News Type: Legislation Update

Changes to the Use Classes Order come into force

Today, new regulations come into force which significantly streamline the use classes order.

Use classes A1, A2, A3, B1 (a, b and c) and certain uses within classes D1 and D2 are now subsumed into the newly created Class E. As a result, commercial units operating under these existing uses are now able to switch flexibly between a wide range of town centre uses without applying for planning permission.

There are detailed provisions which provide clarity on how and when the changes take effect within the transitional period, namely:

– From today, all buildings and land operating under the above use classes transfer to the new Class E. Changing to another use within Class E is now possible without planning permission;

– Buildings/land not currently operated under their permitted use must be brought into that use prior to changing use within Class E;

– From today until 31 July 2021, change of use PD rights described in the GPDO will be applied based on the existing use classes, as they existed on 31 August 2020. New PD rights are to be introduced from 1 August 2021;

– Applications for planning permission, permission in principle or approval of reserved matters under an outline application, submitted before 1 September 2020 and referring to the existing use classes, must be determined using the existing use classes;

– Planning Practice Guidance has been updated to reflect the new changes as they come into effect today.

We look forward to working with clients to use the new use classes and to seeing how these changes will reinvigorate the high street. If you have a building that requires a change of use and are unsure where it fits into the new system, please get in touch with the Firstplan team.

‘Planning for the Future’ & ‘Changes to the Current Planning System’ consultations

This week, the Government published its much-anticipated White Paper ‘Planning for the Future’, setting out for consultation its vision of a radically reworked planning system which seeks to, in the words of Robert Jenrick, deliver a ‘significantly simpler, faster and more predictable system’; one which is more ‘efficient, effective and equitable’. At first glance, the proposals look both ambitious and radical – in his introduction to the White Paper, the Prime Minister describes the proposals as ‘radical reform unlike anything we have seen since the Second World War’ – although it is important to note that the fundamental aspects of the planning system will remain in place.

What is proposed to change? 

The White Paper proposes significant changes to both the plan-making and decision-taking processes. In addition, there are a range of proposals which seek to bring planning into the digital age – embracing technology and encouraging greater participation. Measures are also set out to also encourage SMEs and self-build, and for all new homes to be carbon neutral by 2050.

Proposed changes to plan-making

The biggest change to the planning system set out in the White Paper is the proposed move towards a ‘zonal’ planning system, with land allocated as one of three zones:

– Growth areas, which will be suitable for “substantial development” (a term which the Government will define) – this will be land suitable for “comprehensive development” which could include new settlements, urban extensions, regeneration sites or business clusters.

– Renewal areas, which will be “suitable for development” – this will cover existing built areas where smaller development is appropriate, such as existing residential areas, town centres, rural areas (where these are not ‘Growth’ or ‘Protected’ areas) and infill sites in villages.

– Protected areas, which includes sites warranting more stringent development controls, such as Green Belt, Conservation Areas and AONBs, as well as areas of countryside outside of defined Growth or Renewal Areas.

Within Growth and Renewal Areas, suitable development uses will be defined by a Local Plan, as will restrictions on matters such as height and density. Local Plans can also define sub-areas within the broader Growth and Renewal Areas, for example town centres, or areas for higher-density residential development.

Other changes to plan-making proposed in the White Paper include:

– Local Plans are to be shorter, prepared in 30 months and to be reduced in scope, with ‘generic’ development management policies set out in a revised NPPF, leaving Local Plans to focus on setting area-specific development standards. Local Plans will need to identify areas to meet development needs for a minimum period of ten years.

– The ‘soundness’ tests will be removed and replaced by a statutory ‘sustainable development’ test. As part of this, the Duty to Co-Operate test will be abolished, and Sustainability Appraisals will be abolished and replaced with a simplified process of assessing environmental impact (no further details are provided on this; a detailed consultation is expected in the Autumn).

– A standard method of establishing housing requirements will be established, set at the national level.

– Neighbourhood Plans will be retained, with support for communities to make better use of digital tools.

