Introduction
The control of development, widely defined to include both ‘operational development’ and ‘the making of a material change of use’ (s. 55(1)), by the requirement to obtain planning permission authorising the carrying out of that development (s. 57) is the subject of perennial legislative tweaking.
Two important ‘tweaking mechanisms’ are: the Town and Country Planning (Use Classes) Order 1987 and the Town and Country Planning (General Permitted Development) (England) Order 2015, the Use Classes Order and the GPDO, respectively. Whilst there is a complex web of relationships, use classes are quite separate from PD rights. If land (defined to include buildings) is in use for a defined use within the Use Classes Order, then a change of use to any other use within that use class is expressly stated not to constitute development (s. 55(2)(f)). Hence, planning permission is not required.
What is New? Use Class E
With effect from 1 September 2020, Use Classes A1 (shops), A2 (professional and financial services), A3 (restaurants and cafés), B1(a) (offices), B1(b) (research and development), B1(c) (light industry), and D(1) (non-residential institutions – commercial, business and service uses) have been amalgamated to create a new Use Class E. The laudable aim being to help reinvigorate the high street by introducing flexibility so that any use within the above list may now be changed to any other such use without the need to apply for, and obtain, planning permission.
Unintended Consequences
This new flexibility could, however, be used in out-of-town locations, say at retail or business parks, and to the detriment of the high street.
The ‘town centre first’ policy approach to retail, which has been a feature for the past 30 years, could be undermined. Conversions from, say, office use to retail could drive footfall away from the high street rather than bringing it back. Additionally, the diversity of uses – a characteristic of our most successful high streets – could also be harmed.
PD Rights – the Context
Permitted development rights (PD rights) automatically grant planning permission (subject to the possibility of their having been removed) for myriad types of development – both ‘operational’ and ‘material change of use’ – which are regarded as small scale and innocuous.
In 2013, the GPDO was expanded to include a new PD right to covert offices to residential use. This has proved controversial as some have been of poor quality (building materials, lack of light, and well below the nationally prescribed minimum space standard). The risk is of creating ‘modern slums’ in the eyes of some critics. Additionally, a tiny fraction – less than 0.5% of the stock added in London – has been affordable housing. This is because there is no planning policy obligation upon the developer to provide affordable housing as part of the development, secured by a s.106 planning obligation. The loss of (or very much reduced) control by local authorities has hindered the policy aspiration of building of mixed communities and at a net loss estimated at circa. £50 million.
The Right to Rise
With effect from 1 August 2020, and the coming into force of parts of the Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020, a new Part 20: Construction of New Dwelling-houses, Class A: New dwelling-houses on detached blocks of flats, hit the statute book.
As is common, the permitted development right itself is first described – broadly speaking, works for the construction of up to two additional storeys of new dwelling-houses immediately above the top most residential storey of a purpose-built, detached block of flats. Then follows what is not permitted (restrictions or limitations) from (a) – (o); together with a list of conditions and the procedure for obtaining prior approval.
To what extent this new PD right (conceived before we had even heard of COVID-19) is taken-up remains to be seen. There are certainly airspace development evangelists out there.
Conclusion
Both the new Use Class E and the new PD right to rise are, if used appropriately, capable of helping to re-invigorate our high streets and ameliorate the housing shortage. Whether these new opportunities will be exploited for good or ill only time will tell.
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