Making use of resi PDRs: top 10 questions answered

The government is keen to boost the economy and housing delivery by expanding permitted development rights to allow certain residential development without needing to obtain planning permission. Caroline Stares explores 10 key questions on the existing and proposed residential PDRs. 1. I have various mixed-use buildings which I would like to increase in value. They are in an area that is short on housing. Is there anything I can do to take advantage of this? Yes, you might be able to build upwards. The government introduced six PDRs in August 2020 for the upward extension of certain buildings. One allows the enlargement of a dwellinghouse by up to two storeys. The other five permit the construction of up to two storeys of new flats above existing blocks of flats, dwellinghouses, or certain commercial or mixed-use buildings (eg shops, restaurants, offices, and including those with an element of residential use). However, the PDRs are subject to extensive exclusions and conditions which restrict the use of them, eg height restrictions and limiting the PDRs to buildings built or used within certain periods. 2. I have been struggling to let an office building in an area that has a high housing need. What can I do? You might be able to redevelop the building for residential use as another PDR introduced by the government in August 2020 gives the right to: demolish a purpose-built detached block of flats, or a detached building used for offices, research and development and/or light industrial; and replace this with a purpose-built detached block of flats or dwellinghouse. Again, this PDR is subject to several exclusions and limitations, including that the original building must have been vacant for six months before submission of the prior approval application and built before 1990. 3. Are there any other ways to introduce residential development? Yes, two current, key PDRs are a change of use to class C3 (dwellinghouses) from: the old use classes A1 (shops), A2 (financial and professional services) or A5 (hot food takeaways), some sui generis uses (ie those not falling within a use class), or these uses combined with residential use – but only 150 sq m of floorspace can change use and the use must have been in operation on a specific date; and offices – there’s no floorspace restriction but the building must have been used as offices within a certain period. There are no longer any PDRs to change from class B1(c) (light industrial) or class B8 (storage and distribution) to residential, so express permission will be needed for this. All of these PDRs will remain in force until 31 July 2021, at which point revised PDRs will be introduced. 4. If planning permission is not required, can I start redeveloping straightaway under these residential PDRs? No. All of these PDRs require an application for prior approval to be submitted to the local planning authority (LPA) for various matters (eg external appearance, impact on neighbouring amenity and the provision of natural adequate light) before commencing the development. This is to ensure that the housing is of adequate quality and is appropriate for the area, and that the effect on townscape and amenity is assessed. A very detailed prior approval procedure must be followed. For the upward extension and demolition and rebuild PDRs, prior approval must be obtained from the LPA before commencing on site. For the other residential PDRs, you can start on site if you have received prior approval or 56 days (or such longer agreed period) have passed since submission without the application being determined. 5. Is there anything else that I need to be aware of before I start developing pursuant to these residential PDRs? Yes. There are five key points to note: These PDRs don’t apply to properties within protected areas (eg conservation areas) (save for the office to residential PDR), listed buildings, or to development requiring an environmental impact assessment. The development must be completed within three years of the prior approval date. All homes built following the submission of prior approval applications from 6 April 2021 must comply with the nationally described space standards. Currently, developers don’t need to enter into section 106 agreements if relying on PDRs. However, the planning white paper suggested that the proposed infrastructure levy should capture some PDRs, eg the office to residential and demolition and rebuild PDRs, adding to development costs. In R (Rights: Community: Action) v Secretary of State for Housing, Communities and Local Government [2020] EWHC 3073 (Admin); [2020] PLSCS 208, the High Court dismissed a judicial review challenge in respect of the orders authorising the upward development and demolition and rebuild PDRs. However, the claimant plans to appeal. 6. I understand that there have been big changes to the use classes. Will those impact on the PDRs? A new class E (commercial, business and service) has been introduced which incorporates a vast range of uses, including retail, leisure, offices and nurseries. The government is now consulting on introducing, from 1 August 2021, a new PDR allowing a property falling within class E on 1 September 2020 to change to residential use. This PDR will replace and expand on the current office and retail to residential PDRs. The consultation closes on 28 January. The government’s aim is to give owners greater flexibility in order to adapt to changing market conditions (eg surplus retail floorspace, greater homeworking), repurpose brownfield sites, support housing delivery, and regenerate and bring additional footfall from new residents to town centres and high streets. 7. Will the proposed residential PDR be more wide-ranging than the current ones? Yes. The proposed PDR will encompass a change of use from any use, or mix of uses, within class E rather than limiting it to only offices and retail, although the PDR will no longer apply to hot food takeaways and some other sui generis uses. It is also suggested that there will be no building size limits. The government recognises that some high streets and town centres, which would benefit most from the proposed PDR, are designated conservation areas. As such, unlike most of the existing residential PDRs, it is intended that the proposed PDR will apply to conservation areas. But, given the conservation value of retail frontages, prior approval of the impact of the loss of the ground floor to residential will be required. 8. Will I need to get prior approval to use the proposed PDR? Yes, as the government wants to ensure that only appropriate residential development is delivered and local communities have a say. It is proposed that the matters requiring prior approval will be similar to those for existing PDRs, eg flooding, transport, contamination, noise, natural light and fire safety. Various documents will need to be submitted with the prior approval application to assist with the LPA’s determination of these matters, together with an application fee. The suggested fee is £96 per home, capped at £4,800. Charging a fee on a per home basis aligns with the current approach to the fees for the upward extension and demolition and rebuild PDRs, but it means that it could be considerably higher than what is currently charged for the existing office and retail to residential PDRs, eroding one benefit of relying on PDRs rather than the planning application route. 9. It sounds like the proposed PDR will provide a lot more flexibility. Are there any downsides to what the government is proposing? While there are clear benefits of increasing footfall in commercial areas from new residents, there is also a real risk of areas already poorly served by amenities losing these important local resources entirely to homes – or in some cases, local high streets disappearing altogether. This is compounded by the fact that it is intended that LPAs would no longer be able to refuse prior approval because of the impact of the change to residential use on the adequate provision of retail services, save in respect of ground floor retail in a conservation area. There has previously been much criticism about the quality of housing delivered and lack of affordable housing and amenities provided by PDRs. However, it is hoped that many of these fears are overcome by the introduction of minimum space standards, the adequate natural light requirement, and the increased scope of the proposed infrastructure levy to apply to some PDRs and to include affordable housing and a wider range of local infrastructure. 10. What else does the government consultation cover? The government has invited views on: streamlining and speeding up the planning process for public service infrastructure (eg hospitals, schools, prisons) by introducing new and extending existing PDRs, and creating a fast track public service application process; and the approach to revamping the existing PDRs. The proposed class E to residential PDR is just the beginning. Before next summer, the government needs to sift through all the existing PDRs to see which can stay unchanged, which need to be revised, and which should be scrapped altogether. Caroline Stares is an associate at Hogan Lovells International LLP Photo by ANDY RAIN/EPA-EFE/Shutterstock