Proposed changes to decision-taking

The White Paper seeks to implement a ‘streamlined development management process’. In ‘Growth’ areas, outline planning permission would automatically be granted for the principle of development, meaning that only detailed planning permission would need to be secured, potentially through a revised reserved matters process, a Local Development Order, or a Development Consent Order in the case of exceptionally large sites. In ‘Renewal’ areas, there would be a presumption in favour of development, and for pre-specified forms of development, an ‘automatic consent’ if the scheme meets prior approval requirements.

Other proposed changes to decision-taking include:

– Faster and more certain decision-making, with the 8 and 13-week determination periods becoming ‘firm deadlines’, and incentives to ensure that local planning authorities determine all applications within these.

– A streamlined approach to developer contributions, replacing Section 106 and CIL with a nationally-set ‘Infrastructure Levy’, to be charged on the final value of the development and levied at the point of occupation. The Infrastructure Levy could also be extended to include changes of use which take place under permitted development, and as a mechanism for affordable housing – although there is little detail on how this will be achieved.

– The relationship between planning committees and decision-taking under the new system is not made clear.

A strong emphasis on design

The White Paper aspires for the ‘simplified’ planning system to enable ‘the creation of beautiful places that will stand the test of time’, protect and enhance the environment, and help to combat climate change. This will be achieved by preparation of local design codes, developed in consultation with local communities, and a ‘fast track for beauty’, where proposals which comply with ‘pre-established principles of what good design looks like’ should be expedited through the planning process.

A 21st Century planning system

Much is made of the need for the planning system to embrace digital technology, both to improve efficiency and levels of local democratic participation. This could include:

– Local Plans to be visual and map-based, standardised and based on the latest technology, including web-based, colour coded maps clearly identifying ‘Growth’, ‘Renewal’ and ‘Protected’ areas, and suitable development uses within each.

– Development management policies which can be integrated with digital services, enabling digital tech to ‘screen’ developments to identify a whether a development is policy compliant.

– New digital engagement processes to enhance civic engagement, and support to local authorities and Neighbourhood Plans to deliver this;

– Greater digitisation of the planning application process, including shorter and more standardised planning applications, and standardisation of technical supporting information; and

– National planning application registers

The proposals set out in the White Paper are broad in scope, and amount to a substantial reframing of the planning system, albeit one which keeps the twin strands of Local Plans and development management at its heart. The proposals are open for consultation until 11.45pm on 29th October 2020, with consultation documents available here.

‘Changes to the Current Planning System’ consultation

Separately published for consultation at the same time as ‘Planning for the Future’ is a further document ‘Changes to the Current Planning System’ which sets out proposed short-term changes to improve the effectiveness of the current planning system. The four changes proposed are:

– changes to the standard method for assessing local housing need;

– securing of ‘First Homes’, sold at a discount to market price for first time buyers, including key workers, through developer contributions in the short term until the transition to a new planning system. The Government intends that a minimum of 25% of all affordable housing units secured through developer contributions should be First Homes; this will be a national threshold, set out in planning policy.

– temporarily lifting the small sites threshold below which developers do not need to contribute to affordable housing, from the current threshold of up to 10 units, to up to 40 or 50 units, for an initial period of 18 months; and

– extending the current ‘Permission in Principle’ to major development, providing landowners and developers with a faster route to securing the principle of development for housing sites.

– The consultation documents can be viewed here. It should be noted that the consultation period for this consultation is shorter than the main ‘Planning for the Future’ proposals, with consultation on these proposed changes closing at 11.45pm on 1st October 2020.

Next Steps

There is a lot to digest in the proposals, and it is clear that more detail will be needed on many of the changes proposed, which we expect to be published in the autumn. The Firstplan team are happy to discuss any questions you may have on the proposed changes, and our website and LinkedIn pages will be updated with further comment and analysis as the proposals progress.

