Consultation on Permitted Development (“PD”) rights to change from Class E to residential use

The Government is consulting on the introduction of a new PD right to allow the change of use from commercial, business and service uses (Class E) to residential uses (Class C3) in England. The consultation expires on 28 January 2021.

Coming quickly after the radical creation of the new Class E, this would be the most significant extension to the creation and delivery of new homes through PD rights. Landlords considering their options in a post-Covid world, could have another use option available to them, especially as there is no size limit. Even so it is not a complete free for all because EIA Regulations and residential space standards apply and prior approvals are needed.

The Prime Minister’s ‘Build, Build, Build’ statement last June promised that a wider range of commercial buildings would be allowed to change to residential use without the need for a planning application, with this consultation representing a step towards fulfilling this aim. Current PD rights already provide for retail, financial and professional services, and offices to change to residential use, and these rights will continue to apply until 31 July 2021. The Government is proposing that the existing and proposed PD rights will then be drawn together into a single PD right which would provide for the change of use from any commercial, business and service use to residential.

Increased flexibility

The new Class E, introduced from 1 September 2020, introduced flexibility into changes of use by grouping together commercial, business and service uses and allowing change between these uses without a planning application. The Government’s proposed extension to PD rights will provide further flexibility by allowing uses within Class E to change to residential. If these new PD rights are introduced, then restaurants, medical facilities, creches, gyms and indoor sports facilities will all be able to change to residential use without a planning application.

There will be no size limit on the buildings that can benefit from the right, although the standard restrictions on the application of PD rights that apply to EIA development will apply. It is also proposed that these rights will apply in conservation areas, unlike many existing PD rights governing a change of use to residential, although the proposed right would require prior approval of the impact of the loss of the ground floor use to residential in conservation areas.

Requirements

In order to benefit from the right, premises must have been in the commercial, business and service use class on 1 September 2020 when Class E came into effect. As with all PD rights, other regulations such as Environmental Impact Assessment and Habitats Regulations would apply. All new homes would be also required to meet the new quality requirements, which require that all new homes delivered under PD rights meet the nationally described space standards and provide for adequate natural light.

Infrastructure Levy

Currently, development delivered through PD rights does not need to make community infrastructure levy (CIL) contributions. The Planning White Paper proposed a new Infrastructure Levy to replace CIL and section 106 contributions. The Government has sought views through the consultation on the Planning White Paper on whether the Infrastructure Levy would also apply to PD rights (including the proposed PD rights, if implemented), and the outcome of this consultation is awaited. If the new Infrastructure Levy applies to changes of use through PD rights, and not just the creation of new floorspace, this could have a significant impact on developer contributions and affordable housing provision, as CIL and section 106 agreements currently deliver around half of all affordable housing.

Application process

The application of the proposed PD rights is expected to require detailed floor plans showing dimensions and proposed use of each room, including the position of windows, information necessary for the consideration of the matters for prior approval, and an appropriate fee. The proposed fee per dwellinghouse would be set at the current prior approval fee of £96 applied as a fee per dwellinghouse capped at a maximum of the fee for 50 homes (£4,800).

Prior approvals process

The proposed prior approvals are similar to other PD rights for the change of use to residential. The proposed matters are:

• flooding, to ensure residential development does not take place in areas of high flood risk;
• transport, particularly to ensure safe site access;
• contamination, to ensure residential development does not take place on contaminated land, or in contaminated buildings, which will endanger the health of future residents;
• the impacts of noise from existing commercial premises on the intended occupiers of the development;
• the provision of adequate natural light in all habitable rooms;
• fire safety, to ensure consideration and plans to mitigate risk to residents from fire; and
• the impact on the intended occupiers from the introduction of residential use in an area the authority considers is important for heavy industry and waste management.

Exclusions

The proposals include a carve out for areas of outstanding natural beauty, the Broads, national parks, areas specified by the Secretary of State for the purposes of section 41(3) of the Wildlife and Countryside Act 1981, and World Heritage Sites. The usual exclusions to PD rights would also continue to apply for sites of special scientific interest; listed buildings and land within their curtilage; sites that are or contain scheduled monuments; safety hazard areas; military explosives storage areas and sites subject to an agricultural tenancy.