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Overview
The Government is introducing sweeping changes to the planning system in England, with a view to cutting down on bureaucracy and letting the market decide what we use our buildings for, as well as facilitating much needed housing development. The changes are both medium term and immediate. In this Alert, we focus on the immediate changes the Government has introduced to the Use Classes Order and Permitted Development Rights which are aimed at re-vitalising the high street and making it easier to build new homes. 

Background
As most people are aware, if you want to build something or change its use, you usually need to obtain  planning permission from a local authority. This can be a long and expensive process. Over the years, the Government has tried to add some flexibility to this process by allowing certain types of development to take place or certain changes of use without the need for planning permission. It has done this by creating various Permitted Development Rights (which grant permission for development automatically) and also creating Use Classes within which changes of use can be made which are deemed not to amount to development (which would require planning permission). The rules on Permitted Development Rights are set out in the General Permitted Development Order and the rules on permitted changes of use are set out in the Use Classes Order.

Historically, the permitted changes under these Orders have been very limited, so as to allow minor new developments (eg minor extensions to buildings) or minor changes of use (eg.cafes to shops). The new rules however, expand these permitted changes radically.  

We summarise below, first, the changes made to Permitted Development Rights and then the changes made to the Use Classes Order.  

Changes to Permitted Development Rights
The main focus of the new Permitted Development Rights is to meet the severe housing shortage and to do so by not concreting over green space. The Government is doing this in two ways: by allowing developers and landlords to build upwards by adding two storeys to existing buildings and by allowing the demolition of underused buildings and their replacement by new blocks of flats, in both cases without the need to obtain planning permission.  

There are detailed rules on when and in what circumstances these new rights can be used and so the following is only a summary of the main changes. 

New homes on existing flats
Up to two additional storeys of new flats are permitted to be built above the top floor of a purpose-built block of flats. These are a number of constraints on using this new right.  For instance, the "original" building must have been built after 1948 and before 6 March 2018.  It must be 3 storeys or more high. There are also height limits. As is often the case with permitted development rights, they cannot be used where the building is located in any of a number of specified protected areas, such as conservation areas.    

Though planning permission is not required to be applied for, anyone wanting to take advantage of the new rules will need to seek "prior approval" from the local planning authority. The authority cannot refuse approval for the development but can attach conditions to its implementation. These can cover a range of matters including transport and highways matters, the building's external appearance, mitigating flood or contamination risk and minimum standards to ensure adequate lighting and privacy. Although the Government has effectively slim-lined the planning process, still a considerable amount of details will need to be provided to the local planning authority as part of the prior approval process. Fees for this process are roughly two-thirds of those that would be charged for a full planning application.

Upwards Extensions on shops and business premises
Under the second main new Permitted Development Rights which have been created the following are allowed without the need for planning permission:

  • The construction of up to two extra storeys of flats (of an unlimited number) immediately above premises which are at least 3 storeys high and which are used within A1 (shops), A2 (financial and professional services), A3 (restaurants and cafes), B1(a) (offices) or other specified classes of use.
  • The construction of up to two extra storeys of flats (of an unlimited number) immediately above a terraced building which is at least 2 storey high (used as set out above).  Alternatively, the construction of one extra storey on an existing one storey terrace.
  • The construction of up to two extra storeys of flats (of an unlimited number) above a single dwellinghouse which is of two or more storeys in a terrace or of one extra storey on a dwellinghouse that currently comprises only one storey in a terrace.
  • The construction of up to two extra storeys of flats (of an unlimited number) above a single, detached dwellinghouse of two or more storeys or of one extra storey where the dwellinghouse currently comprises only one storey

Again, these Permitted Development Rights cannot be exercised in certain areas, such as sites of special scientific interest, etc. They are also subject to height limits. Again, though planning permission is not required to be applied for, a "prior approval" process is required in respect of a number of matters.

Demolition for replacement with residential
The third main new Permitted Development Right allows:

  • The demolition of either a single purpose-built block of flats or a single detached building comprising office use (Class B1(a), (b) or (c)); and
  • The construction of a purpose-built detached block of flats or a single purpose-built detached dwellinghouse.

