News Type: Legislation Update

The Government’s recent response to the consultation on planning reform makes clear that  permitted development (PD) rights will be extended in a bid to support high streets and speed up the delivery of new homes.

Regulations laid before parliament last week will come into effect on 25 May 2019, and will include new rights to change the use of high street shops and takeaways and make permanent existing temporary rights allowing the extension of residential properties.  The government has also confirmed its intension to push ahead with plans to introduce a PD right “to extend upwards certain existing buildings in commercial and residential use to deliver additional homes” despite the idea receiving a mixed response during the consultation exercise.

Key changes to come into force on 25 May 2019

Shops to offices: The regulations introduce a new PD right whichallows shops (A1), financial and professional services (A2), hot food takeaways (A5), betting shops, pay day loan shops and launderettes of up to 500 sqm to change to office use (B1). Prior approval is required which allows the local planning authority an opportunity to consider certain planning impacts, including the sustainability of existing shopping areas.

Takeaways to residential use: Existing PD rights allowing the change of use of up to 150 sqm of shops (A1), financial and professional services (A2), betting offices, pay day loan shops and launderettes to residential use (C3) are amended to also allow hot food take-aways (A5) to change to residential use (subject to prior approval).

Flexible uses: Existing PD rights allow a change of use from any Class A1, A2, A3, A5, B1, D1, or D2 use, “betting office”, or “pay day loan shop” to a temporary “flexible use” (i.e. A1, A2, A3, or B1) for a single continuous period of up to 2 years. From 25 May 2019, the new regulations amend these rights so that the temporary “flexible use” also includes specified community uses (exhibition hall, public library, museum, clinic or health centre, or art gallery (other than for sale or hire)), and extends the period of temporary use from two to three years.

Household rear extensions: Existing temporary PD rights allow householders to benefit from a larger extension to their home without the need for a planning application.  The existing rights, introduced in 2013, allow the erection of a larger rear single-storey extension (increased from 3m to 6m for attached houses and from 4m to 8m for detached houses) subject to prior approval, provided the extension was completed by 30 May 2019.  The new regulations remove reference to this completion date, thereby making the right permanent.

Future Changes

Time-limited Permitted Development Right:  In response to concerns expressed over the quality of housing and an economic need to protect storage and distribution premises, the Government has confirmed that the temporary right for changes of use from storage or distribution (B8) to residential (C3) will not be extended nor made permanent.

Upward extensions:  More than half of those who responded to the recent consultation exercise confirmed that they did not support the use of PD rights for upward extensions, with concerns raised over the quality of housing produced and the impact on existing and neighbouring properties. Notwithstanding these objections, the Government has confirmed its intention to bring forward a permitted development to allow upward extensions of existing buildings in commercial and residential use to create new homes.

The expanded PD rights to be brought in on 25 May 2019 may well prove a useful tool for some high street property owners and developers, giving additional flexibility and certainty in challenging times.  Using airspace above existing properties is already encouraged in national policy and the introduction of new PD rights could potentially complement existing policy support but as the Government acknowledges, getting the technical detail right will be key to the success of any future upward extension PD rights.

As with all permitted rights, certain exemptions and conditions apply and Firstplan would be happy to advise on any queries relating to PD rights.

The Mayoral Community Infrastructure Levy 2 (MCIL2) will come into force on 1st April 2019.  The revised charging schedule will supersede the current Mayoral Community Infrastructure Levy (MCIL1) and the associated planning obligations/S106 charge scheme applicable in Central London and part of the Isle of Dogs.   The new charge will raise funds to help support the construction of Crossrail 2.  Whilst Crossrail 2 is still to be formally endorsed by the Government, the Mayor has previously confirmed that should the project not proceed, MCIL2 funds will be used to support alternative strategic infrastructure projects in London.

The current MCIL1 rates for new development range from £20-£50 per sq m depending on which London Borough the development is located in.  The new MCIL2 adopts a similar three band approach for most new development with rates increased to between £25-£80 per sq m.  In addition, the current ‘Crossrail S106’ is replaced by a special increased MCIL2 rates which applies to office, retail and hotel floorspace in Central London and parts of the Isle of Dogs (with new charges of £185 per sq m for office; £165 per sq m for retail and £140 per sq m for hotel).  As is currently the case, certain types of development remain exempt from the levy including developments for medical or education purposes.

