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Build, Build, Build, upwards and out of Covid-19

In Brief

New permitted development rights (PDR) come into force on 1 August 2020 permitting upwards extensions of up to two additional storeys on purpose built, detached, blocks of flats. The PDR are subject to the prior approval procedure and Local Planning Authorities may consider a range of matters, including the requirement for the provision of adequate natural light in all habitable rooms.

Background

The idea for upwards extensions to be allowed under PDR was first raised in 2016 and the Government consulted on introducing PDR to extend upwards between October 2018 and January 2019. However the long-awaited PDR have been introduced as part of a package of measures to stimulate the economy as part of the response to Covid-19. MHCLG forecasts that 8,000 new homes will be built in England over ten years under the PDR.

More than half of those who responded to the consultation did not consider that upwards extensions should be delivered through PDR.  Concerns were raised that communities and Local Planning Authorities would have no say over how and where a PDR might be applied; the quality of homes delivered by building up; how access and safety would be addressed; and the impact on the existing occupiers and neighbours of the premises being extended. There was also concern from the telecommunications industry that they might have to move their kit or there would be an increase in the value of rooftops, increasing the cost of future mobile infrastructure.

Support for a PDR recognised that increasing density may relieve pressure for additional housing sites, allow for additional homes to be created by transport hubs and in town centres, and reduce the need for development in the green belt. There were also suggestions that local development orders may be a more suitable approach to achieve well designed upwards extensions in appropriate locations.

In its response to the consultation, the Government restated its intention to bring forward PDR but said that it wanted  those rights to respect the design of the existing streetscape, while ensuring the amenity of existing neighbours is considered. 

Following that consultation, in his written statement of 13 March 2019 the former Secretary of State for Ministry of Housing, Communities and Local Government, James Brokenshire, said:

‘We will take forward a permitted development right to extend upwards certain existing buildings in commercial and residential use to deliver additional homes, engaging with interested parties on design and technical details. We would want any right to deliver new homes to respect the design of the existing streetscape, while ensuring that the amenity of neighbours is considered.’

New Part 20 Rights – what do they allow?

The Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020 create new rights to allow the construction of up to two additional storeys of new dwellinghouses (in this context meaning flats) on the top of purpose built, detached blocks of flats. The new PDR also allows for various works reasonably necessary to construct the additional storeys and new flats, replacement of plant or installation of new plan on the roof, construction of access and egress (including fire escapes) and works for storage, waste or other ancillary facilities reasonably necessary to support the new flats.  These works are further controlled by the limitations in Part A.1.

Limitations and Conditions

The PDR do not apply to the usual exceptions, categories of land which fall within Article 2(3) (conservation areas, Areas of Outstanding Natural Beauty, National Parks, the Broads and World Heritage Sites), sites of special scientific interest, listed buildings, schedule monuments, safety hazard areas, military explosives storage area or land within 3km of the perimeter of an aerodrome. 

As with any PDR there are strict limitations. The main limitations are:

  • The PDR are not available for any conversions to residential use granted under existing PDR (Classes N, M, O, P, PA and Q of Part 3 of Sch 2);
  • The existing building must have three or more above-ground storeys;
  • The building must not have been constructed before 1 July 1948 or after 5 March 2018;
  • The additional storeys must be constructed on the principal part of the building;
  • Floor to ceiling heights must not exceed three metres or be greater than the existing floor to ceiling heights;
  • The new dwellinghouses must be flats;
  • The overall height of the new building (not including plant) must not be greater than 30 metres; and
  • The ancillary works must be within the curtilage of the existing building.

In addition to the limitations, Part 20 sets out the conditions to which the PDR are subject.  Developers have to go though the familiar prior approval process.  Before commencing the development, the developer must seek prior approval from the Local Planning Authority on a range of matters, which is more extensive than matters which the Local Planning Authority may take into account for office to residential PDR. 

These matters are:

  • transport and highways impacts of the development;
  • air traffic and defence asset impacts of the development;
  • contamination risks in relation to the building;
  • flooding risks in relation to the building;
  • the external appearance of the building;
  • the provision of adequate natural light in all habitable rooms of the new dwellinghouses;
  • impact on the amenity of the existing building and neighbouring premises including overlooking, privacy and the loss of light; and
  • whether because of the siting of the building, the development will impact on a protected view.

As with the other change of use PDR to residential, development must be completed within three years from the date that prior approval is given.  Also, importantly, it is a condition that the developer provides that Local Planning Authority with a report for the management of the construction covering the issues that are usually found in construction management plans secured by condition or planning obligation on the grant of express consent.

Any new flats created under the PDR must remain in use under Class C3 and for no other purpose except to the extent that the other purpose is ancillary to the primary use as a dwellinghouse.

Part B sets out the process for prior approval applications and there is nothing new or remarkable about the process, save for there is no deemed approval.   Local planning authorities may refuse to grant prior approval if the application does not fall within the PDR or the developer provides insufficient information.  They may also grant prior approval unconditionally or subject to conditions reasonably related to the subject matter of the prior approval.

Implementation

If you are still with me (apologies, it is difficult to summarise briefly PDR) how are these new rights likely to be received and implemented? 

As with any PDR which create new residential properties, there is the inevitable tension between boosting the supply of new homes and ensuring that new homes are in the right place, of the right quality and size, minimising the impact on affected neighbours and the street scene and that these new homes contribute to cost of infrastructure.

Local Planning Authorities are given a slightly greater degree of control by virtue of the prior approval matters that they may consider but this control falls short of what many Local Planning Authorities and communities would want.   The requirement for the flats to have adequate natural light in all habitable rooms will be welcomed as will the amendment to existing PDR for changes of use to residential to require natural light.

In 2018, the RICS commissioned a study by the UCL Bartlett School of Planning to examine five local authorities with high rates of PDR change of use to residential schemes.  They found that of the site visits to 568 buildings there was an inconsistency in the quality of developments, with only 30% of units delivered through PDR meeting national space standards.  While examples of extremely high-quality housing conversions had been found, there were also examples that had no amenity space, low quality design and were poor locations for residential amenity.  The research also indicated that office-to-residential PDR conversions had produced a higher number of poor quality housing, than those governed through full planning permission.  The research also found an impact on local publicly-funded infrastructure because the developments were not making contributions under Section 106, there was a loss of planning fees and a significant loss of affordable housing.

On 12 March 2020, Robert Booth wrote in the Guardian that ‘The shadows are about to lengthen across suburbia.’   Hardly a ringing endorsement. 

On 26 June 2020 the Regulatory Policy Committee published its assessment of the Impact Assessment supporting the PDR.  The Committee criticised the Impact Assessment for a range of failings.

I suspect that supporters of the new PDR will point to a number of benefits that these developments can provide:

  • Lower cost of construction particularly with the use of modular building solutions by leading providers such as Apex Airspace;
  • Building on existing blocks to increase densities will take some of the pressure off Local Planning Authorities having to release Green Belt for housing and other green field sites;
  • Construction should take less time to complete and the use of modular housing could reduce the impacts of construction on existing residents; and
  • The requirement that all new flats are to have adequate natural light is an improvement on existing PDR.

The extent to which Local Planning Authorities will seek to restrict the use of the new PDR through the matters that they can consider as part of the prior approval process or the making of Article 4 Directions will not be known for some while but I think will vary considerably between Local Planning Authorities.

Away from planning, we may also see a spike in collective enfranchisement by leaseholders acquiring the freehold of their blocks to prevent any upwards extensions.

For more information on the article above please contact Duncan Moors.

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