Instruments drawn to the special attention of the House
Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 (SI 2020/755)
Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020 (SI 2020/756)
Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (SI 2020/757)
Date laid: 21 July 2020
Parliamentary procedure: negative
Town and Country Planning (Use Classes) (Amendment) (England) (No. 2) Regulations 2020 (SI 2020/859)
Date laid: 13 August 2020
Parliamentary procedure: negative
Town and Country Planning (Use Classes) (Amendment) (England) (No. 3) Regulations 2020 (SI 2020/895)
Date laid: 25 August 2020
Parliamentary procedure: negative
These instruments make substantial and wide-ranging changes to planning legislation. According to the Ministry of Housing, Communities and Local Government, the aim is to encourage and speed up the delivery of housing and to support the economic recovery after the pandemic, especially in relation to England’s high streets. The changes are de-regulatory and concerns have been raised that they could lead to the construction of low-quality housing, an increased concentration of fast food restaurants with an impact on the health of local residents, and reduce the ability of local authorities to shape the character of their high streets. These are issues which the House may wish to explore, including in the context of the Government’s plans for further, more fundamental reform of the local planning system which have been published for consultation. While the Committee notes the Government’s intention to support the economic recovery from the pandemic, the plans for further reform do raise the question whether it would have been more appropriate to take forward the significant and far-reaching changes made by these instruments in a future planning bill, enabling Parliament to scrutinise the changes more fully.
The instruments are drawn to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
1.The Ministry of Housing, Communities and Local Government (MHCLG) has laid these five instruments with Explanatory Memoranda (EM), and with an Assessment of Impacts for two of the instruments (SIs 2020/756 and 2020/757). The purpose of the instruments is to make changes to planning legislation which, according to MHCLG, will encourage and speed up the delivery of new housing and allow local development to support the economic recovery from the pandemic, with a focus on reviving high streets. MHCLG says that the measures will increase densities by making effective use of existing buildings and by avoiding the need to develop greenfield sites, as set out in the Planning for the Future policy paper in March 2020.1
2.The changes made by the five instruments are summarised below. The instruments are set in the wider context of the Government’s White Paper, which was published in August for consultation and sets out proposals to “streamline and modernise the planning process”.2 MHCLG told the Committee that in contrast to these instruments, the proposals in the White Paper “would be longer term measures to introduce a new approach to the planning system to ensure more land is available for development where it is needed, including a focus on design and sustainability and a new system of developer contributions to infrastructure”.
SI 2020/755
3.This instrument introduces a new permitted development right to allow certain existing houses to be extended upwards with additional storeys to provide extra living space. The instrument also introduces a new permitted development right for the construction of new self-contained homes by allowing additional storeys to be built on certain existing homes and commercial buildings. The changes mean that a lighter touch prior approval process will apply to these types of development, rather than the full local planning permission application process. According to MHCLG, the new arrangements will still allow for local consideration of key planning matters, as summarised in paragraph 7 below.
4.MHCLG says that the changes are the second phase of a reform of permitted development rights for the upward extension of buildings. An earlier instrument,3 which the Committee drew to the special attention of the House in July, introduced a new permitted development right allowing up to two additional storeys to be constructed on purpose-built blocks of flats.
5.MHCLG says that allowing upward extensions of existing homes and commercial buildings will provide more certainty for homeowners and developers seeking additional living-space or wanting to create new homes. The new rights are subject to maximum height limits to reflect sensitivities around local amenity, and there are requirements to prevent overlooking and in relation to the external appearance of the extension. The new rights do not reduce building and fire safety requirements which are covered by separate regulations.
SI 2020/756
6.This instrument introduces a new permitted development right to allow the demolition of certain types of buildings and the construction of replacement residential buildings to create new homes. The right will apply to vacant and redundant free-standing buildings that were built before 1 January 1990 and have been vacant for at least six months. While limits are placed on the scale of the new developments in terms of maximum height and footprint, no detailed consideration of the condition of the vacant building will be required.