New PD rights for homeowners to build upwards

New legislation laid in Parliament yesterday includes the introduction of the Class AA permitted development right which provides for the ‘enlargement of a dwellinghouse by construction of additional storeys’, to take effect from 31st August 2020. With prior approval from the Local Planning Authority, homeowners will soon be able to add immediately above the topmost storey: a) up to two additional storeys on pre-existing dwellinghouses of two or more storeys; and b) one additional storey on existing dwellinghouses comprising one storey. Existing accommodation in the roof space, including a loft extension, is not deemed a storey for the purpose of this right. The legislation, applying equally to detached, semi-detached and terraced houses, stipulates that the additional storeys are to be of a similar appearance in terms of exterior materials and that the development must not feature a window in any wall or roof slope forming a side elevation. Further, the roof pitch of the main part of the dwellinghouse post construction must be equal to the roof pitch of the existing dwellinghouse.

The new PD right is subject to several limitations and conditions, prohibited namely to: dwellings created via changes of use; dwellinghouses situated within a National Park, AONB, Conservation Area or SSSI; and, dwellinghouses constructed before 1st July 1948 or after 28th October 2018. Indeed, dwellinghouses already enlarged by the construction of one or more storeys are not applicable. Various constraints relate to the height of the proposed roof and the floor to ceiling height of any additional storey. Within the prior approval application, due consideration must be attributed, principally, to amenity including overlooking, privacy and loss of light and the external appearance of both the principal elevation and any side elevations that front a highway.

The legislation can be assessed here:

https://www.legislation.gov.uk/uksi/2020/755/article/3/made 

New demolition and rebuild PD rights for unused buildings

With prior approval from the Local Planning Authority, Class ZA permitted development rights will soon enable the demolition of either: a single purpose-built detached block of flats; or any other single detached building falling within use classes B1(a), B1(b) or B1(c). In either case, the existing building must not exceed 1,000 square metres in footprint, and must have been vacant for a period of 6 months prior to the application for prior approval. In replacement of the demolished building, the PD rights will permit the construction of either: a purpose-built detached block of flats; or a single purpose-built detached dwellinghouse. Class ZA also covers operations ‘reasonably necessary’ for the proposed demolition and replacement construction. These include works to remove and reinstate access, egress, plant and services.

As with all new permitted development rights, there is a comprehensive list of criteria to which the existing site and building must adhere in order to benefit from Class ZA. In particular, the building must have been in existence on 12 March 2020 and have been constructed on or before 31 December 1989. The rights also do not apply to buildings in protected areas such as conservation areas, AONBs, National Parks and SSSIs. On sites which do meet the criteria, developers will be able to construct new buildings with two additional storeys above the number of storeys of the existing building, so long as the new building does not exceed the footprint of the one it replaces.

A full copy of the regulations, which come into force on 31 August 2020, can be found here:

https://www.legislation.gov.uk/uksi/2020/756/pdfs/uksi_20200756_en.pdf

 

Use Classes Order – shake up for ‘town centre’ uses

The Government laid new laws in Parliament today (21 July) to ‘extend homes upwards and revitalise town centres’.  Whilst it is the introduction of new permitted development rights to demolish and rebuild unused buildings as homes and allow homeowners to add new floors to their homes that have made today’s headlines, it is the changes to the Planning Use Classes Order that are perhaps the most radical amendments.

Coming into force on 1st September 2020, the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (2020 No. 757) will significantly shake up the Use Classes Order.  In short, the regulations seek to ‘amend and simplify’ the system of use classes in England by creating a new broad Class E. ‘Commercial, Business and Service’ use class which incorporates:

– Retail (previously A1)
– Restaurant (previously A3)
– Financial and professional services (previously A2)
– Offices (previously B1)

Along with other uses previously in Class D1 & D2 and other uses which are ‘suitable for a town centre area’ including:

-Indoors sport, recreation and fitness facilities
– Medical and health facilities
– Creches and day nurseries
– Research and development facilities
– Light industrial uses

The Explanatory Memorandum states that:

‘This new class allows for a mix of uses to reflect changing retail and business models. It therefore, recognises that a building may be in a number of uses concurrently or that a building may be used for different uses at different times of the day. Changes to another use, or mix of uses, within this class do not require planning permission. Bringing these uses together and allowing movement between them will give businesses greater freedom to adapt to changing circumstances and to respond more quickly to the needs of their communities’.

