PDRs: are they the right way to permit?
Permitted development rights are a grant of planning permission for certain types of development, subject to various conditions and prior approvals, as set out in the General Permitted Development Order (2015, in England; 1995, in Wales).
PDRs allow landowners to carry out development without the need to apply for express planning permission.
The government has made much in recent months of extending PDRs to apply to more types and scale of development. This has (particularly in relation to offices) attracted a greater level of interest from developers in the opportunity to rely on PDRs for part or all of their proposed works.
Permitted development rights are a grant of planning permission for certain types of development, subject to various conditions and prior approvals, as set out in the General Permitted Development Order (2015, in England; 1995, in Wales).
PDRs allow landowners to carry out development without the need to apply for express planning permission.
The government has made much in recent months of extending PDRs to apply to more types and scale of development. This has (particularly in relation to offices) attracted a greater level of interest from developers in the opportunity to rely on PDRs for part or all of their proposed works.
Why?
PDRs grant planning permission for categories of “development” for which the Town and Country Planning Act 1990 would otherwise require an express grant of planning permission from the local planning authority.
PDRs are therefore not liable to:
Biodiversity net gain – A new condition which is to be read into planning permissions granted requires biodiversity net gain plans to be approved prior to commencement. The legal requirement is to achieve a 10% BNG, and for some sites this is particularly onerous.
Affordable housing – Local policies on the delivery of affordable housing do not apply to PDRs.
Section 106 obligations – Section 106 agreements are not required where PDRs apply. Even for those categories of PDR where the LPA’s prior approval is needed, the LPA is only able to consider the issues set out in the GPDO (for example, flooding and transport) as part of the prior approval process.
The changes
In the past 12 months we have had two government consultations on the expansion of PDRs, including proposals which would alter the PDRs for:
change of use to dwellinghouses;
extensions to non-domestic buildings;
enlarging homes;
demolition of buildings to be replaced by homes;
erection of new industrial and warehouse buildings;
alterations, extensions or new buildings for schools, universities and hospitals;
agricultural development and units;
…the list goes on.
On the face of it, the broad scope of the expanded PDRs would suggest a fundamental relaxation of planning control. There are of course limits on what falls within the scope of permitted development, and what therefore requires express planning permission.
A big change is the class MA PDR in England. Class MA allows for the change of use from class E (commercial, business or service) and its curtilage to class C3 residential use. Until recently, this only applied to a maximum of 1,000 sq m of floorspace and only if the property had been vacant for three months prior.
The effect was that only relatively small commercial properties could benefit. That, coupled with the economic and time impacts of having a vacant property for three months, meant that developers still needed to apply for express planning permission in most cases.
Not any more though. Class MA no longer has a floorspace cap, and the three-month vacancy restriction has been removed.
Prior approval must be sought from the local planning authority, but only on the items set out in the GPDO (as opposed to the principle of the change of use). For class MA PDRs, these include:
transport impacts;
contamination;
flooding;
noise impacts from neighbouring sites on future residents of the development; and
fire risks in tall buildings
How long have you got?
We are already seeing some local planning authorities issue article 4 directions under the 1990 Act for some of the changes, in particular class MA.
Article 4 directions allow local authorities to disapply a specific PDR to a specific area, where it is justified to do so. This is subject to the secretary of state’s intervention to modify or cancel a direction.
The PDRs are set out in the GPDO, and so can be amended by the secretary of state by making regulations under the 1990 Act.
With Michael Gove standing down at the election, the new secretary of state (whether Conservative or Labour) could approach PDRs quite differently.
Reflections
We are always keen to see ways for developers to get on and deliver their scheme as soon as they can. We are pleased that the government has listened to the industry on these changes. But with Labour’s commitment to a new planning Bill in 100 days if it wins the general election, it is not clear which PDRs will survive, in what form, and for how long.
Critics of the PDR expansion are keen to point out that PDRs do not lead to good placemaking and quality legacy development. But, for now, the PDR route is giving developers pause for thought on their consenting strategies. They are considering whether the delay at local level and the cost of affordable housing and BNG are worth it, when they could deliver a revised scheme more quickly and cheaply through PDRs.
Time will tell whether that is the right result in the long run but, for the moment, there is no doubt that PDRs are seen by many as an increasingly useful method to deliver housing in a time of need.
Ashley Squire is an associate in the planning and environment group at Ashurst
Photo © Sergei Wing/Unsplash
