Consultation on updated permitted development rights: changes to residential use and agricultural diversification

The Department for Levelling Up, Housing and Communities has launched a consultation on amendments to permitted development (“PD”) rights in England, by updating the Town and Country Planning (General Permitted Development) (England) Order 2015 (the “GPDO”). In this guest blog, my colleague Matthew Tucker summarises the proposals.

Primarily, the proposals affect housing and agricultural PD rights. The headline changes are a broad expansion of the right to change commercial uses to residential (including doubling the floorspace limit to 3,000sqm) and an expansion of the right to change agricultural uses to commercial, categorising additional rural uses as agricultural and some heavy industrial uses as commercial.

Consultation

The consultation was published on 24 July 2023, and will be open for responses until 25 September 2023. The consultation can be accessed online here.

The Government’s stated intention is to use expanded PD rights to promote the delivery of well-designed development, support housing delivery, the agricultural sector and economic growth. The strategic intention is to support growth by removing the need to submit a planning application for specific categories of development.

As part of the consultation, the Department for Environment, Food and Rural Affairs (“DEFRA”) has included a call for evidence in relation to the agricultural economy. The intention of that call for evidence is to understand what farmers and land managers need in planning terms to diversify their businesses.

The consultation has been published in parallel with a statement from the Secretary of State for Levelling Up, Housing and Communities. The statement includes a summary of the Government’s long-term plan for housing, including:

• New plans for development including a new residential and commercial quarter in Cambridge, 65,000 new homes across the Docklands area in East London, and infrastructure proposals in West Yorkshire and Cambridge;
• A new squad of leading planners and other experts who will work across the planning system to unblock major housing developments;
• A new £24 million Planning Skills Delivery Fund;
• Increased planning application fees; and
• Mandatory second staircases in residential buildings above 18m in height.

Housing changes

Consultees’ views are sought on a variety of housing reforms. The most significant of these changes are:

• Extending the PD right to change Class E (Commercial business and service) uses to residential uses, using Class MA of Part 3 of the GPDO. The current floorspace cap for changes of use of this type is 1,500sqm, the consultation seeks views on a cap of 3,000sqm or no cap at all. No cap would represent a significant relaxation of the current rules.
• The current rules include a requirement for premises to be vacant for 3 continuous months before seeking prior approval for a change of use from Class E to residential. This was considered a necessary safeguard against businesses being displaced, but the consultation proposes removing this requirement.
• The current rules prevent changes of use using PD from Class E to residential in specific sensitive areas (known as “Article 2(3) areas”), which include areas of outstanding natural beauty, World Heritage Sites and conservation areas. The consultation proposes that the PD right for changes of use from Class E to residential could extend to some of these Article 2(3) areas (save for World Heritage Sites).
• A new PD right is proposed which would enable hotels, boarding houses or guest houses (in Use Class C1) to change use to residential. One mechanism which is suggested to achieve this would be to expand Use Class E; this would enable owners to hotels significant additional flexibility in changing the use of those properties within Use Class E to other commercial uses.

These proposed changes are designed to expand the ability of landowners and developers to change uses to residential without needing to seek planning permission. While the changes may have the effect of simplifying the overall process and could potentially deliver additional housing, the counterbalance is that protections and bulwarks included in the PD regime previously are proposed to be watered down or removed altogether.

Agricultural changes

The most significant proposed changes to agricultural PD rights are:

• An expansion of the existing permitted development right for the change of use of agricultural buildings to Class E, using Class R of Part 3 of the GPDO. It is proposed that other predominantly rural uses, including forestry and equestrian uses, could benefit from this right.
• Changes of use to outdoor sports, recreation and fitness uses would also be permitted.
• A change of use to general/heavy industrial uses (which could cause detriment to the amenity of the local area) would also be permitted, subject to the restriction that only the processing of raw goods produced and sold on the site (excluding livestock) would be authorised in this way.
• Changes of use to a mix of permitted uses (e.g. a hotel and farm shop) would also be permitted.
• The total floorspace which can be changed under Class R of Part 3 would be extended from 500sqm to 1,000sqm. The Government is also considering varying the trigger point at which a developer must seek prior approval for impacts of the proposed development from the current trigger of 150sqm of floorspace.

These proposed changes would represent a broad expansion of agricultural PD rights, in a way which is likely to lead to potentially significant amenity impacts being subject to reduced planning controls (particularly in the case of agricultural to industrial changes of use).

Other changes

A number of other miscellaneous points are included in the consultation, as follows:

• Where prior approval is required from the local planning authority in relation to matters of design and external appearance (as part of existing PD rights), the Government has proposed to replace these matters with consideration of design codes, where they apply locally.
• The PD right for expanding Class E uses (under Class A of Part 7 of the GPDO) would be changed from a maximum expansion of 50% of existing floorspace or 100sqm to 100% or 200sqm.
• The PD right enabling new industrial or warehousing buildings (under Class H or Part 7 of the GPDO) would be changed from a maximum floorspace of 200sqm to 400sqm. For expansions to existing industrial or warehousing buildings the threshold would be expanded from 50% of existing floorspace or 1,000sqm to 75% or 1,500sqm.
• The Government is considering expanding the PD right for the temporary use of land for any purpose for up to 28 days a year, with 14 days being permitted for markets, motor car and cycle racing (under Class B of Part 4). The Government is proposing to expand the number of days on which a market can be held.
• The PD right enabling the expansion of prisons (Class M of Part 7) would be expanded to include open prisons.
• DEFRA are seeking detailed evidence (including case studies) from consultees, on the topics of nature-based solutions, farm efficiency projects, and diversification of farm incomes.

Overall, the consultation represents proposals for the substantial expansion of the PD system, deliberately structured to enable the delivery of housing and expand the flexibility of agricultural uses. The consultation is open for responses until 25 September 2023.

This update was written by Matthew Tucker. Should you have any queries relating to planning, viability or planning obligations generally, please do not hesitate to contact either Matthew or Gary Soloman.