A series of more protected ‘community uses’ have been moved into a new Class F. ‘Local Community and Learning’ use class. Class F.1 includes schools, galleries, museums, halls, libraries and places of worship. Class F.2 includes essential isolated shops, community halls, outdoor sports facilities and swimming pools/skating rinks.

The residential (C classes), General industrial (B2) and Storage and distribution (B8) use classes remain unchanged (except for a new cross reference in B2 to the new ‘commercial’ class).

The former A4 Drinking establishments and A5 Hot food takeaway use classes have been removed and will be considered ‘Sui Generis’ uses as will cinemas, concert, dance and bingo halls which fell within the former D2 use class. This will mean that changes to and from these uses will be subject to full local consideration through the planning application process.

Importantly, the new regulations include transitional provisions.  Paragraph 7.10 of the Explanatory Memorandum explains that:

‘There are a number of permitted development rights which grant general planning permission allowing changes of use between the former use classes without the need to submit a planning application. These regulations provide transitional provisions which retain the effect of the permitted development right based on the classes that were in place prior to these regulations coming into force. A building or use will continue to be subject to any permitted development rights that it was entitled to on or before 31 August 2020. These transitional provisions will remain in place until 31 July 2021 when new, revised permitted development rights will be introduced. These savings provisions also apply to relevant Article 4 Directions’.

Unfortunately, there are no current plans to consolidate the Use Classes legislation so these new regulations will sit alongside the various other amendments made to the 1987 Order.

The potential implications of these changes will take some time to understand and could be far reaching. They will come as good news for many businesses and landowners by providing greater flexibility for buildings to be repurposed and adapt to changing market trends. Should you have any questions please don’t hesitate to contact a member of the Firstplan team.

See our summary of the new Class E. use class here:

Firstplan Summary of Class E – July 2020[1]

Adequate Natural light now a consideration in residential prior approval applications

Legislative changes are being made to the General Permitted Development Order through the Coronavirus Bill 2020 (25 June 2020) from 1st August 2020 in response to concerns raised about the quality of homes delivered in some developments under existing permitted development rights for changes of use to housing.

The Government states that the measures introduced will improve the quality of new homes being delivered under permitted development rights by requiring that ‘adequate natural light’ is provided in all habitable rooms.

The Amendment Regulations introduce a new matter for prior approval consideration in respect of the provision of adequate natural light in all habitable rooms. This requirement will apply to developments to be delivered by Class M, N, O, PA and Q in Part 3 of Schedule 2 the General Permitted Development Order. These classes allow the change of use to dwellinghouses from:

– Class M: Retail shops (A1), Hot Food Takeaways (A5), financial and professional services (A2), a betting office or pay day loan shop;
– Class N: Specified sui generis uses (amusement arcade, centre or casino);
– Class O: Offices (B1a);
– Class PA: Light Industrial (B1c);
– Class Q: Agricultural buildings.

The new test will require the submission of detailed floor plans indicating the dimensions and proposed use of each room, the position and dimensions of windows, doors and walls, and the elevations of the homes. This is to enable the local planning authority to consider the provision of adequate natural light. Local planning authorities are expected to exercise their planning judgement when considering the detailed floor plans in their assessment of adequate light in habitable rooms. The provision allows local planning authorities to refuse prior approval applications where inadequate natural light is provided.

Habitable Rooms are defined as “any rooms used or intended to be used for sleeping or living which are not solely used for cooking purposes, but does not include bath or toilet facilities, service rooms, corridors, laundry rooms, hallways or utility rooms”.

The Government’s explanatory note further confirms that applications for prior approval submitted before 1st August 2020 will be determined in accordance with the right as in force at that time. This further states that those with a prior approval event (as defined in the Amendment Regulations) before 1st August 2020 may continue to rely on the permitted development right as though the amendments made by the Amendment Regulations had not been made.