Prior approval process
7.As with current permitted development rights, the new rights introduced by SI 2020/755 and SI 2020/756 will be subject to prior approval by the local planning authority. While scrutiny under this process is less comprehensive than under the full planning permission application process, MHCLG says that it still enables local planning authorities to consider key planning matters, including any potential impact on the transport infrastructure; contamination and flood risks; the potential impact on the amenity of neighbouring premises, including overlooking, privacy and light; the design and external appearance of the development; the provision of adequate natural light; and the impact of additional residential use in an area. As SI 2020/756 allows for demolition, local consideration may also cover the impact of the development on heritage and archaeology; applications will have to include a heritage and archaeology statement and plans to mitigate any impact on heritage or archaeological assets. Given the potential impact of construction on occupiers and neighbours, the local planning authority will notify any adjoining owners or occupiers of proposed developments and developers will have to prepare a document setting out how they intend to minimise any adverse impacts of the building works on neighbours.
8.The new rights will not apply in Conservation Areas, National Parks and the Broads, areas of outstanding natural beauty, or sites of special scientific interest or if the building is listed or a scheduled monument. Local planning authorities will have eight weeks to make a decision on an application and may attach conditions on granting prior approval.
9.We asked MHCLG whether the new permitted development rights would allow local planning authorities also to consider the provision of affordable housing. MHCLG said that:
“The permitted development rights do not require affordable housing provision, therefore it is not a matter for prior approval consideration. Where additional residential floorspace is created through the rights in SI 755 and SI 756, and a local authority has a charging schedule in place, a community infrastructure levy may be payable.”
10.Concerns have been raised that, due to the lighter touch approval process, the changes could lead to the construction of low-quality housing. Research conducted by University College London and the University of Liverpool for MHCLG4 concluded that “permitted development conversions do seem to create worse quality residential environments than planning permission conversions”. We asked MHCLG how concerns about low quality homes would be addressed under the new arrangements. MHCLG told the Committee that:
“Legislative changes were introduced in a Statutory Instrument (2020 No. 632) in June [ … ] 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. This requirement has also been included in SIs 755 and 756. The measure will improve the quality of new homes delivered under permitted development rights by requiring that adequate natural light is provided in all habitable rooms. The Amendment Regulations [SI 2020/632] introduced a new matter for prior approval consideration in respect of the provision of adequate natural light in all habitable rooms. Local planning authorities are required to refuse prior approval applications where inadequate natural light is provided.”
11.While adequate natural light is a key factor, the House may wish to ask the Minister how local authorities will ensure that developments under the new permitted development rights also meet other important aspects of quality housing, such as access to services, transport and green spaces or standards on space.
SI 2020/757
12.This instrument creates a number of new use classes in England. Use Classes group different uses of buildings and other land into different categories. A change of use within a single use class is not considered to be a development and therefore does not require planning permission. SI 2020/757 creates a new broad ‘Commercial, business and service’ use class (Class E) to incorporate previous use classes for shops, financial and professional services, offices, restaurants and cafes. It will also include uses such as gyms, nurseries and health centres and other uses which are suitable for a town centre. MHCLG says that this new use class allows for a mix of uses to reflect changing retail and business models, recognising that a building may be in a number of uses at the same time or that it may be used for different uses at different times of the day. MHCLG says that because planning permission will no longer be required, businesses will have greater freedom to adapt to changing circumstances.
13.The instrument also creates new use classes for ‘Learning and non-residential institutions’ for buildings such as schools, libraries and art galleries and ‘Local community’ uses for buildings such as swimming pools, skating rinks and areas for outdoor sports, as well as shops servicing the essential needs of local communities, such as small local shops that are needed to meet the day to day shopping needs of local communities, especially rural communities, large residential estates and communities outside main shopping areas.
14.The instrument also abolishes the former use class for “Drinking establishments” and “Hot food takeaway”. MHCLG says that changes in these categories can give rise to important local considerations, for example, to ensure that local pubs can be protected or to prevent the proliferation of hot food takeaways. These uses have therefore been included in a list which specifically identifies uses which do not now fall within any use class. This means that, in practice, changes to and from these uses will be subject to local consideration through the full planning application process. MHCLG has taken the same approach with cinemas as well as concert, dance and bingo halls which fell within the former use class which this instrument transfers into the new ‘Commercial, business and service’ use class (see paragraph 12).
