Permitted Development Rights for Temporary Structures

Further to the announcement one month prior, the Ministry for Housing, Communities and Local Government (MHCLG) has now cemented the flexibility on moveable structures with secondary legislation in England.

New Class BB “moveable structures for specified uses” enables the temporary provision of any moveable structure without planning permission within the curtilage, and for the purposes, of:

• A building operated under article 3(6)(p) such as a pub, wine bar or drinking establishment or (q) drinking establishment with expanded food provision;
• A building operated under Class E (b) for the sale of food and drink mostly undertaken on the premises; or
• Within a historic visitor attraction which is defined as a listed building accessible to the public for enjoyment and educational purposes.

The statutory instrument, laid before Parliament on 15th April, came into force the consecutive day on 16th April and is effective in England only until 1st January 2022.

In a letter dated 15th April, Robert Jenrick MP (Secretary of State for MHCLG) set out that to support businesses to open safely: “the government legislated to enable them to set up outdoor shelters and marquees without planning permissions”.

Guidance has also been published for how these structures can be set up safely and what conditions they need to meet to be considered “outdoors”.  For instance – in line with the existing rules for outdoor smoking areas – shelters, marquees and other structures erected by hospitality and other businesses can have a roof but need to have at least half of the area of their walls open at all times whilst in use.

Robert Jenrick has further encouraged local authority leaders to ensure that this guidance is applied proportionately and consistently to support businesses to reopen safely and to avoid overzealous interpretations of the rules.  He further notes that if a disproportionate regulatory approach is taken, it risks driving residents into unregulated activity and premises which may be far less covid-secure and/or illegal.

The Explanatory Memorandum accompanying the new legislation sets out that this measure does not remove the obligation to apply for listed building consent under the Planning (Listed Building and Conservation Area) Act 1990 where the provision of a moveable structure would require such an application.  Therefore, the provision of any moveable structure must not cause the alteration, demolition or extension of a listed building in any manner which would affect its character as a building of special architectural or historic interest.

The rights do not apply within the curtilage of a scheduled monument or if the moveable structure is for the display of an advertisement.  It is further unclear whether the permitted development rights are overruled by existing restrictive planning conditions that could apply to existing restaurants, bars and visitor attractions.

These measures are presented in conjunction with the roadmap for easing lockdown restrictions, first published in February.  This permitted development flexibility is intended as one such way to support the next stage by kickstarting the economy whilst operating within covid guidelines.

Ultimately, the provisions enabled via this latest legislative amendment will no doubt represent an incentive to many businesses across the country in terms enabling sheltered outdoor dining and drinking areas to be rolled out immediately without the traditional costs, time and other implications associated with a planning application.  It will likely be welcomed by hospitality operators big and small.

Should you wish to discuss these new permitted development rights, please don’t hesitate to contact a member of the Firstplan team.