Developers should be aware that projects in London approved on or after 1st April 2019 will be liable to pay the new MCIL2 charges, which in many cases will be notable higher than current rates.  The increased charges will also need to be taken into account in assessing the viability of a scheme and may have a knock on effect in terms of its ability to contribute towards local s106 costs including affordable housing.

A link to the new MCIL2 charging schedule can be found here.  If you have any queries about the Mayoral CIL, please feel free to contact one of the Firstplan team.

Over the past few years, the Government has encouraged developers to look at opportunities to build upwards where possible to help deliver new homes whilst protecting valuable open space in inner city areas.  The recently revised National Planning Policy Framework (NPPF) includes specific policy support for the use of airspace above residential and commercial premises for new homes, as does the emerging New London Plan.   As a practice, Firstplan has certainly found this new policy approach useful in supporting planning applications involving upward development.

As part of this week’s Budget, the Government has published a consultation entitled Planning Reform: Supporting the high street and increasing the delivery of new homes.  The consultation seeks to take support for the creation of additional homes above existing building in high streets and town centres one step further through the introduction of a new permitted development right.

The new PD right would be subject to prior approval by the local planning authority and would allow additional storeys to be built above certain buildings, in particular those in commercial or residential (C3) use.  As with many PD rights, it would not apply in Article 2(3) land (including, for example, conservation areas).

Two different approaches are suggested in terms of height limits; either allowing the extension to be no higher than the ‘main roofline’ of the highest building in an existing terrace which would provide a fixed local point against which any proposal could be considered, or, alternatively, permitting upward extensions more widely to a height no higher than the ‘prevailing roof height’ in the locality.  This latter approach would leave much more room for interpretation as it would require the local authority to ‘define what it considered to be the prevailing roofline taking account of the local building types and heights and the extent of the area over which it should be determined’.

In order to protect local amenity, it is proposed that there should be a maximum limit of 5 storeys from ground level for a building once extended. Anything higher would require a planning application.

Separately, purpose built, free standing blocks of flats (C3) over 5 storeys are thought to provide an opportunity to deliver additional new homes through upwards extensions and the government would also like a permitted development right to apply to such buildings.

In our experience, the use of airspace above an existing building can certainly present a good opportunity for development in some instances, and the proposed new PD rights could potentially complement existing policy support.

The government is asking for responses to this consultation to be submitted by 14 January 2019.  If you have any queries regarding the consultation or airspace development more generally, please feel free to contact one of the Firstplan team.

It is generally agreed that pre-commencement conditions can play a useful role in the planning process.  However, developers can often be left frustrated by their inappropriate use which can delay works starting on site and add unnecessary cost.  In response to these concerns, Section 100ZA was inserted into the Town and Country Planning Act 1990 last year to ensure that pre-commencement conditions are ‘only used where they are absolutely necessary and that parties are in agreement before they are imposed’.

The Town & Country Planning (Pre-Commencement Conditions) Regulations 2018, issued last week, set out the circumstances where planning permission may be granted subject to a pre-commencement condition without the written agreement of the applicant to the terms of the condition.  Under the Regulations, if the applicant has been notified of the intention to impose the pre-commencement condition and fails to provide a “substantive response” (a term which is defined in the Regulations) within 10 working days, the pre-commencement condition can be imposed without their agreement.

National Planning Policy Guidance (NPPG) will be updated prior to the new rules coming info force on 1 October 2018.  Alongside the existing statutory requirement for local planning authorities to provide a ‘full reason’ for any conditions imposed on an application, the new rules should help reduce the imposition of unnecessary pre-commencement conditions – and the specified 10 working day response period seems a reasonable time frame to raise concerns without unduly delaying the issue of a permission.

If you have any queries requiring planning conditions, please feel free to contact one of the Firstplan team.

The long anticipated rise in planning application fees will come into force on 17 January 2018.  The Government committed to the 20 percent increase in fees back in January 2017. Local Planning Authorities had hoped to be able to charge the additional fees from July 2017, but have been frustrated by various delays to the required legislation. The amended regulations were finally approved just before Christmas, meaning that LPA’s are now free to go ahead with the increase.

