There will be a Westminster Hall debate on the Levelling Up Agenda on Tuesday 15th June at 2:30pm
Documents to download
Planning in England: permitted development and change of use (1 MB , PDF)
This briefing from the House of Commons Library examines planning policy in England relating to permitted development and change of use and the controversy surrounding some of the recent policy changes.
What are permitted development rights?
Permitted development rights (PDRs) are rights to make certain changes to a building without the need to apply for planning permission. They derive from a general planning permission granted by Parliament, rather than from permission granted by the local planning authority (LPA). Before some PDRs can be used, the developer must first obtain “prior approval” in relation to specified aspects of the development from the LPA.
Some PDRs cover building operations, such as home extensions, whereas others cover change of use of buildings.
The Town and Country Planning (General Permitted Development) (England) Order 2015 (the 2015 Order) grants PDRs. Under the 2015 Order, planning permission is not needed for changes in use of buildings within each subclass and for certain changes of use between some of the use classes.
Various changes to PDRs were made in 2020, many of them in response to Covid-19.
In some circumstances LPAs can suspend PDRs in their area, under Article 4 of the Town and Country Planning (General Permitted Development) (England) Order 2015.
What next? Consultation in December 2020 on updating PDRs
The Government ran a consultation on revised PDRs (to reflect the new use classes introduced in September 2020, discussed below) between December 2020 and January 2021.
Main points of the consultation included:
- A new PDR to allow change of use from the new use class E (commercial, business and service) to C3 residential.
- An amended PDR for the extension of schools, colleagues, universities and hospitals, to support the faster delivery of schools and hospitals and other public infrastructure improvements.
- A similar right for prisons and defence sites, which would allow prisons (but not other residential facilities such as immigration removal centres) to expand their facilities.
- Faster decisions on applications for planning permission: for relevant planning applications, the statutory period for determination would be reduced from 13 weeks (or 16 weeks in the case of development requiring an Environmental Impact Assessment) to 10 weeks.
- Existing PDRs will be consolidated and simplified.
- National parks, areas of outstanding natural beauty and other sensitive sites would continue to be excluded from PDRs, but (unlike existing PDRs) the PDRs proposed here would apply in conservation areas.
Response to the consultation
As with other proposed planning reforms and the existing PDR for office to residential change of use, these proposals – and especially those relating to change of use from Class E commercial, business and service to residential – have proved controversial.
Although some commentators acknowledged a need for more homes and to support struggling high streets, they often cast doubt on the Government’s approach, saying that increased PDRs were not the best option. Critics of the Government’s approach also suggested that it might have damaging effects on (amongst things) local democracy and community engagement, the quality of the new homes to be created and the historic and natural environment. Some suggested that the proposed changes might undermine the high street rather than support its revival. Others argued that LPAs should be able to seek developer contributions for any new homes created through the new, expanded PDRs, a matter on which the Government has not yet made a decision.
The Local Government Association criticised the proposals, arguing that they did not support the aspirations (such as greater democratic accountability and transparency, protecting our heritage and planning for beautiful and sustainable places) set out in the white paper Planning for the Future and could have unintended and irreversible consequences, undermining local growth strategies and depriving local authorities of developer contributions (section 106 payments).
Planning magazine remarked that, from the Government’s perspective, the proposed changes no doubt seemed a “no brainer” and the increased right to convert commercial property to residential use was supported by the Home Builders Federation. But (Planning reported) some planning professionals were expressing concerns, such as reduced control over what happens in town centres, although the Ministry of Housing, Communities and Local Government (MHCLG) rejected those criticisms.
In its detailed response to the consultation, the Royal Town Planning Institute (RTPI) argued (amongst other things) that
- The proposed changes would reduce opportunities for community engagement and democratic oversight and would make it more difficult to identify areas of employment within Local Plans
- Possible unintended consequences of the proposed changes included loss of active frontages in high streets and possible loss of facilities for physical activity such as gyms, swimming pools and other sports and leisure facilities in Class E
- The PDRs should not apply in conservation areas
- Some other matters should be added to prior approval for PDRs, including access to essential services, quality design, ventilation and access to green and open spaces
- The Government should allow existing Article 4 directions to be extended and continue as a transitional provision for these new PDRs
- The PDR for extensions to hospitals and other health service premises should apply only during the response to the Covid-19 pandemic.
- There was no need for the proposed PDR for schools, colleges and universities or for the proposed PDR for prisons.
