On 8 June 2021, the House of Lords is scheduled to debate two motions relating to the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021.

Ministers signed the order into law on 30 March 2021 and laid it before Parliament the following day. Because the order is subject to the ‘made negative’ procedure, either House has until 11 June to object to it remaining law beyond that date. It came into force on 21 April.

The two motions would differ in effect if approved.

Baroness Pinnock, Liberal Democrat spokesperson for communities and local government, has tabled a fatal ‘prayer motion’. If agreed, this would overturn the instrument and stop it from remaining law. The objections to the order set out in the motion focus on the grounds that it:

  • introduces a significant policy change without being subject to sufficient parliamentary scrutiny;
  • affects the ability of communities to have a say in important changes to their local areas; and
  • does not present an effective or sustainable solution to the housing crisis.

Meanwhile, Shadow Chief Whip Lord Kennedy of Southwark, who also serves as Labour spokesperson on housing, communities and local government issues, has tabled a non-fatal ‘regret motion’. If agreed, this would allow the House to put its concerns about the instrument on the record but would not stop it from having legal effect. The motion regrets that the order would “remove the voice of local communities, result in a new swathe of poor-quality housing, and detrimentally impact the prosperity of high streets”. In addition, it states that the changes “have been introduced with insufficient parliamentary scrutiny” and calls on the Government to withdraw the order.

What does the instrument do?

The order introduces several changes to local planning legislation. Overall, it aims to:

  • make it easier to change the use of buildings from commercial to residential use with the aim of supporting the economic recovery from the pandemic;
  • expand existing schools, colleges, universities, hospitals and prisons; and
  • further develop operational facilities at ports, as part of the Government’s programme for freeports.

The Ministry of Housing, Communities and Local Government contends these changes will help to support high streets and housing delivery, while also allowing for the “fast track delivery” of valued public buildings.

The instrument also makes full local planning consideration a statutory requirement before any relevant statues, memorials or monuments can be removed. This implements a “retain and explain” policy for historic statues, plaques and other monuments the Government announced in January 2021.

The changes would apply in England only.

Changing the use of buildings from commercial to residential use

The order introduces a new permitted development right to allow the use of a building to be changed more easily from commercial, business and service use to residential use. This would facilitate a change to residential use for a wider range of commercial buildings, including shops, cafes, and gyms, without the need for a full planning application. Such changes would be subject to certain conditions, including:

  • The building must have been in commercial, business and service use for two years before benefiting from the right.
  • The right requires the building to have been vacant for three continuous months immediately before the date of application. Any time that the premises have been closed because of pandemic-related restrictions will not count towards this period.
  • No more than 1,500 square metres of floorspace in any building may change use.
  • Homes delivered are required to meet, as a minimum, the nationally described space standards.
  • The right is subject to prior approval by the local planning authority in respect of matters such as contamination; impacts of noise from existing commercial premises; and adequate natural light in all habitable rooms.

The right applies in conservation areas, but not in other areas such as national parks and areas of outstanding natural beauty.

The changes follow a consultation that ran from 3 December 2020 to 28 January 2021.

The Government has said that separate legislation to be introduced later in 2021 will amend the right to introduce an additional ‘prior approval’ in relation to the fire safety of buildings. Legislation will also be introduced “at the first available opportunity” to provide for a fee payable based on the number of dwellings made available.

Schools, colleges, universities, hospitals and prisons: further development

The order amends permitted development rights to support the extension of school, college, university, hospital and prison buildings. The footprint of any buildings to be developed may be up to 25% of the cumulative footprint of existing buildings on site on 21 April 2021 or up to 250 square metres, whichever is greater. Height restrictions also apply. The Government says the changes will help implement the ‘Project Speed’ agenda set out in a speech delivered by Prime Minister Boris Johnson on 30 June 2020.

The order introduces a prior approval process for the erection, extension, or alteration of university buildings, given their potentially sensitive city centre locations and/or large scale. A fee is set to be introduced via the same instrument that will introduce the commercial to residential change of use fee.

