Changes confirmed to permitted development rights and use classes

In our blog post of 10 December 2018 (see here), we discussed the potential impact on developers and landlords of changes to permitted development (PD) rights and Use Class A which were being consulted on by the government. Despite widespread criticism, and counter to some calls for a greater role for local authorities in securing the futures of their town centres through holistic town planning, in a Written Statement on 13 March 2019 James Brokenshire announced that the government is implementing the majority of the proposals. Some of the changes to PD rights are to be made later this spring; other changes, such as upward extensions for residential use, will be dealt with in further regulations in the autumn. We were also told that we can expect an Accelerated Planning Green Paper later this year. Whilst the changes are intended to "[simplify and speed up] the planning system, to support the high street, make effective use of land and deliver more homes", whether this can be achieved by these changes remains to be seen. This post discusses what the changes are, and what their impact could be within the context of wider change.

Changes resulting from this consultation

The changes which the government is progressing following the 'Planning reform' consultation include (see the Written Statement):

• New PD right for A1 (shops), A2 (financial and professional services) and A5 (hot food takeaways), betting shops, payday loan shops and launderettes to change to B1 (offices).
• New PD right to allow A5 (hot food takeaways) to change to residential.
• Extension of existing PD right allowing temporary change of use to a wider range of uses, including community uses, and for three, rather than two years.
• "Clarification on the ability of Class A uses to diversify and incorporate ancillary uses without undermining the amenity of the area" (although it is not clear what this will involve).
• New PD right to extend certain existing commercial and residential buildings for residential use. (This is one of the "more complex" matters that will be dealt with by regulations in the autumn.)
• Removal of existing PD right and associated deemed advertising consent for new telephone kiosks and amendment of existing right to install off-street electrical charging points to allow taller charging upstands.

The government has decided not to extend the existing PD right for change of use from storage to residential, so this will lapse on 10 June 2019.

Other changes we can expect

The government is going to consider further whether to implement a new PD right to demolish commercial buildings to enable them to be replaced with new homes, and intends to review residential conversion PD rights "in respect of the quality standard of homes", which may be a response to concerns raised in the consultation regarding design quality. It has also announced that it will publish "tools to support local authorities in reshaping their high streets" (particularly compulsory purchase and local development orders), and that it will publish an Accelerated Planning Green Paper later this year to help achieve "faster decision-making within the planning system". This is expected to respond to issues raised by the Rosewell Review of Planning Inquiries, and may also address some of the matters identified by the recent NAO report 'Planning for new homes' which investigated the effectiveness of the planning system.

Potential impact

These changes are intended to benefit struggling town centres, but they are likely to apply across the board (whether in, on-the-edge of, or out-of-town) and are unlikely to be restricted only to those town centres which suffer from high vacancy rates. Landlords and developers should in theory have more flexibility to change uses according to the needs of their portfolios and the centres they occupy, but the new PD rights are likely to be subject to detailed prior approval requirements which could detract from any apparent advantage over the traditional planning permission route. The changes to Use Class A could also have unintended consequences depending on the drafting of existing leases. Local authorities wanting to retain a town planning overview of their centres may still have the ability to use Article 4 Directions to suspend the new PD rights.

All in all, and contrary to opinion expressed by many about what is required to save failing town centres and protect the quality of new residential dwellings, the decision to progress the consultation proposals indicates a reluctance by the government to have faith in traditional town planning, instead giving the market increased power to respond to perceived need.

Author: Fiona Sawyer, Professional Support Lawyer, Planning, Real Estate

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