Martin Edwards looks at the changes made by a series of planning orders introduced by the previous government just before the dissolution of parliament
Key points
- New permitted development rights intended to boost economy
- Betting shops and payday loan shops excluded from change-of-use provisions
- It is important to inspect the fine detail of the changes
The devil is in the detail. As the last parliament drew to a close, the coalition tabled changes to the planning system that, for some, will have significant consequences. The Town and Country Planning (Development Management Procedure) (England) Order 2015 (“the DMPO”), the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the GPDO”) and the Town and Country Planning (Use Classes) (Amendment) Order 2015 (“the UCO”) were laid before parliament on 24 March and came into force on 15 April. To an extent, the GPDO and the DMPO were long overdue. They consolidate what had become cumbersome instruments following numerous amendments made over the years – the GPDO had not been consolidated for 20 years.
Policy changes
No single article can cover all the amendments introduced. However, it is clear from a reading of these instruments, and the accompanying explanatory memoranda, that some important policy changes were made with the stated objective of supporting growth in the economy. New permitted development rights were created, for example, to help businesses make the best use of their premises, to deliver more homes, to support high streets and retailers, to support the film and television industries, to continue to allow larger home and business extensions and to support sustainability through the reuse of buildings and the increased use of solar panels on commercial buildings.
A temporary three-year permitted development right has been created to allow B8 storage or distribution buildings to change to C3 residential use. The right is hedged with qualifications and so, as with the other new rights created, it will be important to study the criteria closely. For example, this new right is limited to 500 sq m, is subject to prior approval and only applies to buildings that were last in B8 use on or before 19 March 2014. Similarly, amusement arcades and casinos (which are sui generis uses) will be able to change to C3 residential use subject to various criteria and limitations.
Betting shops and payday loans
While A1 shops can now change to A2 financial and professional services, some high street uses lose out. Betting offices and payday loan shops have been removed from the A2 use class and have become sui generis uses. The UCO has been amended accordingly, although there are transitional provisions to cater for the situation where premises were already in the process of being converted. New outlets for these uses will now require specific grants of planning permission. Shops, financial and professional services, betting offices, payday loan shops and casinos can all be changed to A3 restaurants and cafes.
Home extensions
Illustrating the need to pay close attention to the detail of these documents, the current right for larger householder rear extensions has been extended until 30 May 2019, but one very subtle change may still catch some out. Under the old permitted development rights regime, wide freedoms to enlarge, improve or alter dwellinghouses were conferred, subject to a restriction in a condition that contained two requirements for it to operate. The enlarged part of the dwellinghouse must not extend beyond a wall which (i) fronts a highway and (ii) forms either the principal elevation or a side elevation of the original dwellinghouse. The new GPDO replaced the word “and” with “or”. Thus a two-stage test has been replaced with two separate tests.
Click and collect
Other new rights include one that allows retailers to erect click-and-collect facilities within the curtilage of their existing shop; for example, on car parks. Only one facility per retail premises is allowed and buildings will be limited to 4m in height with a gross floorspace of up to 20 sq m. Prior approval is required and the right does not apply in certain sensitive areas. This is an example of the planning system reacting positively to new activities – the increase in online shopping – which did not exist in 1995.
Other new rights include rights to install, alter and replace solar panels on the roofs of non-domestic buildings up to a capacity of one megawatt. Prior approval is required and measures can be taken to deal with the potential for any effects of glare on neighbours. Once again, this right will not apply in certain areas.
Development management
Finally, the 2010 DMPO has also been consolidated. Important changes include the introduction of the deemed discharge of planning condition, subject to certain specific limitations. Once again, close scrutiny of the DMPO is required in any given case. When pre-commencement conditions are to be imposed, the DMPO now requires local planning authorities to provide specific reasons.
To end on one devilish thought, some might think it curious that these changes were laid before parliament on 24 March, days before it was prorogued on 26 March and formally dissolved on 30 March, so after that date there were no MPs to debate these changes. Under section 333(3) of the Town and Country Planning Act 1990, these orders are subject to the negative resolution procedure that requires that the draft to be laid before parliament and cannot be made if the draft is disapproved within 40 days, ie subject to annulment. However, under section 7(1) of the Statutory Instruments Act 1946, no account is taken of any time during which parliament is dissolved or prorogued. How’s that for parliamentary scrutiny?
Martin Edwards is a specialist planning barrister at Cornerstone Barristers