As well as a 20 percent increase for all existing application fees, the new regulations also:

-introduce fees for applications for permission in principle, of £402 per 0.1 of a hectare of the site area;

-allow any Mayoral development corporation, or urban development corporation, to charge for pre-application advice;

-enable fees to be charged where an LPA has withdrawn ‘permitted development rights’ through serving a direction or by a condition imposed on a grant of planning permission; and

-introduce a fee of £96 to be charged by an LPA for an application for their prior approval of certain matters before particular permitted development can proceed.

Importantly, the additional income from these new fees will be ring-fenced and retained by planning departments. So, whilst the new higher fees will mean an unwelcome additional upfront cost for developers, it is hoped that the extra revenue will help provide the resources needed to improve the efficiency and delivery of planning services.

Here is our quick reference guide to what the fee increase will mean for some of the most common types of planning application. Quick reference guide to increased planning fees.

If you have any queries regarding the new fees, please feel free to contact one of the Firstplan team.

New temporary permitted development rights are now in force allowing the change of use of certain Class B1(c) light industrial buildings to Class C3 residential use under Class PA of the General Permitted Development Order (GDPO).

For the next three years, the change of use of light industrial floorspace will not require planning permission and will instead benefit from permitted development rights, subject to a prior approval process.

Importantly, this will only apply to B1(c) buildings under 500sqm gross floorspace and the building must have been in use solely for light industrial purposes on 19 March 2014 (or when last in use if not in use on or since that date).  These restrictions, along with various other exclusions (for example, the building cannot be listed), will limit the number of buildings which qualify for the new PD rights.  But for those buildings which do qualify, the introduction of these new PD rights could potentially open up new development opportunities.

Any proposed change will be subject to Prior Approval. Local Authorities will consider whether prior approval is required having regard to highways impact, contamination risks, flood risks, and whether the change of use of the building to residential would have an adverse impact on the sustainability of the provision of industrial services and/or storage or distribution services in that area.

Despite the inclusion of this fourth test in the prior approval process, some Local Authorities remain cautious about the potential loss of light industrial units, particularly those authorities who have lost notable amounts of office stock as a result of the now permanent office to residential permitted development rights.

Some London Borough are already trying to get ahead of the game and have put in place Article 4 Directions to remove Class PA rights to prevent the loss of light industrial units.  These Directions differ from borough to borough in terms of the date they come into force and/or the areas to which they apply.  For example;

LB Hackney has an Article 4 Direction coming into force on 1 May 2018 to remove the rights across the whole of the Borough;

LB Islington has three Article 4 Directions coming into force on 3 November 2017 to remove Class PA rights in relation to the Vale Royal / Brewery Road Locally Significant Industrial Site, the Central Activities Zone within Islington and other B1(c) locations across the borough;

Royal Borough of Kensington & Chelsea has already removed Class PA rights across various specified areas, as well as individual car repair garages outside these areas;

Southwark Council has announced consultation on an immediate Article 4 Direction removing Class PA rights in specified locations.  Class PA rights have ready been removed in relation to Railway Arches to ensure residential amenity is protected.

This list is not exhaustive and other authorities have Article 4 Directions in place, or are in the process of doing so, including Brent, Waltham Forest, Hounslow, Camden and Hillingdon.  Nor is the list exclusive to London with some authorities outside the Capital removing Class PA rights such as Crawley, Stevenage and St Alban’s.

Time will tell whether these new PD rights will have the Government’s intended effect of materially boosting housing supply by bringing underused light industrial sites into residential use, or indeed whether the Secretary of State will seek to revoke or modify any of the Article 4 Directions being pushed through.

In the meantime, if you would like to discuss any of the above, please feel free to contact one of the Firstplan team.

In a bid to protect the night-time economy, Councils are to gain more powers to assist the protection of pubs through the planning system. The amendments to the Town and Country Planning (General Permitted Development Order), set to come into force on 23 May 2017, will remove permitted development rights which currently allow the demolition and change of use of pubs to other ‘A’ class uses.

A recent audit identified a loss of 1,220 pubs since 2001 in London alone – an average of 81 closures a year. In some Boroughs this has resulted in a loss of over half the number of pubs, which has had a lasting effect on the night time economy and local community.

