Permitted Development Rights Contents

2The role of permitted development in the planning system

Permitted development and the use class system

7.PDRs are rights to make certain changes to a building or the use of a building without the need to apply for planning permission. They derive from a general planning permission granted by Parliament, rather than permission granted by the local planning authority (LPA), and have existed ever since the implementation of the comprehensive, statutory planning system in 1948.8 Whilst permitted development bypasses the full planning application phase, some PDRs require the developer to first obtain “prior approval” from the LPA, in respect of a restricted range of planning matters. Some PDRs cover building work, such as home extensions, and others cover conversions between different use classes.

8.Slightly different from permitted development, but having the same effect, is the use class regime. Under the Town and Country Planning (Use Classes) Order 1987, different uses of buildings and land are grouped together under use classes.9 Change of use within the same use class is permitted, on the grounds that it does not constitute development and so does not require planning permission.10 Many PDRs work by permitting changes of use from one use class to another. For example, the class O right in the Town and Country Planning (General Permitted Development) (England) Order 2015 permitted changes of use from use class B1(a) (offices) to use class C3 (residential).11

9.In recent years, successive governments have made significant changes to the permitted development regime. One of the first came in 2010, when the Coalition Government legislated to permit changes of use between C3 (residential) and C4 (small houses in multiple occupation (HMOs)).12 It legislated again in 2013 to extend existing PDRs for homes and business premises and to grant a temporary PDR for change of use from office to residential.13 The intention behind this last PDR was to support growth by making it easier for businesses “to make the best use of their premises” and increasing the number of new homes.14 In 2015, the Government replaced the Town and Country Planning (General Permitted Development) Order 1995 with the Town and Country Planning (General Permitted Development) (England) Order 2015.15 The new order consolidated all existing PDRs and added new ones. Since then, all new changes to permitted development have been made via amendments to the 2015 Order. In 2016, the temporary office-to-residential PDR was made permanent.16

10.In 2020, the Government introduced major changes to the use class system, primarily to permit conversion between a much wider range of commercial and retail premises through the creation of new use class E (commercial, business and service).17 According to the explanatory memorandum to the relevant statutory instrument, the new use class “allows for a mix of uses to reflect changing retail and business models” and so “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 of use within this class do not require planning permission. The Government believes that combining these uses “will give businesses greater freedom to adapt to changing circumstances and to respond more quickly to the needs of their communities.”18 The new use classes took effect on 1 September 2020.19

11.Consequent on the introduction of the new use class, the Government announced a new PDR for conversion between use class E and use class C3 (residential), known as the class MA right.20 Its objective is to provide “further flexibility to allow this broader range of uses to change to residential use” and to “support housing delivery and attract the additional footfall that new residents will bring.”21 The class MA right will apply from 1 August 2021.22

12.The same statutory instrument that introduced the new class MA right also expanded the scope of an existing permitted development right to allow larger extensions to existing schools, colleges, universities, hospitals and prisons.23 In the last year, through separate statutory instruments, the Government has also introduced PDRs to permit the demolition and rebuild of vacant buildings for housing, in order to “stimulate regeneration of our towns and cities and deliver additional homes more easily as part of the Government’s response to the Covid-19 pandemic”;24 to allow additional storeys to be constructed on existing purpose-built blocks of flats to create new homes;25 and to allow the construction of additional storeys on free standing blocks and on buildings in a terrace that are houses or in certain commercial uses, and in mixed uses with an element of housing, to create additional self-contained homes.26

13.In oral evidence, the Housing Minister, the Rt Hon Christopher Pincher MP, outlined the purpose of the Government’s recent changes to permitted development. He described them as “part of a suite of options” the Government had developed or were developing to “increase the housing supply” and to revitalise high streets and drive growth.27 He also called them “an exemplar of our wider planning proposals to make the planning system speedier and more predictable”.28

Support for PDR as a means of speeding up non-controversial planning applications

14.Much of the evidence to our inquiry supported the use of PDR for low-impact, non-controversial building work, as a means of speeding up the planning system and not overburdening LPAs with unnecessary planning applications.29 In their joint submission, Dr Ben Clifford, Dr Jess Ferm and Dr Nicola Livingstone, from the Bartlett School of Planning, University College London, and Dr Patricia Canelas, from the University of Oxford, said PDRs had a “valuable role to play” in respect of “minor extensions of existing buildings”.30 Architects Levitt Bernstein said it was appropriate for “small-scale, low-impact development that is unlikely to be contentious” such as “small home-owner extensions”, “extensions to other building types” and “some changes of use”.31 The BPF called it a “useful deregulatory measure that saves small businesses and their landlords time and resource.”32

