1.The Committee requested a memorandum on three points in relation to the Order.
In the new Class ZA inserted by article 4(2):
explain the human rights A1P1 analysis carried out by the Government in relation to the application of paragraph ZA.1(e) to an old building which has no occupiers but has more than one owner in relation to different parts of the building;
2.The Department understands that the concern underlying this question is how the permitted development rights introduced by S.I. 2020/756 impacts upon the private property rights of owners of the different parts of a building.
3.Article 1 of Protocol 1 to the European Convention on Human Rights guarantees the right of every natural or legal person to the peaceful enjoyment of their property. It is the Department’s view that S.I. 2020/756 does not infringe a person’s right to the enjoyment of their property. Simply put, if one owner acquires the right to develop the land by obtaining prior approval under the permitted development right this would not affect or override the property rights of the owner of another part of the building or their ability to enforce such rights under the common law. Any attempt by a developer to implement planning permission without the owner’s permission could amount to trespass and the landowner would be entitled to seek a remedy against the developer.
4.Under the statutory regime in the Town and Country Planning Act 1990, a person does not have to own land in order to seek to permission to develop the land. Permission to develop relates to the land rather than the applicant or owner. For example, a prospective purchaser might seek permission to develop before deciding whether to purchase.
In relation to paragraph ZA.2:
(a) explain why sub-paragraph (2)(i) requires prior approval as to the impact of the development’s increase in residential use in the area on all businesses, but only on new residents; and
5.Paragraph 182 of the National Planning Policy Framework, which was revised in July 2018, introduced the “agent of change” principle into a consideration for new developments.
“Planning policies and decisions should ensure that new development can be integrated effectively with existing businesses and community facilities (such as places of worship, pubs, music venues and sports clubs). Existing businesses and facilities should not have unreasonable restrictions placed on them as a result of development permitted after they were established. Where the operation of an existing business or community facility could have a significant adverse effect on new development (including changes of use) in its vicinity, the applicant (or ‘agent of change’) should be required to provide suitable mitigation before the development has been completed.”
6.The new permitted development right applies to offices, research and development and light industrial buildings as well as residential blocks of flats. On that basis this prior approval at ZA.2(2)(i) envisages the situation where residential use could be introduced to an area previously used solely or primarily for business use, and therefore allows for consideration of the impact on existing businesses, for example of matters related to hours of operation, traffic etc. The condition therefore requires the local planning authority to consider the impact on the new residents of the redeveloped site and applies the agent of change principles. For example, the development might be expected to provide double glazing to minimise the impact of the operation of the business on residents and avoid complaints about noise limiting the operation of the business. Where it is not possible to provide appropriate mitigation, it could be a matter in relation to which prior approval is refused.
(b) explain whether it is intended that approval might be granted or withheld for new dwellinghouses by reference to compliance with the “Technical housing standard - nationally described space standard” and if so, how effect is given to that intention.
7.The Department does not intend that approval would be granted by reference to compliance with the “Technical housing standards”, which is why there is no such express condition in the Order. The Department expects any block of flats or new dwellinghouse to be of good quality whatever the planning route, including those delivered through this right, and whether it was available to buy or to rent. Smaller properties can be less expensive, opening home ownership to more people. Well-designed new homes, delivered both through a planning application and permitted development rights, can be smaller than the nationally described space standards. Nevertheless, the Government will continue to keep all aspects of housing delivery under review.
Ministry of Housing, Communities and Local Government
22 September 2020
Published: 2 October 2020