New permitted development right for “emergency” development

As cases of COVID-19 continue to rise, more people are in need of urgent medical attention. This has put immense pressure on the NHS. The ExCeL exhibition centre, which normally plays host to lifestyle shows, expos and conferences, has already been converted into the temporary NHS Nightingale Hospital with space for up to 4,000 beds, making it the largest field hospital in the UK. However, as the pressure continues to grow, more emergency facilities may be needed.

In response to this, the government has today published the Town and Country Planning (General Permitted Development) (Coronavirus) (England) (Amendment) Order 2020 (the “Order”). This creates a new permitted development right (“PDR”) authorising “emergency” development by local authorities and health service bodies. The new PDR comes into force at 10.00 am tomorrow, 9 April 2020.

Many owners of commercial buildings that cannot currently be used as a result of social distancing rules are considering whether their premises can be put to good use to help the NHS. This new PDR will enable such temporary changes of use to be made without having to make a planning application for the temporary development and without worrying about the need to obtain a future planning permission to authorise a change back to the original use of the building.

We set out below a summary of what is permitted:

• Development by a local authority or health service body on land owned, leased, occupied or maintained by it is permitted if it is for the purposes of: (i) preventing an emergency; (ii) reducing, controlling or mitigating the effects of an emergency; or (iii) taking other action in connection with an emergency.
  • An "emergency" means "an event or situation which threatens serious damage to human welfare in a place in the UK".
  • An event or situation which threatens serious damage to human welfare is one which involves or may cause: "loss of human life; human illness or injury; homelessness; damage to property; disruption of a supply of money, food, water, energy or fuel; disruption of a system of communication; disruption of facilities for transport; or disruption of services relating to health."
  • Only “local authorities” and "health service bodies" (as defined in the Order) can rely on this PDR.
• Development under the new PDR is not permitted if any part of the development is on land which is or forms part of a military explosives area, a SSSI or contains a scheduled monument; is within five metres of the curtilage of a dwellinghouse; or exceeds certain height restrictions.  In addition, any moveable structure, works, plant or machinery required in connection with the development must not be located within 10 metres of the curtilage of a dwellinghouse or within 5 metres of any boundary of the land.
• Development under the new PDR is permitted subject to three conditions, which are:
  • If the developer is not the local planning authority, it must as soon as reasonably practicable after commencing development notify the local planning authority of the development;
  • The use of the land for the purposes authorised by the Order must cease on or before 31 December 2020; and
  • Within 12 months of the use ceasing, any building, works, plant, machinery, structure and erection must be removed and the land must be restored to its former condition or such other state as may be agreed in writing with the local planning authority.

This new PDR will enable local authorities and health service bodies to change the use of existing buildings, or erect new temporary buildings or structures to provide health facilities such as temporary hospitals, coroner facilities, mortuaries, testing units, storage facilities, and distribution centres for food and other commodities. It also recognises the need for plant, machinery and hard surfaces for parking and storage and allows the change of use of existing buildings such as hotels to provide temporary accommodation for staff, volunteers in the health sector and those who may be homeless.

The local authority or health service body does not need to “own” the land to rely on this PDR as the Order specifically refers to land which is “owned, leased, occupied or maintained by it.”  The Order will therefore enable existing buildings or land to be used where the relevant body has been granted a temporary licence to occupy.

The scope of this PDR is very wide given the broad definition of "emergency". However, because the longstop date is 31 December 2020, in practice it is only likely to be used for coronavirus-related development. The explanatory memorandum recognises that there is a need for a broad PDR because it is difficult to fully predict the types of development that may be required.

Property owners will need to consider a number of issues before proceeding with development:

1. Check the terms of the Order carefully to ensure that the whole development falls within it. The restriction on development within five metres of a dwellinghouse (or ten metres for any moveable structure, works, plant or machinery) could catch some changes of use of commercial buildings in residential areas, for example. If the stated conditions are not met then a planning application will be required unless other PDR are available.
2. Consider whether the proposals require an Environmental Impact Assessment (“EIA”). The PDR will not be available if the development is EIA development pursuant to Schedule 1 or Schedule 2 of the EIA Regulations.
3. Make sure that the local planning authority is notified of the development as soon as practicable after it is commenced – although prior approval is not required, notification by the developer is one of the requirements for the PDR to apply.
4. Take advice on whether any other consents are required. The PDR only grants planning permission for emergency development. Listed building consent must still be obtained if the development involves alterations to a listed building. Advertisement consent may be required for any new signage. Environmental permits may also be required if, for example, the use involves the storage of any hazardous substances.
5. If the property is held under a lease, check whether the permitted use covenant allows the temporary use and obtain your landlord’s consent if it does not. Similarly, if the property is subject to a mortgage or charge, check the terms of your finance documents and obtain the lender’s consent where necessary.
6. The development must be by a local authority or health service body on land that is owned, leased, occupied or maintained by it, so a short-term lease or licence will be required if the land is not already owned by one of those bodies.
7. The Order provides for a time limited right that will cease to have effect after 31 December 2020. Should the facilities be required beyond 31 December 2020 then a planning application may need to be submitted. The practicalities of this should be considered in any lease negotiations with the local authority or health service body.
8. Check your insurance policy in relation to the property and notify or obtain consent from your insurer to ensure that the policy isn’t avoided.

This PDR is very welcome and will avoid planning applications having to be processed by local planning authorities for development that is urgent, necessary and plainly in the public interest. At a time when the NHS and other public authorities are stretched to the limit, we are seeing many private property owners ask what they can to do assist. It is very encouraging to see the planning system respond so quickly to ensure that the real estate sector can play its part in tackling this national emergency.

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