safety hazard areas or military explosives storage areas.

Where the right will apply

Premises in National Parks, Areas of Outstanding Natural Beauty, the Broads or any World Heritage Site will not benefit from the new PD right, but it will 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. The government says that a specific prior approval will allow for local consideration of the impact of the loss of the ground floor Class E use on the character of the conservation area.

Prior approval

Before taking advantage of the new PD right, an application for prior approval must be submitted to the local planning authority but not until  1 August 2021.

As was previously the case with applications for prior approval for Class B1 offices to residential certain issues must be addressed which include transport, contamination, flooding, noise, adequate natural light, and fire safety. Prior approval will also consider the impact on future occupiers from nearby industrial, waste management, storage and distribution uses.

Where the proposal includes the loss of any registered nursery or health centre, the impact on the provision of those services is subject to prior approval. In a conservation area, where it is proposed to change the use of the ground floor, prior approval will assess the impact of that change of use on the character or sustainability of the conservation area.

Fees

Use of the PD right will incur a fee of £100 per dwelling.

Timescales for completion

The change of use under the new right must be carried out within three years of the prior approval date.

Other PD rights

The government intends to consult further on changes to other permitted development rights as a consequence of the introduction of the new PD right.

Changes for public service buildings

The Government proposed PD rights and a planning fast track for public service buildings as set out in our previous legal insight.

The PD right to extend public service buildings

The Government will amend the PD right for public service infrastructure to:

  • allow for development of up to 25% of the existing buildings, or 250 square metres whichever is greater;
  • extend the height limit for new buildings from 5 metres to 6 metres unless within 10 metres of a boundary (in which case the height limit remains 5 metres); and
  • apply the right to development at existing prisons for the first time, but only where the site operates behind a closed perimeter boundary and where the development does not involve the erection, extension or alteration of any building beyond the perimeter as it stood on 21 April 2021.

University extensions will be subject to prior approval by the local planning authority in relation to transport and highways impacts, design and external appearance and impact on heritage and archaeology. Where a school is extended which results in its published admissions number increasing, the developer must submit a travel plan to the local authority within six months of the completion of the development.

The PD right does not apply if any rooftop structure such as air conditioning plant would exceed 1.5 metres.

A planning fast track for public service buildings

The government has confirmed it will speed up the planning application process for new major public service infrastructure involving hospitals, schools and further education colleges, prisons, young offenders’ institutions and other criminal justice accommodation.

The fast track will not apply where the proposed development requires an Environmental Impact Assessment.

Under the fast track, the statutory determination period and the statutory consultation period will be cut from 13 to 10 weeks and from 21 to 18 calendar days respectively, and local planning authorities will have to notify the Secretary of State on receipt of an affected application and of when they anticipate making a decision.

As proposed in the consultation, there will be no changes to the fee structure for fast track applications.

Comment

The speed with which the Government has implemented these new PD rights shows that it is committed to a process that it believes will increase housing supply, increase flexibility on the high street during a period of huge change and lighten the regulatory load on the public sector.  Planning authorities will welcome the fees that are payable for prior approval applications for dwellings but the loss of opportunity to provide affordable housing in developments that provide ten or more dwellings may only go to reduce still further the amount of affordable housing that is constructed. 

Contributor: Matt Battensby


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