PDRs for change of use to residential

15.We also heard, however, that the PDRs for change of use to residential had fundamentally altered the nature and purpose of permitted development.33 Academics from the Chartered Planners in Academic Practice Group (CPAPG) agreed it had “a key role to play”, but only in supporting a plan-led system, not as “a separate policy instrument”, and that its recent extension was changing its purpose “from its original one of simplifying the approval process” for low-impact development “to one where it is also an instrument of policy detached from the plan-led system.”34 The Town and Country Planning Association (TCPA) said its recent “rapid expansion” had resulted in “a new shadow planning system”.35 Mark Worringham, Planning Policy Team Leader at Reading Council, called it an “attempt to chip away at the foundations” of the planning system.36

16.We were told that the residential PDRs, of which the new class MA right is the latest example, appeared to have confused the distinction between permitted development and the full planning process. As we explain later in our report, this is because the system of prior approval, and other conditions and standards that developments must meet, has become so complicated that, according to some of the evidence, these PDRs are failing to do what they were designed to do, which is to speed up the planning system for certain types of development. Michael Fearn, a planning consultant, said the 2015 Order, as amended, was now “utterly impenetrable”, including to many practitioners, and did “nothing to further the development that is so urgently required”. In particular, he criticised the subjective nature of many of the conditions for prior approval, which he said made it too easy for councils to reject applications and then led to “endless appeals” that turned on parties’ interpretations of the legislation. He said if the 2015 Order was to deregulate planning it needed to be simplified and all uncertainties and subjectivity removed from the prior approval process.37 The Land Promoters and Developers’ Federation said prior approval could “be complex” and sometimes involved “almost as much technical information as a full planning application”.38 The Royal Town Planning Institute (RTPI) agreed that permitted development was now “effectively the same as a planning application process”.39

Relationship to wider planning reforms

17.The Government’s approach to PDR must also be set in the context of its wider reforms to the planning system, as set out in its recent White Paper, Planning for the future. The Government says it “is committed to reshaping the planning system to make it accessible, efficient, and more predictable” and that, whilst the White Paper sets out its “longer-term ambitions”, it wants “to explore more immediate changes to the planning system to provide greater planning certainty and flexibility to ensure that it can effectively contribute to some of the immediate challenges facing the country.”40 Its extensions to permitted development are perhaps the most far-reaching of these immediate changes.

Local plans

18.A key element of the proposed planning reforms is an increased focus on Local Plans.41 We heard, however, that the new class MA right, as well as earlier iterations of the residential right, were inconsistent with this, as they allowed development to take place even where it contradicted Local Plans.42 Bromley Borough Council said they undermined “defined spatial strategies set out in Local Plans, which focus development in a planned way in more sustainable locations, including locations which correlate with planned infrastructure”.43 Mark Worringham said Reading Council had gone through a “long evidence-based process” to work out which of its employment areas were most important to economic growth and that it was now “potentially open season converting offices in those areas”. He said the same was true of its high streets.44 Islington Borough Council said the residential PDR was “completely at odds” with the emphasis on a plan-led approach and that councils would “not be able to implement many elements” of their Local Plans.45

19.Tunbridge Wells Borough Council described its efforts to develop a plan for its town centre, taking a “holistic approach to future development” that considered “the important role of both commercial and residential uses”, but said the new PDR undermined this approach.46 According to the National Trust, the new class MA right will “simply make it impossible for local authorities to plan effectively and will undermine the primacy of Local Plans as changes to the high street, town centres, edge of towns and rural locations will be outside of any planning controls.”47 Noting that the proposals stemming from the White Paper were currently being formulated, the Guildford Society said the Government’s vision should integrate the PDR regime into the planning system and define how it related to Local Plans.48 Tesco called on the Government to update its planning practice guidance “to make it clear” that the recent changes to PDR “do not override retail policies contained in Local Plans”.49