In order to take advantage of this right, the building to be demolished must have been built before 1990 and still have existed on 12 March 2020. Its footprint must not have exceeded 1,000 sq. m and it must have been 18m or less high. It must also (in overview) have recently been vacant for a period of 6 months. The footprint of the new building must be within that of the old building. The new building must not have more than two storeys more than the old building. There are also some height restrictions. Again, development is not "automatically" permitted where the building is in certain areas such as conservation areas and though planning permission is not required to be applied for, a "prior approval" process is required in respect of a number of matters. 

Overall impact of changes to permitted development rights
It is hoped that these changes will help to address the housing crisis that has engulfed the UK. The race will now be on to find the "right sort of property" in order for these rights to be effectively exercised. Many of the parameters suggest that "post war" low/medium-rise developments are likely to be of particular interest, including the redevelopment of former/existing social housing and shopping centres. Whether that proves to be the case remains to be seen. 

Despite concern by many that this relaxation of planning control may lead to unsightly development, the numerous restrictions set out (in overview) above, will also mean that the new rights are unlikely, in themselves, to give rise to large amounts of new housing. 

Changes to Use Classes
As mentioned above, the second way in which the Government has simplified the planning system is by introducing additional flexibility into the Use Class system. As a general rule changing use within a Use Class does not require planning permission but moving from one Use Class to another does require permission. The Government has simplified this by abolishing many of the Use Classes and amalgamating them into one new Use Class, known as Class E. So, changing uses within Class E does not require permission.  

Those classes that were formerly known as A1(shops), A2(financial services), A3(restaurants and cafes), B1(offices, R&D and light industry) and D1(health centres and creches) are being abolished and amalgamated into Class E.  

Now, anything from a bank to a bowling alley will be covered by Class E and so the owner won't have to get planning permission to change the use of their building. However, any external changes (ie physical changes to the external appearance of the building) will usually require planning permission.   

Not all shops, or what are generally regarded a high street businesses, are included in Class E. Pubs (formerly, Class A4), takeaways (formerly, Class A5), cinemas and live music venues (formerly Class D2) are made into so-called sui generis uses.  Changes of use to (or within) sui generis uses will require permission. The Government's thinking here is that these sui generis uses should be protected as they the sorts of uses that bring vitality to a town centre and their loss could create ghost towns.   

"Former" Use Classes
Although the Government has amalgamated a large number of the former Use Classes to make it easier to change use in the future without the need for permission, one complicating factor is that the old Use Classes remain in force for the purposes of Permitted Development Rights for a limited period to the Summer of 2021. To explain: in addition to being allowed to change use within a Class without permission, it has also been the case that some changes of use between Classes was allowed without the need to obtain planning permission. That was achieved through Permitted Development Rights. In order to provide landowners with maximum flexibility those Permitted Development Rights will be available until Summer 2021.

We cannot give an exhaustive list of these Permitted Development Rights in this Alert, but, for example, the change of use of a shop (which used to be Class A1 and is now Class E) to a leisure use (formerly Class D2, now sui generis) would now require planning permission, but because the Government has preserved the old Permitted Development Rights planning permission is not required – at least until Summer 2021. 

Matters to consider
We note that changes between office and other types of commercial use that fall outside the new Class E will still require planning permission.  

Whereas local planning authorities have the power to disapply permitted development rights by way of "Article 4 Directions", they cannot interfere with Use Classes. This will prohibit local authorities, for example, from preventing changes of used between new Class E activities.

Overall, vacant town centre / shopping centre units will be more easily allowed to be reoccupied by alternative uses within new Class E. It will now be more difficult for local authorities to resist dilution of non-retail uses of such units.

Those hoping to create new restaurants without getting planning permission will still probably wish to apply for an alcohol licence.

Finally, it is important to note that many buildings are subject to S.106 planning obligations that "override" any flexibility. For example, such obligations may state that certain uses are confined to certain parts of a property, or set maximum floor space requirements for certain uses.  

Legal Challenge 
We note that many of these changes are now subject to a legal challenge in the courts. For more information on this please refer to our previous article. The result of this litigation might be that the changes described in this Alert are unlawful. However, any changes made in accordance with these new rules prior to any determination that they are unlawful will remain lawful.   

Conclusions
Asset owners and developers are likely to be particularly interested by the ability to redevelop existing buildings to provide more residential accommodation, as well as for existing commercial centres, high streets and office buildings to be "reorganised" by changing their planning "use" more readily than was previously the case.