UK: The New Permitted Development Rights 2013

Last Updated: 10 June 2013
Article by Anne Bennett

Following on from the Growth and Infrastructure Act 2013, and continuing its efforts to reduce red tape, the Government has published the Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2013.

The coalition government believes that "a swift and responsive planning system is vital for securing sustainable development." The changes, which are intended to "unblock" the planning system and so promote growth, have been considered at length over the past few months (and in some cases years).

These new and amended rights will be effective from 30 May 2013.

This note is only intended as an overview of the main changes to the permitted development (PD) rights. It is therefore essential to consult the detailed regulations before any development is undertaken.

Household Extensions (Part 1 Class A)

The Growth and Infrastructure Act gave the Secretary of State powers to introduce measures to introduce a prior approval procedure for household development. The new regulations introduce the new temporary PD rights for householders' extensions and set out the detail of the "light touch neighbours consultation scheme".

Despite overwhelming opposition in responses to consultation and in Parliament, the PD rights are amended to allow rear extensions of up to 8 metres on detached dwellings and up to 6 metres on other dwellings. The rights do not apply to dwellings in sensitive areas such as conservation areas or national parks etc and will "initially" only apply to extensions to be developed before 30 May 2016, although the Government has stated that "the policy will be kept under review to establish the scope for extending the scheme".

In response to the much publicised criticism of this measure the regulations introduce a number of procedural requirements. Most notably, before any such extension is commenced the developer is required to provide to the Local Planning Authority (LPA) a written description of the development including specific measurements as well as a plan and addresses of neighbouring properties.

The LPA is then required to notify adjoining owners, giving 21 days to make representations. Where an objection is received the LPA must consider the amenity of all adjoining premises. The development is not permitted until the LPA has given notice of its 'prior approval'.

Fences etc (Part 2 Class A)

PD Rights for "minor operations" are amended to allow schools to erect fences etc alongside highways up to 2 metres high where before all such fences were limited to a height of 1 metre.

Business change of use thresholds (Part 3 Class B)

The permitted change of use from B2 (general industrial) or B8 (storage and distribution) to B1 (business) and the change of use from B1 or B2 to B8 will now be permitted up to 500 square metres. The current limit is of 235 square metres.

Change of use Office to Residential (Part 3 Class J)

New PD rights are introduced permitting the change of use from B1(a) (offices) to C3 (dwelling houses). There are important limitations to this :

The regulations confirm that 17 Councils have been granted exemptions. They are the City of London, the London boroughs of Islington, Hackney, Tower Hamlets, Southwark, Lambeth, Wandsworth, Westminster, Kensington and Chelsea, Camden, Newham, the Vale of the White Horse in Oxfordshire, Stevenage in Hertfordshire, Ashford and Sevenoaks, both in Kent, East Hampshire, and Manchester City Council. The specific areas within these administrative areas where the permitted change of use will not apply are set out in Article 1(6A)of the amended GPDO.

In an impact assessment on the office conversion rules, the DCLG said that areas had been exempted where the new rules would cause "either the loss of a nationally significant area of economic activity or a substantial adverse economic consequences at the local authority level which are not offset by the positive benefits the new rights would bring".

A Royal Town Planning Institute spokesman said: "A large number of local authorities were unsuccessful in arguing for an exemption. We share the view that it is difficult to see the precise reasons for the decisions around specific exemptions." So far the government has not published its justification for granting exemptions in some of the locations but not others. It remains to be seen whether any of the disappointed authorities mount a challenge to the decision not to grant exemption.

The rights will only apply where the building has either, been in use as an office immediately before 30 May 2013 or, if vacant, where its last use was an office use. This will disqualify buildings that have not actually been used for offices. In our view "in use" means in actual use and not merely having the benefit of planning permission for office use and the usual rules will apply where there has been an intervening use since the office use.

DCLG has confirmed that the legislation is intended to avoid developers building offices with the sole intention of sidestepping the requirements for residential planning permission such as the provision of affordable housing or other section 106 obligations. However, not allowing vacant newly built offices to be brought into a viable use does seem to undermine one of the key objectives of the legislation, namely providing an opportunity for office owners and developers to bring "underused buildings back to life and create much needed new housing".

The permitted right to change of use will only apply where the use as a dwelling house commences after 30 May 2013.

Such changes of use are permitted subject to a prior approval procedure in which the LPA will consider transport and highway impacts and contamination and flooding risks.

Change of use to school (Part 3 Class K)

Described by the Secretary of State as "a move to assist the free schools agenda there are a series of measures to make it easier for parents and community activists to convert existing buildings to become new state funded schools." New PD rights are introduced permitting a permanent change of use from Business (B1), Hotels (C1), Residential Institutions (C2) Secure Residential Institutions (C2A) or Assembly and Leisure uses (D2) to a state funded school.