20.When asked about this tension, the Minister said Local Plans were “hugely important”, that the Government wanted local authorities “to put in place good, up-to-date Local Plans” and that “good local planning” could “ensure that your high street and other places in your community are properly planned for”.50 When asked what the point of Local Plans was if permitted development could change what was in them, he replied: “It does not change it that much. What it does is to allow for sensible development to take place in places where, for example, shops or commercial properties are no longer viable.”51 When pressed on this point, he only repeated the purpose of Local Plans, without explaining how they related to permitted development.52

Community engagement

21.The White Paper also emphasises the importance of engaging local communities in the planning system. It says residents will be able “to give their views on Local Plans and design codes”, that communities “will be able to trust the planning system again as their voice will be heard from beginning of the process” and that “Local Plans will be developed over a fixed 30-month period with clear engagements points”.53 We were told, however, that PDRs reduced this democratic involvement and accountability, in particular by circumventing Local Plans and excluding local communities from planning decisions.54 The TCPA said one of the “most dramatic implications of the continued expansion of PDR is the shift in public participation” and that local communities were “predominantly if not totally excluded from this element of the planning process”.55

22.According to Islington Council, it “has led to a democratic deficit”, “sends signals to local communities that involvement in Local Plans will not be worthwhile” and will “lead to disenfranchisement from the wider planning system”.56 The Planning Officers Society said communities “do not understand PDR”, “often object on matters” outside the prior approval process and “are not satisfied when the local authority is not in a position to resist the proposals”. It said this had “broken down trust between the public sector and communities”.57 According to the Hertfordshire Infrastructure and Planning Partnership, the “increasing complexity” of PDR “disenfranchises local people from the planning process”.58 The National Association of Local Councils (NALC) said communities felt “very deflated” when they saw permitted development overriding neighbourhood plans.59

23.The Government’s recent changes to the use class system and the introduction of the class MA permitted development right are a continuation of the policy of successive governments since 2013 of using PDR to speed up housing delivery. We understand the intention behind residential PDRs. We also support the use of prior approval and other conditions to control the quality and other aspects of permitted development. We note, however, that the regime might have become so complicated it is now little different from the full planning system.

24.To date, the Government has not explained how its PDR regime fits within the wider planning system or its proposed reforms in the planning White Paper. In particular, the recent extensions to permitted development appear to contradict the increased focus on plan-led development and local democratic involvement, and to fatally undermine the role of local authorities in place-making. This raises the question: How can a local planning authority explain to local communities that its hands are tied and it cannot secure the future of its town centres? We note, too, that there is no scope for local communities to comment on permitted development schemes.

25.We recommend the Government pause any further extensions of permitted development rights for change of use to residential, including the new class MA right, which is due to take effect on 1 August, and conduct a review of their role within the wider planning system. As part of that review, it should set out its long-term vision for permitted development for change of use to residential and explain how it plans to retain the benefits of these PDRs whilst not also sacrificing the ability of local planning authorities to control the quality of development. In setting out its long-term vision, the Government should set out how the PDR regime fits with the wider reforms to the planning system and what plans it has, if any, to further extend permitted development rights.

12 The Town and Country Planning (General Permitted Development) (Amendment) (No.2) (England) Order 2010; small HMOs are defined as small shared houses occupied by between three and six unrelated individuals, as their only or main residence, who share basic amenities such as a kitchen or bathroom

17 The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020; the new use class incorporates the previous shops (A1), financial and professional services (A2), restaurants and cafes (A3) and offices (B1) use classes. Uses such as gyms, nurseries and health centres (previously in use classes D1 (non-residential institutions) and D2 (assembly and leisure)) and other uses which are suitable for a town centre area are also included in the class.