The Town and Country Planning Association argued that, although we need new homes and to invigorate the high street, the proposed PDRs were not the right way to do it. Similarly, the Chartered Institute of Housing did not dispute (it said) the need for more homes or the role for residential uses in some high streets and town centres, but did not regard PDRs as the appropriate approach. The Institute was concerned that the proposals would take control from LPAs, impacting on their ability to address specific local needs, and (even though the Government had taken steps to address the identified problems with the quality of some homes created through PDRs) might lead to poor quality housing. The Royal Institute of British Architects also argued against the proposed reforms, saying that they could create a “race to the bottom” and lead to “shoddy, small and inadequate homes”.
The Construction Industry Council argued that the proposals could alienate communities by enabling poor quality development, without contributing to local infrastructure, and called for more safeguards. The British Property Foundation supported the Government’s aim of breathing new life into town centres, but they too expressed concerns that the proposed PDR for conversion of commercial, business and service use to residential would work to the long-term detriment of high streets. The business campaigning group London First argued that housing should not be “pepper-potted” into struggling high streets and town centres; one possible unintended consequence of the proposed changes was that viable businesses would be ousted in favour of residential conversions.
The Chartered Institute for Archaeologists said that successive changes to planning policy were undermining the management and protection of the historic environment. In an open letter with other natural, built and historic environment organisations, the Institute argued that applying the new PDRs to conservation areas and not including design and climate considerations in matters for prior approval would be “extremely damaging”. The Wildlife Trusts described the proposed changes as “alarming”, suggesting that they would lower housing standards and threaten nature and the amount of accessible green space. They would also (the Wildlife Trusts said) leave LPAs unable to require climate mitigation and adaptation measures to be put in place before granting planning permission, and put conservation areas at risk. The Theatres Trust welcomed the commitment to exclude theatres and other cultural venues from the proposed PDRs, but raised concerns about potential negative impacts from other aspects of development.
Change of use
The rules relating to when a change of use for a building does and does not require planning permission are set out in the Town and Country Planning (Use Classes) Order 1987 (the 1987 Order) and the Town and Country Planning (General Permitted Development) Order 2015 (the 2015 Order).
The 2015 Order grants PDRs. Under the 2015 Order, planning permission is not needed for changes in use of buildings within each subclass and for certain changes of use between some of the classes. If there are no PDRs for change of use between categories set out in the 2015 Order, then full planning permission for any change of use will be necessary to prevent the risk of enforcement action.
72,980 new homes were added to the housing stock through change of use PDRs between 2015-16 and 2019-20. Delivery peaked in 2016-17 (at 18,890 new homes), but had fallen by 35% by 2019-20.
The 1987 Order puts uses of land and buildings into various categories known as “use classes”, further split up into a number of subclasses. The categories give an indication of the types of use which may fall within each use class. Not all uses are put into a use class; those that are not are called “sui generis”.
Until 1 September 2020, there were four main categories:
- 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.
New use classes from 1 September 2020
Parts of the use class order dealing with non-residential uses were amended from 1 September 2020, by the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020.
These Regulations created new use classes – a broad Class E (commercial, business and service), Class F1 (learning and non-residential institutions) and Class F2 (local community) – and so obviate the need to obtain planning permission for some changes between various non-residential uses required under the previous use classes. Shops will fall into Class E (commercial, business and service) or Class F2 (local community) depending on their size, with smaller shops in the local community category.
These Regulations also moved some uses out of the previous use classes and into the “sui generis” category. This provides some measure of protection against change of use, in that any change of use cannot be done under PDRs and will require planning permission.
In its evidence to the Housing, Committee and Local Government select committee’s inquiry into supporting our high streets after Covid, the RTPI noted that the new use classes had created greater flexibility, but an unintended consequence was that retail businesses would be able to operate from what would formerly have been B1 business premises without the need for consent. Although the RTPI welcomed the introduction of more residential accommodation to town centres, here too it argued there should be some controls.
Office to residential change of use
The office to residential change of use PDR – introduced as a temporary measure but made permanent from April 2016 – has proved controversial.
A total of 72,980 new dwellings were added to the housing stock through PDRs over the five years between 2015-16 and 2019-20. Of these, 64,798 (89%) were created through office to residential conversions – the largest category by a substantial margin.
The Royal Institute of Chartered Surveyors (RICS) reported in May 2018 that the quality of office to residential schemes ranged from high to extremely poor, with PDR schemes being “significantly worse” than those which had been through the full planning process. A briefing by London Councils in August 2015 noted (for example) the loss of key office accommodation and of new affordable housing supply and the specialist publication Planning reported in November 2018 that the Local Government Association had estimated that 10,500 affordable homes had been lost, as developer contributions on such conversions could not be sought.