As a result, the Government put forward amendments to the Neighbourhood Planning Act 2017 to allow changes in legislation to remove the existing permitted development (PD) rights in relation to the conversion of A4 ‘drinking establishments’. This includes all operations involving the change of use to other ‘A’ use classes, demolition, or a change of use to a mixed use with A3. The amended rules will also introduce new ‘Class AA’ permitted development rights which will allow the change of use from ‘drinking establishment’ to ‘drinking establishments with expanded food provision’ and vice versa. Drinking establishments with expanded food provision may not change to a restaurant without applying for planning permission.

The new measures are intended to help ensure that the loss of drinking establishments does not continue at the current rate, with any conversions requiring a full planning application to justify the loss of the unit. Any application will then be assessed against national and local policy requirements.

Some Councils, such as Southwark, have already taken matters into their own hands through the adoption of an Article 4 Direction that removes permitted development rights in relation to Drinking Establishments. Having experienced a substantial loss of pubs in Southwark, the Council considered it necessary to ensure that planning permission is required for the change of use, demolition or alteration to any pub in the Borough. Whilst the Council recognise that pubs will not always be able to remain operational, and redevelopment may offer the best solution for the site, the Article 4 Direction was made in recognition of the unique historical and community significance of pubs and the contribution which they make to local neighbourhoods.

If you would like to discuss what options there are for a specific pub or any of the above, please feel free to contact one of the Firstplan team.

In a bid to increase the amount of housing built on previously developed land, the 2016 Housing and Planning Act included proposals to introduce ‘Permission in Principle’ (PiP) for housing-led developments on certain sites.   New regulations published last week will bring PiP into force this month in respect of some registered brownfield sites.

Which regulations are coming into force?

The Town and Country Planning (Permission in Principle) Order 2017 comes into force on 15 April 2017, with the Town and Country Planning (Brownfield Land Register) Regulations 2017 coming into force on 16 April 2017.

The government intends to publish further guidance to support the introduction of Brownfield Land Registers and PiP by June 2017, but this new secondary legislation sets the legislative framework for their use.

Brownfield Land Registers (BLR)

The Brownfield Land Register regulations require all LPAs to prepare and maintain up-to-date, publically available registers of brownfield sites available for housing locally.  Importantly, LPAs must publish their registers by 31 December 2017.

The new BLR will comprise two parts:

·      Part 1 will list previously developed land with an area of at least 0.25ha, (or land which is capable of supporting at least 5 dwellings) that is ‘suitable’ and ‘available’ for residential development, and where residential development is ‘achievable’. The Regulations define these terms – for example ‘achievable’ means that, in the opinion of the LPA, the development will take place within 15 years.

·      Part 2 will list land which the LPA has decided to allocate for residential development following prescribed publication and consultation procedures.

Entries in the BLR need to specify “the minimum and maximum net number of dwellings, given as a range, which in the authority’s opinion, the land is capable of supporting” and “where the development includes non-housing development, the scale of any such development and the use to which it is to be put“.

Any development that would be subject to Environmental Impact Assessment (EIA) would be exempt from Part 2 of the register under the new regulations.

Permission in Principle (PiP)

PiP will automatically be granted for five years for development of land allocated in Part 2 of the BLR, subject to some exceptions.  Once PiP is granted, technical detailed consent will be needed to implement it and conditions may be attached.   The idea is that the principle of allowing a specified amount of housing on a site is established through the granting of PiP and that this is separated from the associated technical issues to give developers more certainty and reduce delays.

Usefully, PiP can be granted for the conversion and extensions of existing buildings to housing-led development as well as the redevelopment of sites for new housing.

The government’s press release issued today (3 April 2017) states:

‘Permission in principle’ will simplify the planning process for developers. It will give them more certainty over whether a site is suitable for development ahead of working up costly proposals to obtain full planning permission. This will encourage new development and increase the amount of land available to build on, helping to boost housing supply’.

Further legislation will follow at a later date, bringing PiP into force for land which is allocated for housing-led development in local plans and neighbourhood plans.

