Time-limited permitted development rights – Law Society response
The proposals
The government is consulting on:
- the future of two time-limited permitted development (PD) rights introduced to give planning freedoms to businesses, local authorities and health service bodies in response to the COVID-19 pandemic:
- Class BB of Part 4 permitting moveable structures within the curtilage of a pub, café, restaurant or historic visitor attraction
- Class BA of Part 12 permitting for markets to be held by or on behalf of local authorities
- the introduction of two new PD rights to support the delivery of defence infrastructure on defence sites
The proposals support the prime minister’s “build back better” strategy, which sets his ambition to rebuild Britain and fuel economic recovery.
In line with this, the Ministry of Defence is driving for faster delivery of its infrastructure plans across the regions.
Our view
Future of temporary permitted development rights
In most cases, the existing planning permission process – with the requirement to secure a planning agreement to make a development acceptable – is preferable to permitted development, although government could clarify aspects of the process through guidance.
Given that the temporary changes to PD rights were COVID-19 related, we would prefer to extend these for a further time-limited period rather than make the changes permanent.
This would allow time for the government to:
- better consider their impact along with other changes to PD rights
- make sure that thorough impact assessments have been carried out
We support the current plan-led system, and advocate for the benefits of planning applications in relation to both ensuring access to justice and upholding the rule of law.
Expansion of PD rights
Expanding PD rights means a loss of control for local planning authorities (LPAs).
We believe it would be better in most cases to require an application for the grant of planning permission, so the LPA may decline when needed.
Planning applications are inherently flexible and involve the exercise of professional judgement about all relevant planning considerations.
Prior approval can be an issue with PD:
- a lengthy list of matters would render the mechanism as complicated as a regular planning application
- too short a list of matters would lead to material considerations not being taken into account
We take the view that it’s better to use the planning application route, but that the UK government should better resource LPAs to enable them to deal with applications more quickly and efficiently.
Review of PD rights
With all the changes introduced to PD rights and changes of use since 2020, we believe a general review of PD rights is appropriate.
It’s still too early to tell the implications of some of the changes, as not all building conversions permitted by the change will have been carried out yet.
However, any review should be evidence-led with a proper review of the impacts and benefits of the application of PD rights so far.
There is a risk that without that further evidence, making these changes permanent at this stage could result in unintended and detrimental consequences.
A cautious, considered approach to reviewing PD rights is therefore required, as well as reflecting on what is appropriate for these to deliver.
Ending PD rights in response to issues
Councils ought to have powers to bring the temporarily widened rights to an end in specific localities if problems do become apparent.
Making the changes permanent before a proper impact assessment is carried out could negatively impact on access to justice and rule of law if substandard accommodation or unjustifiable environmental harm are allowed to process without the appropriate checks afforded by the usual planning process.
Supporting defence infrastructure
We understand that the UK government has started to introduce these changes partly to achieve faster housing delivery on and near military sites.
If the details are not properly considered, then subsequent remediations would mean that any speed advantage is lost.
The consequent development could be poorly designed, ill served by infrastructure and fail to deliver on the aspirations of beautiful places for the people who live there.
Ordinarily, government, like others, would need to obtain planning permission for larger scale development so we query the proposed, rather high, percentage figures for these defence-related PD rights.
Depending on the existing floor area, these rights could result in quite significant new development.
We would welcome further clarity on the rationale for the proposed percentages rather than lower figures or simply requiring express planning permission to be obtained.
In any event, we agree that these should be restricted in sensitive areas as suggested in the consultation, if not more so.
Next steps
The consultation closed on 14 November 2021.
We’ll continue to monitor and engage with the changes that government is making to PD rights as the country continues its efforts to recover from the effects of the COVID-19 pandemic.