Our thoughts on the recent changes to the English planning system

On 21 July the Government published the new revisions to permitted development rights which allow for certain kinds of development without the need for a full planning application.

Upwards extensions

Four new rights allow for the upwards extension of buildings, which come into force on 31 August:

• Class AA – permits construction of up to two new storeys of flats on top of detached buildings in commercial or mixed-use
• Class AB – permits the construction of new flats on the top of terraced or semi-detached buildings in commercial or mixed-use
• Class AC – permits the construction of new flats on top of terraced dwellinghouses
• Class AD – permits the construction of new flats on top of detached dwellinghouses

These rights are subject to a number of conditions: the buildings must have been built between 1948 and 2018; height regulations must be adhered to; and these rights do not apply either to listed buildings or to buildings in conservation areas. Prior approval must be sought from the local authority, where amenity impact, design, highways impact, noise impact and air traffic impact can all be assessed, as well as whether any extension would impact protected views (a consideration only in London).

Also introduced are new rights to allow homeowners to extend upwards by up to two storeys.

These rights are in addition to the already-introduced right to allow free-standing blocks of flats to be extended by up to two storeys, which will come into force on 1 August.

Demolition and rebuilding

Of considerable interest is the right to demolish vacant buildings and replace them with new residential units. Class ZA allows for the demolition of commercial buildings (use classes B1a, B1b and B1c; at least until these uses become part of the new Class E), and the erection of a purpose-built detached block of flats or a single dwelling.

The right does not apply in conservation areas, to listed buildings, if the building is over 1,000 sqm, if it is constructed after 1989, if it is unsafe/uninhabitable through deliberate action, or if it has been vacant for less than six months. The new building must be on the same footprint as the old building and cannot be more than two storeys/7m higher than the original building, or more than 18m high overall.

Again, prior approval is needed where the local authority can consider the design and appearance of the proposals. This includes the amenity of future occupants and surrounding residents in terms of overlooking and overshadowing, highways impacts, flooding impacts, heritage impacts, noise impact, contamination impacts, and the impact on surrounding businesses/residents. Arguably this covers everything that may be otherwise material in the determination of an application for express planning permission for the same development, except for principle.  A construction management plan must also be submitted.

The rights are in some ways not as extensive as previously hinted, they extend only to commercial buildings and not to industrial or residential (although vacant residential buildings are few and far between).

Some of the prior approval conditions show that the Government has taken on board the justified criticism of current permitted development rights, for example proposals will be assessed on their design merits, and natural light must be provided to all habitable rooms. This is welcome, though there is still no mention of the need for resulting units to be in accordance with the national internal space standards.

As a whole thought, and as we have previously suggested, it is hard to envisage the application of these new rights having a very substantial impact on delivery of dwellings. Many of our historic towns and city centres such as Cambridge and Oxford are covered by conservation areas. The criteria under which proposals will be assessed is not all that different to a planning application (albeit there is to be no assessment against local plan policies). And given the need for housing which this right seeks to address, it seems short-sighted to limit any rebuilding to within the footprint of the existing building – many of our out-of-centre office blocks come with acres of unnecessary and unsightly parking, which could be densified.

All in all, it seems unlikely that these new permitted development rights will cause a significant swell in loft living. Instead, for a government seeking to simplify the planning system, it may paradoxically add yet another layer to already complex permitted development rights legislation.

It is the revisions to the use classes order, however, which may prove far more radical. Predictions that the new use classes would apply only to designated areas, or that the ‘general commercial’ use class would sit alongside the existing use classes, have been proven wrong.

In a sweeping reorganisation of an arguably elderly system rooted in the 1980s high street, we will be saying goodbye to A1, A2, A3, B1, D1 and D2 use classes – and hello to classes E, F.1 and F.2.

Class E

This is the new ‘Commercial, business and services’ use class, which has been touted by Robert Jenrick for the last couple of months. Class E will replace:

• A1 (shops), A2 (financial and professional services), and A3 (café and restaurant) uses
• B1 uses (including B1a offices, B1b research and development facilities, and B1c industrial uses suitable for a residential areas)
• Certain D1 uses (clinics, health centres, creches, day nurseries, and day centres)
• Certain D2 uses (gyms and indoor recreations not involving motorised vehicles or firearms)

Class F.1

This is the new ‘Learning and non-residential institutions’ use class, and includes certain D1 uses – namely schools, non-residential education and training centres, museums, public libraries, public halls, exhibition halls, places of worship, and law courts.

Class F.2

This is the new ‘Local community use’ use class and includes:

• Certain A1 uses – namely shops defined as ‘local convenience stores’, i.e. not more than 280 sqm, mostly selling essential goods including food, and at least 1km from another similar shop
• Certain D2 uses – namely halls or meeting places for the principal use of the local community, and indoor/outdoor swimming baths, skating rinks and outdoor sports or recreations not involving motor vehicles or firearms

Sui Generis

The ‘none of the above’ use class is expanding to incorporate former A4, A5 and some D2 uses, including:

• Cinemas, concert halls, bingo halls and dance halls (all formerly D2)
• Pubs or drinking establishments (formerly A4)
• Takeaways (formerly A5)

B2 and B8 uses (industrial, and storage and distribution) and all C-class uses (residential uses, hotels and guest houses) remain unaffected.

Analysis

In many ways this is a welcome change, the Use Classes Order has not been substantially changed since its introduction in 1987 and has been struggling for a while now to make sense of our high streets. For example, what use class are yoga studios that are also juice bars and co-working offices, or bars/restaurants where you can play augmented-reality darts? Even your standard out-of-town superstore has been offering in-store cafes, barbers, banking services and staff offices for decades.

And so, rolling all of these uses and others into a general ‘class E’ allows business owners to convert from one to the other without requiring planning permission, because it is no longer classed as development. This offers much greater flexibility for building owners and could serve to support the high street into the 21^st Century, whilst also protecting community shops and pubs.

But of course, there are risks. Local authorities have cautioned against the erosion of active frontages from high streets, which could leave retail premises which rely on window shoppers isolated in a sea of gyms (or ‘indoor sport, recreation or fitness centres’). Whilst the A-class distinctions no longer make sense, it could be argued that the active ground floor uses encouraged by ‘primary shopping area’ designations in many local plans are still important in driving footfall and capturing the benefits of co-location. The changes are likely to have far-reaching implications for plan-making.

In addition, there will be nerves about the regulatory implications. Whilst planning departments will no longer be clogged with minor change of use applications, it remains the case that a dentist and, say, a restaurant are two very different uses with different impacts on their surroundings and manifestly different service offerings for residents. Conversion from one to the other will not now be subject to any oversight from either the local authorities or local communities.

The Government has been promising (or threatening) some radical changes to the planning system for some time now, and there remains more to come in the coming days with the long-anticipated planning policy paper. Whilst the permitted development rights unveiled this week potentially add yet another murky layer to the complex General Permitted Development Order, with uptake likely to be limited, the reforms of the use class system suggest that the Government still has an appetite for some bold thinking. As the country tries to get back on its feet after COVID-19, as well as address a chronic shortage of housing and the ongoing problems facing high streets, we await the promised planning policy paper.