Impact of Permission in Principle

It is difficult to know exactly what impact PiP will have on the planning process and how quickly its effect will be seen.  What is certain, however, is that PiP represents a big change to the current planning system and may well prove to be an attractive alternative for developers seeking to secure permission for housing-led development on previously developed land.  73 local planning authorities have already piloted the new brownfield register and these authorities in particular are likely to be keen to publish the statutory BLR.

If you would like to discuss a specific brownfield site or any of the above, please feel free to contact one of the Firstplan team.

 

It is widely agreed that the use of planning conditions is an essential part of the development control process, often making otherwise unacceptable development acceptable and helping to achieve sustainable development. However, developers are all to often frustrated by LPA’s routinely attaching unnecessary and unreasonable conditions to planning permissions and consents. The approval of these conditions, particularly ‘pre-commencement’ conditions which need to be formally discharged before work can start on site, can sometimes cause costly delays.

The Government recognises the inappropriate use of conditions as a problem, and has responded by introducing a power in the Neighbourhood Planning Bill to ensure that pre-commencement conditions can only be used with the agreement of the applicant. Planning Practice Guidance already clarifies that it is best practice for a LPA to agree to proposed conditions with an applicant before a decision is taken, and as early in the planning process as possible. The Bill will take this one step further by giving this best practice guidance a statutory footing for the first time.

Alongside this, the Government issued a consultation paper in September 2016 entitled Improving the Use of Planning Conditions which sought views on how the process of prohibiting the use of pre-commencement conditions without the agreement of the applicant would operate, and the potential for a wider application of the proposed powers in the Bill to prohibit conditions in targeted circumstances. The Government has now promptly issued their response to this consultation exercise (December 2016).

In terms of the pre-commencement conditions process, the Government remains of the view that it should be the responsibility of the LPA to chose the most appropriate time to seek agreement of the applicant to any pre-commentment conditions and where dialogue begins early, this requirement should not lengthen the process of determining a planning application. In order to avoid undue delays in the process, the Government is proposing a default period of 10 working days, after which an applicant’s agreement will be deemed to be given (in addition to the ability for local authorities to agree a longer timescale with the applicant). The default period will commence once the LPA has given notice of its intention to impose a pre-commencement condition and sought the agreement of the applicant.

The Government anticipates that this process will reduce the workloads of authorities once permissions have been granted by reducing the number of pre-commencement conditions that have to be discharged. Whilst this may well prove to be the case, the introduction of this default notice period could place additional pressure on LPA’s at the application stage. The Government stresses the importance of ensuring that the default period does not impede the timely determination of planning applications, and advises that local authorities should therefore give careful consideration to how this period fits with the statutory determination deadlines. In practice, requiring Planning Officers’ to give an applicant two week’s notice if a pre-commencement condition is to be imposed and still determine that application within the eight week (or 13 week) statutory determination period, will effectively reduce the time they have to consider the application to six weeks. In theory, this should speed-up the determination of applications. However, with Planning Departments’ under continued pressure to meet deadlines (with limited resources), the unintentional outcome of this default period may be that we see an increase in the number of applications refused as officers’ find that they have insufficient time to complete this additional stage of the determination process within the target date.

The second part of the consultation proposed greater clarity for LPA’s and applicants about a number of types of conditions which Planning Practice Guidance identifies as not meeting the 6 policy tests in paragraph 206 of the National Planning Policy Framework. The Government is proposing to introduce secondary legislation to expressly prohibit each of the following six types of conditions:

1. Conditions which unreasonably impact on the deliverability of a development – e.g. disproportionate financial burden
2. Conditions which reserve outline application details
3. Conditions which require the development to be carried out in its entirety
4. Conditions which duplicate a requirement for compliance with other regulatory requirements – e.g. building regulations
5. Conditions requiring land to be given up
6. Positively worded conditions requiring payment of money or other consideration

In light of consultation responses, a further consultation of the draft regulations will be carried out providing greater clarity on the detail on the conditions proposed to be prohibited. Updated guidance will be published in due course.

The Neighbourhood Planning Bill is currently awaiting its Second Reading in the House of Lords on 17 January 2017 and we will keep you up to date on its progress and the aforementioned secondary legislation. In the meantime, if you have any questions regarding the use of planning conditions, please feel free to contact one of the Firstplan team.

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