On 10 September 2020, the House of Lords is due to debate a motion by Lord German to take note of the Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020.

The instrument was laid before Parliament on 24 June 2020 and is already in force. It is subject to the made negative procedure. It will remain in law unless either House rejects the instrument within 40 days of it being laid (allowing for recess days).

The regulations make changes to planning legislation as part of the Government’s economic renewal package in response to the coronavirus outbreak. The regulations apply to England only.

What does the instrument do?

The instrument creates new permitted development rights (PDRs), alongside other changes to the planning legislation. A permitted development right (PDR) is a right to carry out certain building works and changes of use without having to make a planning application. These regulations create two new PDRs:

  • a PDR to allow a market to be held by or on behalf of a local authority for an unlimited amount of days in a certain period; and
  •  a permanent PDR to allow additional storeys to be constructed on existing blocks of flats to create new homes.

The instrument also provides for an additional number of days for which land can be used by developers temporarily, without planning permission, for any purpose from 1 July 2020 to 31 December 2020. In addition, it makes some minor changes and clarifications, including limits on the compensation liability of local authorities.

Permitted development right to hold a market and temporary use of land

Under existing regulations, developers can use land for any purpose for 28 days, of which 14 days can be used to hold a market or motor sports event. This right has typically been used to hold outdoor events such as food or arts festivals within the local community. Landowners can also use this right to host motorcycle races on their land, provided that the land is not near a site of special scientific interest.

Under these new regulations, a developer is given an additional 28 days, of which 14 days can be used for a market or motor sports event, to be used between 1 July 2020 and 31 December 2020. Therefore, in total under these new regulations, a developer has 56 days to use land for any purpose, of which 28 days can be used to hold a market or motor sports event, without applying for planning permission.

Additionally, the regulations allow local authorities (or those acting on behalf of a local authority) to hold a market for an unlimited number of days, between 25 June 2020 and 23 March 2021. The Government has explained these measures “will enable the provision of additional space for markets for the sale of food, drink and other goods and holding outdoor events”.

The regulations were brought into force on 25 June 2020, the day after the instrument was laid. The Government said in its Explanatory Memorandum that this was to support businesses reopening, following the lifting of certain coronavirus restrictions.

Permitted development right for the construction of new homes on detached blocks of flats

The instrument also introduces a new PDR for the construction of new homes on detached blocks of flats. The Explanatory Memorandum gives further information:

The right allows the construction of 2 additional storeys of new homes on the topmost residential storey of existing, detached, purpose-built blocks of flats of 3 storeys or more above ground level, together with engineering operations, replacement or installation of additional plant, construction of safe access and egress and construction of ancillary facilities, if necessary. The right does not allow for these additional works to be undertaken without the construction of the new storeys and homes.

The Explanatory Memorandum goes on to state that the newly extended building cannot exceed 30 metres and must comply with the building regulations. The developer must also produce a report detailing the proposed hours of building operation and what actions will be taken to mitigate disruption to occupiers of the building and its neighbours.

Although planning permission is not required, the developer must obtain prior approval from the local planning authority (LPA). The LPA will consider issues such as potential transport and highways impacts, as well as contamination and flood risks. In addition, the LPA must ensure the proposed developments provide adequate natural light for occupants. The LPA is required to make a decision on an application for prior approval within eight weeks.

These regulations were brought into force on 1 August 2020.

What is the background to the instrument?

The Government had previously indicated its intention to bring forward a PDR on housing development. The National Planning Policy Framework, published by the Ministry of Housing, Communities and Local Government (MHCLG) in February 2019, said planning policies should “support opportunities to use the airspace above existing residential and commercial premises for new homes”.

In October 2018, the MHCLG consulted on planning reform to high streets. As part of the consultation, the MHCLG proposed the creation of a new permitted development right to “extend certain existing buildings upwards to provide additional, well designed, new homes to meet local housing need”.

In its response to the consultation, the Government stated that more than half of respondents did not support the proposal. Some respondents raised concerns about:

  • communities and local planning authorities having no say over how and where a PDR might be applied;
  • the quality of homes delivered by building up;
  • how access and safety would be addressed; and
  • the impact on the existing occupiers and neighbours of the premises being extended.

However, the Government said it intended to take forward the proposed PDR for upward extensions. It said it will “continue to engage with interested parties on the technical details”.

Scrutiny of the instrument

In its report published on 9 July 2020, the House of Lords Secondary Legislation Scrutiny Committee drew the instrument to the special attention of the House of Lords.

The committee raised concerns about the introduction of a new permanent PDR for the construction of new homes. Its report highlighted the number of opponents to the plans during the consultation process in 2018 and listed their specific concerns. However, the report noted that the MHCLG said it “carried out further engagement with interested parties to inform the technical details of the proposal” after the initial consultation.

The committee concluded that:

Following concerns raised during consultation, the House may wish to explore further the absence of any requirement to provide or contribute financially to affordable housing and how neighbourhood and other concerns will be taken into account under the new lighter planning requirements for extending upwards existing purpose-built blocks of flats. The instrument is drawn to the special attention of the House on the ground that it gives rise to issues of public policy likely to be of interest to the House.

Image by AI Leino from Pixabay.