Raising the roof – new permitted development right allows upwards extensions

The idea of introducing a new permitted development (PD) right to allow certain buildings to be extended upwards has been considered for some time. The Autumn 2018 Budget announced a consultation which included proposals to allow certain buildings to be extended upwards to provide new housing. Since then, upwards extensions have been mentioned on numerous occasions, for example in written statements (see our blog post of 21 March 2019), at conferences and in policy papers. A new PD right has now been introduced allowing upwards extensions for new homes, alongside confirmation by the government that we can expect more PD rights to be announced soon in addition to wholesale reform of the planning system. This post considers the scope and effect of the new upwards extensions PD rights.

PD right and restrictions

Regulation 22 of the Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020 (the Regulations) amends the Town and Country Planning (General Permitted Development) (England) Order 2015 (the GPDO) to introduce a new PD right allowing the construction of up to two additional storeys of dwellinghouses to the top most residential storey of an existing purpose-built, detached blocks of flats. This new PD right comes into force on 1 August 2020.

There are a number of restrictions to the PD right, including that development is not permitted if:

• the building is less than three storeys in height;
• the height of the extension would be more than seven metres higher than the existing roof or the floor to ceiling height of any new floors would be more than three metres in height;
• the extended building would be more than 30 metres in height;
• the building was constructed before 1 July 1947 or after 5 March 2018;
• the building is located within a site of special scientific interest; or
• the building was converted to housing under the certain classes of PD rights in Part 3 of Schedule 2 of the GPDO allowing change of use to dwellings, including changing offices to dwellinghouses.

The nature of these restrictions will limit the use of the PD right. For example, because it only applies to buildings that are three storeys or more, but the total extended height must be less than 30 metres (about 10 storeys high), it will only apply to mid-rise developments. The fact that the PD right does not apply to buildings built after 5 March 2018 will also limit its applicability. It will be interesting to see whether the PD right is widely used by developers in practice.

Prior approval and quality

Development under the PD right is subject to prior approval from the local planning authority (LPA). Factors to consider in the prior approval application include transport and highways impacts, flooding risks, the external appearance of the building, the provision of adequate natural light in all habitable rooms and the impact on the amenity of the existing building and neighbouring premises including overlooking, privacy and loss of light. The developer’s application for prior approval must be accompanied by various documents and information such as floor plans indicating the dimensions of each room, windows, doors and walls.

The prior approval process is positive from the perspective of developers because applications will incur lower fees. However, LPAs may not welcome these changes as they may be required to consult on a broad range of factors when deciding whether to grant prior approval, but will receive less by way of fees than for a full application. They will also have much more limited discretion over the approval of applications.

On a positive note, it can be hoped that the range of factors to consider in the prior approval process will have a positive impact on the quality of the upwards extensions. Notably, LPAs must refuse prior approval if adequate natural light is not provided in all the habitable rooms of the dwellinghouses. The Regulations have also amended certain other classes of PD rights in Part 3 of Schedule 2 of the GPDO to include this adequate natural light requirement. This change responds to criticisms that some permitted developments created very poor quality living conditions due to the lack of access to natural light.

Developer contributions

As LPAs can’t secure planning obligations on a prior approval application, developers will not be required to provide a percentage of affordable housing units when using this PD right. This may be positive for developers, but less helpful for LPAs trying to meet affordable housing requirements.

Developers should note that, if a CIL charging schedule is in place, CIL will be payable on the net increase in useable floorspace. Developers will need to factor this in as a cost consideration.

Future reform

We are expecting an imminent announcement on the government’s proposals for significant reform to the planning system as a whole. The government has also made it clear that they will expand PD rights further including to widen the range of commercial buildings permitted to change to residential use, widen the upwards extension rights and introduce a PD right to demolish commercial buildings for residential development. Time will tell how this wide expansion of PD rights will sit within the new planning framework proposed by the Government.

Overall, although landlords with suitable portfolios may be assessing whether the new upwards extensions PD right can help to maximise their assets, considering the conditions and limitations on the right it may not be widely used in practice. Nor will it necessarily increase the availability of affordable housing, as developers are under no obligation to provide affordable units. Furthermore, the prior approval process will be another drain on stretched local authority planning departments, and may not allow them to take into account all the impacts of the proposed development on the local area. For these reasons, we question whether the measure will effectively achieve the government's aim of alleviating the pressure on housing supply.

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