Ports: further development

The order amends permitted development rights to provide the operators of “dock, pier, harbour, water transport, canal or inland navigation undertakings” with greater flexibility to develop their operational services and facilities. This follows commitments made in the Government’s response to a consultation on freeports to align development rights for ports with those enjoyed by airports.

Statues, memorials and monuments

The order exempts certain statues, memorials and monuments from the permitted development right allowing the demolition of buildings. This means full planning applications for local planning permission are now required to demolish relevant statues, memorials and monuments. All those in place for at least 10 years are in scope unless they are subject to a listed exception, for example being within the grounds of a museum or art gallery. The change follows a written statement made in January 2021.

The Government has separately introduced a requirement for local planning authorities to notify relevant planning applications to the secretary of state. This will allow decisions to be called in where “considered appropriate”.

What parliamentary scrutiny has there been to date?

The House of Lords Secondary Legislation Scrutiny Committee reported the order in its 52nd report of the 2019–21 session, published on 22 April 2021. After examining the measures, the committee questioned whether they should have been brought forward in a bill:

We have previously expressed concern about using secondary legislation to bring about significant changes to planning legislation during the pandemic. Given that the changes made by this order are permanent and may have a considerable impact on high streets and the development of key infrastructure, such as schools, colleges, universities, prisons and ports, the instrument again raises the question whether it would have been more appropriate to make these changes in a bill, enabling Parliament to scrutinise the changes and their potential impact more fully. This is particularly apposite as the instrument also puts the Government’s approach to protecting historic statues, including those which may be controversial, on a statutory footing.

As a result, the committee said that it was drawing the instrument to the attention of the House:

This order is drawn to the special attention of the House on the ground that it is politically or legally important and gives rise to issues of public policy likely to be of interest to the House.

The Joint Committee on Statutory Instruments reported the order in its third report of the 2021–22 session, published on 28 May 2021. It reported the order to both Houses on the grounds that articles 9 and 10 were defectively drafted. The report noted that the committee had asked the Ministry of Housing, Communities and Local Government to explain the reasons for the errors and that it had both acknowledged and apologised for them. The report further noted that the department had undertaken to amend the instrument “at the first available opportunity, which is expected to be in the summer”.

Selected sector reaction

Changing commercial buildings to residential use

On 1 April 2021, four sector bodies wrote a joint letter condemning the changes permitting buildings to change from commercial to residential use. Leaders from the Royal Institute of British Architects (RIBA), the Royal Town Planning Institute (RTPI), the Chartered Institute of Builders (CIOB) and the Royal Institute of Chartered Surveyors (RICS) wrote:

Yesterday’s announcement aimed at allowing commercial premises to be converted into homes presents a risk for our nation’s town centres and small businesses. Without the usual checks and balances through the normal planning process and without the facility for local communities to comment on proposals, this risks creating poor-quality housing.

They added that none of the safeguards they had previously suggested appeared to have been given consideration. In addition, they wrote that “no basic impact assessment of how this might harm our communities appears to have been done” and alleged the Government had “ignored the responses to its own consultation to rush this substantial change to our highstreets during parliamentary recess”. The letter’s authors contended the change “fails to consider the public good and demonstrates a lack of any forethought for those who will be affected”. In conclusion, they added: “This is not only a failure to ‘level up’ but a threat to our local communities”.

RIBA and RTPI also made separate statements:

Statues, memorials and monuments

Bodies such as the Museums Association had previously expressed “serious concerns” about proposed changes to planning rules for historic statues, plaques and memorials. In an article published on 12 March 2021, the body said:

Decision-making on the future of historic statues, plaques and memorials should be more sophisticated than a simple focus on retention. This is not to say that there are not cases where ‘retain and explain’ may be an appropriate course of action, but it is not the only course of action.

The association added that having a blanket retain and explain approach was a “blunt instrument which is insufficiently concerned with democratic process”. It said the policy “in particular disregards local community consent for the continued display of a statue, plaque or memorial”.

The Government’s explanatory notes for the order, published later in March, explained that a specific exception had been included in the new rules “to protect the curatorial independence of museums and art galleries”.

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Cover image by Kevin Grieve on Unsplash.