The permitted use is limited to use as a state funded school or uses ancillary to that use and does not permit any of the other non residential uses permitted under Class D1. Such changes of use are permitted subject to a prior approval procedure in which the LPA will consider transport and highway impacts and contamination and flooding risks. There is also a right to change the use of land from a school permitted under this new right, back to the previous lawful use of the land. (Part 3 Class L)

Change of use of Agricultural Buildings (Part 3 Class M)

New PD rights are introduced to "boost the rural economy whilst protecting the open countryside from development". These will permit a change of use from an agricultural building to a flexible use falling within A1 (shops) A2 (financial and professional services) A3 (restaurants and cafes) B1 (Business) B8 (storage & Distribution) C1 (hotels) or D2 (assembly & leisure).

The right will only apply to buildings that have been solely in agricultural use since 3 July 2012 or, in the case of buildings that did not come into use until after that date, these must be used for an agricultural use for at least 10 years before they will benefit from the right.

There is a cumulative limit of up to 500 square metres within an agricultural unit that may benefit from this right.

Flexible use means that subsequent changes to any of the other uses are also permitted.

Existing PD rights to extend office buildings will apply to buildings that have changed to offices under this new right.

For initial and subsequent changes of use of buildings where the cumulative area of floor space to be changed is up to 150 square metres the developer must notify the LPA

Where the cumulative floor space is between 150 and 500 square metres the prior approval provisions will apply.

Prior Approval

It will be noted that a number of the new PD Rights are subject to the "prior approval" of the LPA. This means that the commencement of a development will be prohibited until either prior approval is granted, a decision is made that prior approval is not required, or where a planning authority has not made a decision, the expiry of 56 days following the date on which the LPA received the application. Where a LPA is unable to give prior approval, it will be able to ask the applicant to submit a formal planning application.

The Government clearly hopes that the introduction of a prior approval regime will speed up the planning process whilst still safeguarding against automatic approval of proposals with potentially severe impacts. At least the legislation is clear on what can be considered by local planning authorities when determining whether prior approval is needed. The new paragraph N of the General Permitted Development Order now clearly sets out how the process should operate although it is less clear how much additional information the LPA may require to be submitted in order to determine a prior approval application.

Use for Temporary State Funded School (Part 4 Class C)

A new right is created for the use of any building and any land within its curtilage as a state funded school for a single academic year.

The right does not apply to listed buildings or scheduled monuments or sites in a safety hazard area or a military explosives storage area nor to uses outside the uses in the Use Classes Order (i.e. sui generis uses)

It only arises where the Secretary of State has notified the LPA that the site has been approved for a school

It permits use as a school together with ancillary uses but not any other D1 uses

The permission lasts for one academic year after which the site reverts to its previous lawful use and can only be used once in relation to a particular site.

Change of use aimed at helping new and start-up businesses. (Part 4 Class D)

Aimed at "people looking for premises to test new business ideas and other popup ventures" the Government will introduce, for a single period of up to 2 years, starting on the date the change of use commences a change of any building and land in its cartilage

  • From A1 (shops) A2 (financial and professional services) A3 (restaurants and cafes) A4 (drinking establishments) A5 (hot food takeaways B1 (Business) D1 (non residential institutions) and D2 (assembly and leisure)
  • To flexible A1 (shop) A2 financial and professional services A3 restaurants & café) or B1 (Business)

There is a limitation of up to 150 square metres.

It should be noted that none of the new permitted rights to change of use apply to listed buildings or scheduled monuments, or sites in a safety hazard area, or a military explosives storage area.

Increased thresholds for extension and alterations to

- Industrial and warehouse developments (Part 8 Class A)

- Office buildings (Part 41) and

- Shops, catering, financial or professional services (Part 42)

For a temporary period until 30 May 2016 the thresholds for permitted extensions and alterations to buildings are increased. The developments must be completed on or before 30 May 2016

Amendments to PD Rights for development by electronic communications code operators (Part 24)

For a development completed before 30 May 2018 prior approval will not be required for construction installation or replacement of various equipment.

The changes represent a significant extension to the right to develop without the need for express planning permission. They come on the back of a raft of government initiatives aimed at kick starting the economy through development.

Nick Boles the Planning Minister recently remarked "if anyone comes to me with an idea for new planning legislation I am going to shoot them". We will have to wait and see whether the changes will have the impact intended, and indeed whether the Government can resist making further reforms rather than letting the planning regime settle down.

Finally I repeat the warning - Permitted Development Rights are very detailed it is essential to consult the amended order before proceeding with any proposed scheme.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Anne Bennett
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