The Government, though, maintains that the PDR plays a part in delivering much-needed homes. In response to a PQ in January 2019, the then Housing Minister, Kit Malthouse, said that the PDR had then delivered more than 42,000 homes, which met fire safety and other building regulations. In December 2020, the planning minister, Christopher Pincher, described recent measures to ensure PDRs would deliver good quality homes.
The Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020 came into force on 24 June 2020. They also amended the 2015 Order, so that each individual PDR in force at the time – such as office to residential (Class O) – now requires “adequate natural light in all habitable rooms”. This will be a matter for consideration at prior approval. More detail is in the Explanatory Memorandum to the Regulations. (Where other PDRs for the creation of new homes have since been introduced – such as the creation of new dwellings through upward extensions – they also require prior approval consideration of natural light).
The Town and Country Planning (General Permitted Development) (England) (Amendment) Regulations 2020 will, from 6 April 2021, require all new homes created under PDRs to comply “as a minimum” with the nationally described space standards.
It has long been the Government’s aim to broaden PDRs to enable owners to extend their properties upwards. This PDR has, though, attracted some controversy.
The Commons Library briefing What next for planning in England? The National Planning Policy Framework surveys some of the main policy changes reflected in the revised NPPF in 2018/19. As section 15 of that briefing explains at more length, under making effective use of land, the National Planning Policy Framework now says that planning policies and decisions should support opportunities to use the airspace above existing buildings, by allowing upward extensions in certain situations.
In October 2018, MHCLG launched a consultation aimed (it said) at supporting the high street by (amongst other things) increasing PDRs. One of the changes proposed there was to allow certain types of building to be extended upwards.
In its response to this consultation, the Royal Town Planning Institute argued against the extension of PDRs and against a PDR for upwards extensions, identifying a number of potential drawbacks, including poorly-designed dwellings and a major impact on existing occupiers and neighbours.
The Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020 are now in force. One of the PDRs they cover relates to upward extensions. The new PDR in these Regulations is confined only to creating new homes, and then only on top of purpose-built, detached blocks of flats, up to two additional storeys. More detail is in the Explanatory Memorandum to the Regulations.
The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 came into effect on 31 August 2020, expanding the PDR for upward extensions (previously only available for the creation of new homes on top of purpose-built blocks of flats) to allow for the extension of existing homes and the creation of new homes above certain other types of building. The right applies to buildings built since 1 July 1948, but not in Conservation Areas, National Parks and the Broads, areas of outstanding natural beauty, or sites of special scientific interest. There are various provisions about height, overlooking and so on and all these rights are subject to prior approval. More detail is in the Explanatory Memorandum to the Order.
Demolition and building of new housing
The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020 came into effect on 31 August 2020. This dealt with PDRs for demolition and rebuilding as residential, as proposed in the 2018 consultation Planning reform: Supporting the high street and increasing the delivery of new homes. That consultation had promised further consultation on the detail, but the Explanatory Memorandum to this Order said that would not now happen, in the interests of speed and stimulating regeneration and delivering more homes more easily, as part of the Government’s response to the Covid-19 pandemic.
Article 4 of the 2020 Order added a new class ZA to the 2015 Order, dealing with demolition of buildings and construction of new dwellinghouses in their place. To fall within the scope of this new PDR, the building to be demolished must have been built before 1 January 1990, be vacant, redundant and free-standing and fall within the B1(a) offices, B1 (b) research and development, B1 (c) industrial processes (light industrial), and free-standing purpose-built residential blocks of flats (C3) use classes on 12 March 2020.
The PDR is subject to the prior approval process and the building must have been vacant for at least six months prior to the date of the application for prior approval. There are limits on the scale of the development, as the Explanatory Memorandum to the Order explains.
- This briefing applies to England only. It incorporates the former separate briefing on change of use (SN 01301), which is now withdrawn.
- For information about permitted development and use classes in other parts of the UK, see sections 8 and 9 of the joint Library briefing Comparison of the planning systems in the four UK countries: 2016 update.
- Commons Library briefings on other aspects of planning can be found on the topic page for housing and planning.
Documents to download
Planning in England: permitted development and change of use (1 MB , PDF)
There will be a Westminster Hall debate on the Community Renewal Fund and Levelling Up Fund in Wales on Tuesday 8th June at 2:30pm
The Environment Bill 2019-21 has completed it Committee Stage and had day one (of two) of its Report Stage in the House of Commons. This paper is a summary of what happened in the Committee and day one of Report Stage and how the Bill has changed. It considers key Government and Opposition amendments. Day two of Report Stage is scheduled to take place on 26 May 2021.