15.During consultation on the proposals,5 concerns were raised that creating a new broad use Class as set out in paragraph 12 could mean that changes in the use of a building to restaurant use could take place without any local consideration of the potential impact from longer opening hours and increased noise and odours, and that this could also lead to a proliferation and increased concentration of restaurants, including fast food restaurants, in an area, with an impact on the health of local residents and local amenity. There were also concerns that the changes could limit the ability of local communities to shape their high streets as set out in local or neighbourhood plans. MHCLG says that in response to the economic impact of the pandemic on high streets, the Government has decided to introduce the reform of the change of use rules without further public consultation. We asked MHCLG how the concerns raised during consultation had been addressed. MHCLG responded that:
“The measures to amend and simplify the system of use classes in SI 757 are being introduced to support economic recovery. There will be significant changes required to our High Streets following the downturn due to the Covid 19, which will have to adapt to offer a wider range of facilities and services to attract people back. The new Class E Commercial, business and service use class allows change between a number of uses, and mixed use within those uses, giving greater freedom to adapt to changing circumstances. However hot food takeaways, in the former Class A5, are not included in the new use class (Class E) and an application for planning permission will always be required to change to, and from, this use. There is no separate class in the former use classes for “fast food” restaurants as the planning system does not consider there is a land use impact between restaurants providing different types of food.”
16.While it is reassuring that changing the use of a building to providing hot food takeaway will require full planning permission, the new Class E use class will allow for a wide range of uses, such as shops and restaurants, including fast food restaurant, and changes within this use class, including changes to use as a fast food restaurant, will not require planning permission. The House may wish to press the Minister on the ability of local authorities to shape the character of their high streets under the new rules, in particular their ability to control the spread of fast food restaurants in their area.
Amendments and corrections
17.SI 2020/859 and SI 2020/895 provide clarification and correct a drafting error in the substantive instruments summarised above, while SI 2020/859 ensures that Community Infrastructure Levy (CIL) charging schedules6 continue to operate and have proper effect when SI 2020/757 comes into force, SI 2020/895 corrects a drafting error in SI 2020/757 to ensure the correct, smaller dimensions are applied in the definition of a shop within a certain use class. The smaller dimension (square metres, rather than metres square) was stated in the EM to SI 2020/757 but not in the regulations themselves. Having to bring forward two amending instruments in quick succession soon after laying the substantive policy instruments suggests that the policies and drafting may not have been checked properly before laying. This is not an efficient way of legislating. The Committee recommends that MCHLG reviews its processes to ensure that instruments meet the expected quality standards before being laid before Parliament.
Conclusion
18.These instruments make substantial and wide-ranging changes to planning legislation to encourage and speed up the delivery of housing and to support the economic recovery after the pandemic, especially in relation to high streets. The changes are de-regulatory and concerns have been raised that they could lead to the construction of low-quality housing, an increased concentration of restaurants, including fast food restaurants, with an impact on the health of local residents, and reduce the ability of local authorities to shape the character of their high streets. These are significant issues which the House may wish to explore, including in the context of the Government’s plans for further, more fundamental reform of the local planning system which have been published for consultation. While the Committee notes the Government’s intention to support the economic recovery from the pandemic, the plans for further reform do raise the question whether it would have been more appropriate to take forward the significant and far-reaching changes made by these instruments in a future planning bill, enabling Parliament to scrutinise the changes more fully. The instruments are drawn to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
1 MHCLG, Planning for the future (12 March 2020): https://www.gov.uk/government/publications/planning-for-the-future [accessed 3 September 2020].
2 MHCLG, ‘Planning for the future White Paper’ (6 August 2020): https://www.gov.uk/government/consultations/planning-for-the-future [accessed 3 September 2020].
3 Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020 (SI 2020/632), see: 21st Report, Session 2019–21 (HL Paper 96).
4 MHCLG, ‘Research into the quality standard of homes delivered through change of use permitted development rights’ (July 2020): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/902220/Research_report_quality_PDR_homes.pdf [accessed 3 September 2020].
5 MCHLG, ‘Planning Reform: supporting the high street and increasing the delivery of new homes’, (last updated May 2019): https://www.gov.uk/government/consultations/planning-reform-supporting-the-high-street-and-increasing-the-delivery-of-new-homes [accessed 3 September 2020].
6 The CIL is a charge which can be levied by local authorities on a new development in their area to help them deliver the infrastructure needed to support the new development. The levy only applies in areas where a local authority has consulted on, and approved, a charging schedule which sets out its levy rates.