Whilst the amendments are widely supported as they seek to ensure any new dwellinghouses are provided with windows and adequate natural light, there is less certainty in terms of how local planning authorities are expected to exercise their planning judgement based solely on the submission of planning drawings. No guidance is provided that quantifies what comprises ‘adequate natural light’ and it may transpire that local planning authorities will resort to requiring the submission of a daylight assessment in accordance with BRE guidelines despite this not being required by the amended legislation.

As with the other considerations of any prior approval, it is likely that the decision for any applicant will need to be made on a site-by-site basis depending on the merits of any individual scheme and/or the approach of each local planning authority, which will become clearer with time.

For more advice about this amendment or the permitted development provisions, please feel free to contact a member of the Firstplan team

Draft guidance on the ‘CIL Coronavirus Regulations’ issued

The government has set out the draft Community Infrastructure Levy (Coronavirus) (Amendment) (England) Regulations 2020 which will give authorities more discretion to defer CIL payments for small and medium sized developers without having to impose additional costs on them. In addition to this, the regulations will give authorities the ability to disapply late payment interest and surcharge payments; and to credit interest already charged to developers.

The regulatory changes and this guidance apply to England only, although this yet to be formally adopted.

This guidance will come into effect when the regulations come into force and will remain in place until 31 July 2021, as the measures only apply to CIL payments that are payable on or after the date the instrument comes into force until 31 July.

In order to qualify for a CIL payment deferral, a developer will need to:

  • – have an annual turnover not exceeding £45 million;
  • – have been served with a CIL payment demand notice;
  • – be required to make that payment between the date that the regulations are first implemented and 31st July 2021; and
  • – be experiencing some form of financial difficulties as a result of the effects of coronavirus that have impacted their ability to make the CIL payment on time.

The collecting authority can request whatever information from the developer they reasonably need to consider the deferral request.

The developer should make a deferral request to the collecting authority, in writing, no more than 14 days before, or as soon as practicable after the date the CIL payment is due. If the information requested is not provided within the specified time, the collecting authority can refuse to grant a deferral request.

The authority has a maximum of 40 days to consider the application and notify the applicant of its decision to allow or refuse the payment deferral, in writing. This period starts from the day that the collecting authority receives the request for a payment deferral.

Late payment interest and surcharges cannot be charged while the collecting authority is considering a deferral request.

Should the request be granted, it can only be for a maximum period of 6 months from the date that the request was received. The authority must serve a revised demand notice which outlines the amount of CIL payable and the revised date in which the payment is due (including any late payment interest and surcharges accrued before the deferral request).

Where a payment deferral has been refused, the authority should notify the applicant as soon as practicable, and no later than 40 days after receipt of the request. The applicant must then comply with the original demand notice served before the deferral request was made; or a revised demand notice which was served after the deferral request was made but which is not related to that deferral request. Payment must be made within 7 days to avoid late payment interest.

If a deferred CIL payment becomes due during the ‘material period’ the applicant can apply for a further deferral for the same chargeable development.

The collecting authority must charge late payment interest that has accrued in the period between the start of lock (21 March 2020) and the point in which the new regulations come into force. The applicant may request that the authority credits this interest payment against the CIL amount due under the revised demand notice, known as an “interest request”. Any late payment interest that has built up before 21 March 2020 cannot be credited against CIL amount due. If the collecting authority does not consider the request appropriate and refuses it, the applicant will be liable to pay the outstanding interest in accordance with existing CIL Regulations 2010 (as amended).

Further information can be found using the following link: https://www.gov.uk/guidance/coronavirus-covid-19-community-infrastructure-levy-guidance#draft-guidance-on-the-community-infrastructure-levy-coronavirus-amendment-england-regulations-2020

 

New PD rights for additional storeys on detached blocks of flats coming into force 1 August 2020

The Government is looking to shake up the planning system and ‘build, build, build’.  A key change coming into force on 1 August 2020 is to create a new class of permitted development rights to make it possible to build up to two additional storeys to provide additional flats on top of purpose-built, detached blocks of flats without requiring full planning permission.

