Explanation of new planning regulations
The Government introduced the following statutory instruments in July and August 2020:
Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020
Permitted development rights allow certain building works and changes of use to be carried out without requiring a planning application. The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 introduced new permitted development rights for expanding buildings upwards. This order was laid on 21 July 2020 and came into force on 21 August 2020. The Government’s explanatory memorandum summarises the new permitted development rights created by this order:
This order amends the Town and Country Planning (General Permitted Development) (England) Order 2015 (S.I. 2015/596) to introduce a permanent permitted development right to allow existing houses to be extended to provide more living space by constructing additional storeys.
This order also introduces permanent permitted development rights to allow the construction of additional storeys on free standing blocks and on buildings in a terrace that are houses or in certain commercial uses, and in mixed uses with an element of housing, to create additional self-contained homes. This means that a full application for planning permission is not required for these types of development, while at the same time allowing for local consideration of key planning matters.
The order is the second of two changes to the permitted development rights for the upward extension of buildings introduced by the Government. Earlier in the year, the Government introduced the Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020. These regulations established a new permitted development right allowing up to two additional storeys to be constructed on purpose-built blocks of flats. These were debated separately in the House of Lords on 10 September 2020.
The Government has argued these changes will provide the following benefits:
[they] will give homeowners the freedom to grow their home as their family grows. They will support development on brownfield land—making better use of our towns and cities—and, critically, create jobs for small builders and construction workers.
Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020
The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020 was also laid on 21 July 2020 and came into force on 31 August 2020. It creates a further new permitted development right, summarised in the Government’s explanatory memorandum:
[the Order] introduces a new permanent permitted development right to allow for the demolition of certain types of buildings and replacement build as residential to create new homes, while allowing for local consideration of key planning matters.
The Government has argued these changes will bring about the following benefits:
This reform will support the brownfield regeneration of our towns and cities by allowing vacant and derelict buildings to be repurposed quickly for much-needed housing. By developing on brownfield land, we can protect more of our green spaces and the green belt. They will also create opportunities for construction work as the economy recovers post COVID, saving the livelihood of construction workers and boosting local economies.
Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020
The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 makes changes to the use class system in England. Use classes group together different common uses of land and buildings for the purposes of granting planning permission. This order was laid on 21 July 2020 and came into force on 1 September 2020.
The Government’s explanatory memorandum summarises the changes made by this statutory instrument:
These Regulations amend the Town and Country Planning (Use Classes) Order 1987 (1987/764) (the ‘Use Classes Order’) as it applies to England. The Use Classes Order groups different uses of buildings and other land into use classes. A change of use within a single use class is not considered to be development and therefore does not require planning permission. The changes made by these Regulations create new use classes in relation to England contained in the new Schedule 2 to the amended Order.
The House of Lords Secondary Legislation Scrutiny Committee has summarised the specific changes made by the order as follows:
[the order] 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. The Ministry of Housing, Communities and Local Government (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. The MHCLG says that because planning permission will no longer be required, businesses will have greater freedom to adapt to changing circumstances.
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.
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.
Town and Country Planning (Use Classes) (Amendment) (England) (No. 2) Regulations 2020 and Town and Country Planning (Use Classes) (Amendment) (England) (No. 3) Regulations 2020
Two further regulations were introduced to correct deficiencies in the above Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020. These were:
- The Town and Country Planning (Use Classes) (Amendment) (England) (No. 2) Regulations 2020
- The Town and Country Planning (Use Classes) (Amendment) (England) (No. 3) Regulations 2020
Both were enacted immediately prior to the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 coming into force on 1 September 2020.
These statutory instruments were all introduced using the ‘made negative’ procedure. This means they did not require parliamentary approval before becoming law and could come into force at any time after being laid before Parliament. Either House can pass a motion to annul made negative instruments within a specified objection period.
The objection period for all of these statutory instruments has now passed. However, Lord German (Liberal Democrats), a member of the Secondary Legislation Scrutiny Committee, has moved a ‘regret motion’ regarding the instruments, due to be debated in the House of Lords on 27 October 2020. This motion would have no impact on the legal status of the regulations, but does allow members to express their opinion on them. In the motion, Lord German stated that he believed it “would have been more appropriate to have brought forward such substantial and wide-ranging changes to the planning system in primary legislation”.
Responses to the changes
The changes to permitted development rights have been criticised by the Local Government Association. It has argued:
Nationally prescribed permitted development rights disempower communities and local councils. The approach inhibits local government’s ability to make decisions on behalf of their communities based on their local knowledge and evidence.
The Royal Town Planning Institute, Royal Institute of British Architects, Royal Institution of Chartered Surveyors and Chartered Institute of Building have also raised concerns about how these changes have been implemented. In addition, they raised concerns about the “potential impact on the quality of life of future residents and local communities” of these changes.
Baroness Thornhill (Liberal Democrat), a vice-president of the Local Government Association, asked an oral question in the House of Lords on these changes to planning rules on 28 July 2020. She asked the Government how it intended to measure the impact of these changes on communities. Lord Greenhalgh, Minister of State at the Ministry of Housing, Communities and Local Government, told the House:
The new permitted development rights and changes to the use classes order that we announced on 21 July will reduce planning bureaucracy, speed up housing delivery, support homeowners and families, and help to renew our town centres. We keep all new policies under review, including in respect of their impact on housing delivery and the wider community.
It published the following summary of its concerns:
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 Joint Committee on Statutory Instruments has also drawn the Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020 to the special attention of both Houses. It said the Government needed to explain further:
[…] what steps—if any—the developer must take to mitigate adverse impacts on existing residents in those cases where the new development is in a partly or wholly residential area.
On 30 September 2020, the House of Commons debated separate Labour motions to annul the Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 and the Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020.
During the debate, Mike Amesbury, the Shadow Housing, Communities and Local Government Minister, criticised the changes. He accused the Government of allowing the creation of “poor-quality housing” by:
Bypassing the local community, local democracy and local control: by adding new units on top of flats; by allowing developers to demolish and rebuild empty buildings; and by allowing people to add multiple floors to their homes […].
Christopher Pincher, Minister of State at the Ministry of Housing, Communities and Local Government, responded by arguing that it will stimulate the construction industry:
These regulations that we are debating tonight are important levers in our ambitions to build, build, build as we recover from the economic effects of Covid-19. They encourage developers and property owners to see the opportunities that already exist to increase housing delivery by the more imaginative use of existing buildings. That includes building in airspace or demolishing and rebuilding vacant buildings.
- The motion to annul the Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 was defeated by 329 votes to 207 votes.
- The motion to annul the Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020 was defeated by 333 to 205.
- House of Commons Library, Planning for the Future: Planning policy changes in England in 2020 and future reforms, 8 October 2020
- Ministry of Housing, Communities and Local Government, ‘Quality standard of homes delivered through change of use permitted development rights’, 21 July 2020
- Lichfields, ‘Fundamental changes to high street use classes’, 22 July 2020
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