19 Ibid, para 11.1

29 The National Trust (PDR0067); Levitt Bernstein (PDR0008); Reading Borough Council (PDR0022); Town and Country Planning Association (PDR0024); City of York Council (PDR0025); CLA (PDR0027); Tonbridge & Malling Borough Council (PDR0030); East Riding of Yorkshire Council (PDR0031); CIH (PDR0033); The Law Society (PDR0041); London First (PDR0044); London Borough of Islington (PDR0055); Historic England (PDR0057);Guildford Society (PDR0059); South East Strategic Leaders (SESL) (PDR0060); Policy Exchange (PDR0068); Wildlife and Countryside Link (PDR0070); London Property Alliance (PDR0071); Q2 [John Bibby]; Q30 [Mark Tufnell, Ian Fletcher]; Clifford, Ferm, Livingstone and Canelas (PDR0046); London YIMBY, PricedOut (PDR0048); British Property Federation (PDR0007); NALC (PDR0006); Professor Tony Crook (Emeritus Professor at The University of Sheffield); Hon Professor Vincent Goodstadt; Emeritus Professor Christine Whitehead; Emeritus Professor John Henneberry; Professor Nick Gallent; Hon Professor Janice Morphet; Professor Matthew Carmona; Professor Cecilia Wong; Professor Malcolm Tait; Professor Gavin Parker (PDR0072); Mayor of London (PDR0095); Land Promoters and Developers Federation (PDR0096)

30 Clifford, Ferm, Livingstone and Canelas (PDR0046)

31 Levitt Bernstein (PDR0008)

32 British Property Federation (PDR0007)

33 Local Government Association (PDR0023); Crook, Goodstadt, Whitehead, Henneberry, Gallent, Morphet, Carmona, Wong, Tait and Parker (PDR0072); Town and Country Planning Association (PDR0024); Q2 [Worringham]; Royal Town Planning Institute (PDR0037)

34 Professor Tony Crook (Emeritus Professor at The University of Sheffield); Hon Professor Vincent Goodstadt; Emeritus Professor Christine Whitehead; Emeritus Professor John Henneberry; Professor Nick Gallent; Hon Professor Janice Morphet; Professor Matthew Carmona; Professor Cecilia Wong; Professor Malcolm Tait; Professor Gavin Parker (PDR0072)

35 Town and Country Planning Association (PDR0024)

36 Q2

37 Mr Michael Fearn (Consultant at MFS Professional Limited) (PDR0002)

38 Land Promoters and Developers Federation (PDR0096)

39 Royal Town Planning Institute (PDR0037)

41 MHCLG, Planning for the Future, (August 2020)

42 Q7 [Rachel Blake, Mark Worringham]; Q34 [Ian Fletcher]; NALC (PDR0006); District Councils’ Network (PDR0017); British Property Federation (PDR0007); London Councils (PDR0021); Local Government Association (PDR0023); Ashford Area Committee of Kent Association of Local Councils ( KALC) (PDR0050); Tunbridge Wells Borough Council (PDR0054); London Borough of Bromley (PDR0051); London Borough of Islington (PDR0055); Guildford Society (PDR0059); Crawley Borough Council (PDR0062); The National Trust (PDR0067); Professor Tony Crook (Emeritus Professor at The University of Sheffield); Hon Professor Vincent Goodstadt; Emeritus Professor Christine Whitehead; Emeritus Professor John Henneberry; Professor Nick Gallent; Hon Professor Janice Morphet; Professor Matthew Carmona; Professor Cecilia Wong; Professor Malcolm Tait; Professor Gavin Parker (PDR0072); The Heritage Alliance (PDR0077); Planning Officers Society (POS) (PDR0080); Hertfordshire Infrastructure & Planning Partnership (PDR0088); National Parks England (PDR0091); London Borough of Hackney (PDR0093)

43 London Borough of Bromley (PDR0051)

44 Q7

45 London Borough of Islington (PDR0055)

46 Tunbridge Wells Borough Council (PDR0054)

47 The National Trust (PDR0067)

48 Guildford Society (PDR0059)

49 Tesco (PDR0084)

53 MHCLG, Planning for the Future, (August 2020), p. 24

54 Local Government Association (PDR0023); District Councils’ Network (PDR0017); London Councils (PDR0021); Reading Borough Council (PDR0022); Ashford Area Committee of Kent Association of Local Councils (KALC) (PDR0050); London Borough of Bromley (PDR0051); London Borough of Islington (PDR0055); South East Strategic Leaders (SESL) (PDR0060); Crawley Borough Council (PDR0062); The Highgate Society (PDR0069); Hertfordshire Infrastructure & Planning Partnership (PDR0088); Town and Country Planning Association (PDR0024)

55 Town and Country Planning Association (PDR0024)

56 London Borough of Islington (PDR0055)

57 Planning Officers Society (POS) (PDR0080)

58 Hertfordshire Infrastructure & Planning Partnership (PDR0088)

59 NALC (PDR0006)

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