The new permitted development rights associated with these extensions include any reasonable engineering operations, access/egress (including external fire-safety routes) and storage and waste facilities.

However, the new rights are perhaps not quite so simple as they first appear and only apply in fairly limited circumstances. For instance, they only apply to purpose built detached blocks of flats constructed between 1 July 1948 and 5 March 2018 (so not conversions) and the extension must be on the principle part of the building.  The existing building must be at least three storeys high already, however the new extension must not result in the building being over 30 metres in height (excluding plant).  The rights do not apply to buildings in protected areas such as conservation areas, AONBs, National Parks and SSSIs.  The land must also not be within 3 kilometres of the perimeter of an aerodrome.

A full copy of the regulations can be found here:

http://www.legislation.gov.uk/uksi/2020/632/regulation/22/made

The effect of the permitted development rights means that full planning permission is not required.  However, prior approval must still be sought in relation to:

  • – transport and highways impacts
  • – air traffic and defence asset impacts
  • – contamination risk
  • – flood risk
  • – the external appearance of the building
  • – the provision of adequate natural light for new habitable rooms
  • – impact on amenity of the existing building and neighbouring premises, including overlooking, privacy and loss of light
  • – whether it will impact on a protected view

In considering the above matters the local planning authority can have regard to the National Planning Policy Framework.

Even though there are a lot of restrictions we are still hopeful that many of our clients will be able to use these rights to their advantage.  The devil is in the detail so if you think you have a property which might qualify for these rights then please get in touch with us and we would be happy to advise further.

Relaxation of planning rules for pubs & restaurants

The government has announced planning rules will be relaxed so pubs and restaurants can operate as hot foot takeaways during the coronavirus outbreak.  Permitted development rights will be introduced through secondary legislation to allow the change of use of a pub (A4) and a restaurant (A3) to a hot-food take away for a temporary period of up to 12 months.  More details can be found here.

A Written Ministerial Statement (WMS) was also published last week relaxing delivery restrictions to supermarkets, food retailers and distribution centres in response to the coronavirus. The WMS only covers England and will be withdrawn ‘once the immediate urgency has subsided’.  The WMS can be found here.

For more advice about these temporary relaxations, please feel free to contact a member of the Firstplan team.

Onwards and upwards?

It has been a busy week of announcements for Housing Secretary, Robert Jenrick.  Mr Jenrick hit the headlines by announcing that families will be able to add two storeys to their homes without planning permission ‘so your home can grow as your family does too’.   The government has been pursuing proposals to extend permitted development (PD) rights to allow additional housing above existing buildings for some time now, but previous consultation had focused on high street and town centre buildings.  The idea of widening PD rights further to also allow detached suburban properties to build upwards is inevitably proving more controversial. At this stage, the MHCLG has not published any detail confirming how the PD rights would work in practice and it will be interesting to see if these proposals are indeed taken forward.

Mr Jenrick also announced the publication of the National Design Guide which ‘sets out the characteristics of well-designed places and demonstrates what good design means in practice’ as well as a new green standard for all new build homes in an ambitious effort to cut carbon emissions by committing to removing traditional fossil fuels heating systems from 2025.

As is now a somewhat familiar pattern for an incoming Housing Secretary, Mr Jenrick has vowed to reform the planning system in an attempt to deliver more homes.  Taking to Twitter, he said ‘Change is coming to #planning. #planningrevolution’.  The accelerated planning green paper is to be published next month (Nov 2019) and will include a package of measures to try and speed up the ‘complicated and outdated planning system’ including:

– reducing planning conditions by a third;

– a review of application fees to ensure council planning departments are properly resourced;

– potential for more fees to be refunded if councils take too long to decide on specific planning applications;

– the introduction of a new tiered planning system; and

– consultation on demolishing old commercial buildings for new housing.

Whilst we of course welcome any efforts to remove unnecessary bureaucracy and delays in the planning system, previous attempts at reform have shown just how difficult it is to speed up the system without compromising the quality of decision making.  The accelerated planning green paper will hopefully shed more light on the latest wave of reforms and we wait to see if this really will be a #planningrevolution!