Are the recent changes to Permitted Development rights welcome?

Since the original Town and Country Planning (General Permitted Development) Order 1995 first came into force and its replacement by the 2015 Order (GPDO), the scope of permitted development (PD) rights has constantly been evolving. This article sets out the latest key changes and the divergence in views on the effectiveness of the Order which has led to the Town and County Planning Association (TCPA) publishing a draft Healthy Homes Bill.

What are the recent changes?

The response of the Ministry of Housing, Communities and Local Government to the consultation on 'Supporting the high street and increasing the delivery of new homes' which ran from October 2018, was published on 3 May 2019. The Town and Country Planning (Permitted Development, Advertisement and Compensation Amendments) (England) Regulations 2019 (2019 Regulations) were also laid on the same date and came into force on 25 May 2019.

The key changes in the 2019 Regulations are:

• Permitting the permanent change of use of shops (A1), financial and professional services (A2), hot food takeaways (A5), betting shops, pay day loan shops and launderettes to offices (B1). This is subject to a 500 m² limit and prior approval from the local authority of planning impacts, including the sustainability of the existing shopping area.
• Permitting the permanent change of use of hot food takeaways (A5) to residential (C3). This is subject to a 150m² limit.
• Extending the time period from 2 to 3 years for the temporary change of use of a number of community Class D1 uses, including medical or health services, art galleries, museums, public libraries or reading rooms and public halls or exhibition halls. This is to allow businesses and community organisations sufficient time to test the market.

Are there any proposed changes to the Use Classes Order which underpin the GPDO?

Changes of use permitted under the GPDO are drafted with reference to classes in the Use Classes Order 1987 (as amended). In summary: class A covers shops and other retail premises such as restaurants and bank branches; Class B covers offices, workshops, factories and warehouses; Class C covers residential uses; and Class D covers non-residential institutions and assembly and leisure uses.

The government is intending to introduce changes to Class A to ensure it encapsulates existing and prospective retail models, by either expanding Class A1 or merging Classes A1, A2 and A3. This is likely to be subject to exceptions as there are concerns that changes would enable change to restaurant use without local consideration of potential impacts such as increased noise and odours and longer opening hours.

Are any of the consultation proposals not taken forward in the new Regulations?

Yes. It is interesting to note that a number of the changes which the government consulted upon have not been included in the 2019 Regulations. The most significant of these are:

• The proposal to permit upwards extensions to deliver new homes using airspace above existing buildings. The government has confirmed its intention to re-consult on this to further consider the technical details of using existing buildings in commercial and residential use to deliver additional homes. Concerns were raised in relation to quality, access and safety of existing occupiers and neighbours.
• The government has also committed to re-consult on a permitted development right to allow commercial buildings to be demolished and replaced with homes.
• The decision not to extend the temporary PD right which allows the change from storage and distribution (B8) to residential (C3). If a prior approval has been secured on or before 10 June 2019, the change of use must be completed within 3 years of the date of the prior approval, but no further applications for prior approval will be considered after that.

The common theme amongst the changes which government are not taking forward at present is the use of PD rights to bring about more major changes to existing buildings to allow for new housing. There is a strong view that the delivery of housing should be purely plan-led so it is subject to scrutiny over design and place making. However, contrast this against boosting the provision of housing to address the ongoing national shortage. For example, between March 2015 and March 2018, office to residential conversions provided 42,000 additional homes.

Should there be a ‘homes standard’?

The TCPA published the Healthy Homes Bill on 2 May 2019, which will now be subject to the parliamentary approval procedure. The Bill follows a study undertaken by the TCPA on the standard of homes provided through PD conversions, which raised concerns about properties being developed with single windows, below national space standards and with no access to amenity areas.

As a result, the Bill sets out ten principles, which the TCPA propose should form the starting point for any new housing schemes. These are, in brief that all homes must:

1. be safe in relation to fire risk
2. have adequate liveable space
3. be accessible and in a safe environment
4. have walkable access to green and play space
5. secure reductions in carbon emissions
6. be resilient to the changing climate
7. be secure and meet designing out crime standards
8. prevent unacceptable noise pollution
9. have main living areas and bedrooms which have access to natural light
10. if they are part of a major development, be within walkable neighbourhoods.

At this early stage, it is difficult to predict if the Healthy Homes Bill will gain traction with ministers. The Bill does, however, address concerns identified in the Raynsford Review, published in November 2018, about how the planning system incorporates adequate housing standards.

A July 2019 appeal decision relating to a decision made by Watford Borough Council provides an example of the type of housing that the Healthy Homes Bill will seek to restrict. In the decision, the Inspector granted approval for the conversion of a building from light industrial use (class B1(c)) to residential use (class C) despite the fact that the proposed residential units were small and had no windows. The Council had refused prior approval on the basis that the units would result in oppressive and cramped living environments. The Inspector acknowledged that living in such units would not be a “positive living environment” but was required to “solely address the impact of the proposed development” pursuant to the provisions of the GDPO.

PD rights have evolved over recent years in response to the changing high street and to address the housing shortage and there are ongoing proposals to consult on further modifications. However, there is a growing concern about the adequacy of the design of conversions and it remains to be seen how this will be addressed in the consenting process going forward. Watch this space for updates on the Healthy Homes Bill and changes to the Use Classes Order.

For advice or further information on permitted development, please contact Gary Soloman or Sarah Sutherland.