PDR pitfalls and possibilities

Hannah Quarterman, Stella Bliss and Ingrid Stables consider some of the key questions to have in mind when considering the use of permitted development rights. With many properties – in all asset classes – standing empty, and with an ever-growing focus on reusing buildings rather than rebuilding them, especially with local planning authorities increasingly considering planning applications through a sustainability lens, many people are giving greater consideration to the use of permitted development rights to help repurpose their buildings. What are permitted development rights? The law sets out details of what is meant by development. It can either involve physical works, such as construction, or material changes of use. The starting point is that you need planning permission to carry out anything falling within that definition of development. However, there are some types of development which the government considers are usually acceptable. The Town and Country Planning (General Permitted Development) Order 1995 therefore grants a blanket planning permission for these categories of development, subject to certain conditions and limitations. These are known as permitted development rights, or PDRs. Are there limitations on the use of PDRs? Yes. First, there are limitations on when PDRs are available. For example, you cannot generally rely on PDRs if doing so would breach a condition of a planning permission or if the building or use the PDRs are based on is unlawful. Where PDRs are available, there are often limitations on the nature of the rights involved. This could, for example, relate to the quantum of development that can be carried out, such as imposing a maximum floor area that can be delivered using PDRs. In other cases, there are preconditions that need to be satisfied before a PDR is available. Some may seem obvious – for example, to rely on PDRs to change use, you must have been using the property for the initial use. It isn’t enough to simply have planning permission to use the property for that purpose. In further cases, the preconditions are more complex, such as the PDR to change from class E use to residential, requiring the property to have been used for a relevant use for at least two years before the date a relevant application for prior approval is submitted. Are PDRs the same everywhere? There are some areas, such as conservation areas, that do not benefit from PDRs. It is also possible for local planning authorities to secure an “article 4 direction”, under the Town and Country Planning Act 1990, which disapplies PDRs from a specified area. This can apply to the whole LPA area, just a specific building, or anything in between. There is a process that has to be followed to secure an article 4 direction, though, and LPAs cannot always restrict PDRs to the extent they wish. You should therefore take care to ensure that any PDRs you want to rely on can both achieve the result you expect and are actually available to you. Is there any process I need to follow before relying on PDRs? This depends on the nature of the PDR. In some cases, you can simply carry out the development with no formal process. Where this is the case, if you do want some extra comfort, for example because you are selling a property and want to be able to evidence that the development was lawful, there is the option to apply for a certificate of lawfulness of existing use and development. In other cases, there are processes that must be followed. Sometimes this is just notifying the LPA, but increasingly, before certain PDRs can be relied on, the developer must follow a prior approval process. This means the LPA must be given the opportunity to consider a specified list of factors (which depends on the relevant PDR), such as transport impacts, before determining whether to grant the approval required. The LPA cannot, however, refuse the approval on grounds other than those listed for that PDR. There are those who argue that the expanding scope of the prior approval process is eroding the benefit of PDRs. Given the need to satisfy an LPA on certain details, and the delay this can entail, it may be that it is almost as simple to apply for planning permission, especially as the limitations on what can be achieved using PDRs would not automatically apply to planning permissions. Further, the availability of PDRs as a fall-back position can be a material consideration for an LPA when deciding whether to grant a planning permission. It may be willing to grant permission for something more than is permitted by PDRs given that they would have greater control, via the imposition of conditions or being able to require a section 106 agreement. Consequently, even if you don’t intend to rely on PDRs, understanding their scope for your property can be useful strategically. Why are use classes relevant to PDRs? Many PDRs which relate to changes of use refer to use classes when defining either the original use or the use that you are permitted to change to, and sometimes both. Although not strictly a PDR, it is also worth being aware that legislation states that a change of use is not development where you are changing use within a use class. For example, if you have a property that is being used as a residential school, no planning permission is needed to use that property as a care home, as both uses are within use class C2. This flexibility is especially useful in the context of class E, introduced in 2020, which encompasses a broad range of uses, including retail, offices and light industrial uses. As the ability to make these changes is not dependent on a PDR, although it can be excluded by condition, other limitations – such as those based on geography and the LPA’s ability to exclude the right using an article 4 direction – do not apply. I have an empty office building – what are some of the key changes of use I can carry out? For a start, provided there is nothing contrary in your planning permission, and no other limitations apply, you can use the unit for anything else in class E, including retail, financial services, a crèche or research and development. Should you need to make even more radical changes, there are PDRs permitting the introduction of residential uses. This includes not only changing existing buildings, but extending over office buildings and even knocking them down to replace them with dwellings, in some cases. If I make a change of use using PDRs, can I revert to the original use? PDRs only apply one way. As a result, you cannot undo development carried out in reliance on PDRs, such as making a change of use, unless there is a PDR permitting you to revert to the original use or you secure planning permission. Are there any changes proposed to PDRs? There have recently been important changes to PDRs relating to changes from office to residential, as a result of which it is no longer necessary to show that the offices have been vacant for three months, and there is no longer a cap on the amount of floorspace that can be converted in reliance on that PDR. The government has recently consulted on further changes, including changes to make it easier to extend homes, and to make it easier to install electric vehicle charging points. Other changes are expected, linked to the introduction of a new use class for short-term lets. This is certainly an area the government has been tinkering with lately, so there is every possibility that we will see even more changes proposed. Even without any further changes, whatever asset type you own, PDRs have the potential to provide you with significant flexibility, without the need to secure planning permission. However, they need to be handled with care, to avoid a variety of potential pitfalls.  Hannah Quarterman is a partner and head of planning, Stella Bliss is a corporate and finance counsel and Ingrid Stables is a senior knowledge lawyer at Hogan Lovells Photos by Copernico and Francesca Tosolini/Unsplash