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FAQS on Covid-19 planning reforms

23 November 2020

The Government believes the planning system is ‘broken’ and in June the Prime Minister promised the most radical shake up of planning since WWII in order to get Britain building again. There followed a series of legislative changes over the summer to both Permitted Development Rights and to the Use Classes. The Government wants to introduce further reforms as set out within the white paper Planning for the Future and the consultation paper on Changes to the Current Planning System.

Below are FAQS relating to the legislative changes to planning that have come into effect this year.  We will issue follow FAQs once the anticipated reforms are finalised.

Time extensions for planning permissions

Q1: My planning permission is due to expire on 22 August 2020.  What do I need to do to keep my permission from lapsing?

A: Nothing – pursuant to Section 17 of the Business and Planning Act 2020 (“2020 Act”) there is an automatic extension of time in which to implement a planning permission until 1 May 2021. This automatic extension relates to all full planning permissions granted subject to a planning condition to start works between 19 August (this is when Section 17 takes effect) and 31 December 2020.

Q2: Planning permission for our new block of flats expired during lock-down on 6 June 2020 before we could commence works – is there a way of still being able to lawfully start works?

A: Yes - unimplemented planning permissions with time limits for implementation that expired between 23 March 2020 and 19 August 2020 are capable of being extended to 1 May 2021 subject to additional environmental approval (“AEA”) being granted. In order to secure AEA, an application will need to be made in writing and submitted electronically to the Council.  This will need to provide the information specified within the 2020 Act but there is no prescribed form for the AEA application.

Q3: Outline planning consent was granted a few years ago but the reserved matters were due to be approved by 1 April 2020 and since we had gone into lock-down the time period for their approval has now expired.  Can we take advantage of the time extension under the 2020 Act?

A: Yes - as the time limit extending implementation operates in exactly the same way as for full planning permissions.  This means the time for implementation is extended until 1 May 2020 but an application for additional environmental approval will need to be made since the expiry date was before 19 August 2020.

Q4: Do the time extensions to commence works extend to listed building consents?

A: Yes - all listed building consents with a time limit requiring implementation between 23 March 2020 and 31 December 2020 will benefit from an automatic extension until 1 May 2021. There is no need for any application to be made for additional environmental approval.

PD rights for upward extensions

Q5: I am the freeholder of a block of flats – is it right that I can now add two more storeys under permitted development rights? If so, what do I need to do?

A: Perhaps – from 1 August 2020 it will be possible to rely on the provisions under the Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020 to carry out works to construct up to two additional storeys of new flats immediately above the topmost residential storey of a block of flats.  However, there are a number of limitations on when and how such PD rights can be exercised. For example, the existing block of flats must have been built between 1 July 1948 and 5 March 2018 and the extended building would be more than 30m high (excluding plant). Various buildings are also expressly excluded such as those listed or within a conservation area.

In order to rely on the new PD rights is necessary to first apply for prior approval.  There is a prescribed list of matters that need prior approval including issues such as transport, external appearance and light (both to the new units as well as the impact on adjoining properties).

Q6: Can I build a residential extension on top of a commercial building that my company owns?

A: Perhaps - the Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 (“No. 2 Order”) will come into effect on 31 August 2020.  This introduces a new Class AA which allows for the construction of up to two new storeys of flats on top of detached buildings in commercial or mixed use.  If your building is not detached, a new Class AB permits the construction of new flats on top of terrace buildings (including semi-detached buildings) in commercial or mixed (including residential) use.

There are, however, a number of restrictions and conditions relating to reliance on the new permitted development rights including the need for prior approval from the Council.

Q7: Do the new PD rights for upward extensions include private residential dwellings?

A: Yes - the No. 2 Order allows for the enlargement of existing dwellings for either (a) up to two additional storeys, where the existing dwelling consists of two or more storeys; or (b) one additional storey, where the existing dwelling is one storey.  There are various restrictions relating to the new rights and prior approval is required from the Council.

Use classes changes

Q8: We occupy several retail units within a town centre – I understand the use classes have changed to allow more flexibility in changes of use that would suit us.  Is this correct?

A: Correct – the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (“Use Classes Regs”) will come into effect on 1 September.  This creates a new broad category of ‘commercial, business and service’ uses (Class E) which will allow greater flexibility for change between these three types of use with the aim of assisting with the rejuvenation of high streets and town centres.

For transitional purposes, the regulations provide for the existing range of permitted development rights for changes of use in the GDPO to be preserved until 31 July 2021. Individual buildings and uses will be able to exercise the permitted development right they were entitled to as on 31 August 2020.

Q8: We own several pubs and wine bars – will the changes in use classes affect us?

A: Yes - the changes to the use classes under the above Use Classes Regs remove pubs from use Class A4 and add it to the list of sui generis uses as set out in Article 3(6). As a result of this differing status any change of use will require planning permission.  However, there are the above transitional saving provisions in place until 31 July 2021

PD rights to demolish and re-build

Q9: I am thinking of buying a vacant office building near me that I would like to convert to flats.  The original building was quite small so I would like to build something larger.  Can I rely on the new permitted development rights to do this?

A: Partly – the Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020 takes effect on 31 August 2020 and introduces a new Class ZA.  This allows for the demolition of a single detached building in existence on 12 March 2020 that was used for office, research and development or industrial processes, or a free-standing purpose-built block of flats to be demolished and replaced by an individual detached block of flats or a single detached dwelling house.

However, the new building must be within the footprint of the original building with a maximum footprint of 1,000 square metres and be no higher than 18 metres. It is also worth noting that the original building must have been built before 1990 and have been vacant for at least six months before the date of application for prior approval.

CIL payments

Q10: As a small developer can I apply for any flexibility with CIL payments?

A:  Yes - The Community Infrastructure Levy (Coronavirus) (Amendment) (England) Regulations 2020 came into force on 22 July 2020.  These give CIL charging authorities a temporary discretion up until 31 July 2021 to defer CIL payments, to disapply late payment interest and surcharge payments and to credit interest already charged to small to medium sized developers (ie annual turnovers up to £45m).

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