The Department for Levelling Up, Housing and Communities (DLUHC) secured royal assent for the Levelling Up and Regeneration Act on 26 October 2023. A full summary of the act’s proposals, many of which require secondary legislation and therefore do not come into effect straight away, is included in the box.
Meanwhile, the NPPF is being reissued, with on-going minor changes such as relaxed planning rules for onshore wind production, clarifying that older people’s specialist housing need should be measured by local authorities (paragraph 62), and a redrafted Chapter 14 on climate change, renewable and low carbon energy. The NPPF continues to be revised and rewritten, supplemented by ministerial DLUHC directions and Chief Planner announcements, with a full update expected later this year.
So here is a timely reminder that all national planning policy guidance is available on line and is constantly being updated. Go to www.gov.uk and find Planning Practice Guidance. Recent changes have been made to advice on timescales for planning applications and deemed approvals, green belt, calculating local housing need, viability, Biodiversity Net Gain (see below) and the environment / Natural England.
Fees are also included because the nationally-set planning application fees have been increased by 35 per cent for major applications and 25 per cent for all others, so that householder applications are now £258 with £578 per 0.1 hectare for new housing on smaller sites (less than 0.5 hectares). The increases came into force on 6th December 2023 and will not be ring-fenced for planning purposes, even though this was supported by over 80% of the responses to a government consultation on planning fees. The “free go” on refusal has been withdrawn, but does remain in force for any applications made before 6th December, subject to some rather complex conditions. There are other exemptions and reductions, such as for certain works to listed buildings, but for a full list refer to The Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012 (as amended) or the Planning Portal’s guide.
The 10% Biodiversity Net Gain (BNG) Regulations came into force on 12 February 2024 for major applications (2 April 2024 for small sites – ie those with an area less than 0.5 hectare or with fewer than 10 dwellings and commercial sites below one hectare or with less than 1,000 square metres). A Biodiversity Gain Plan (BGP) will be required for all applications and this should include a biodiversity metric calculation and habitat management and monitoring plans, carried out by a competent person (eg ecologist), although Defra has produced a template BGP (available online) for simpler proposals. Householder and permitted development rights applications are exempt, along with most self-build and custom build developments, and those that impact an area of less than 25 square metres or less than 5 metres of linear habitats such as hedgerows.
Other recent government announcements
- Amendment of Class MA of Part 3 (changes of use) of Schedule 2 of the General Permitted Development Order to remove the requirement that a commercial, business or service building must have been vacant for at least three months prior to its change of use to residential, and now with no upper limit of floorspace area under the right (but subject to prior approval regarding other impacts, such as transport and access).
- Introduction of a presumption in favour of sustainable development for all planning applications on brownfield land in the 20 largest cities and urban centres, where housing delivery has dropped below expected levels.
- Publication of Michael Gove’s review of the London Plan – a damning report that found 60,000 fewer homes had been built than the strategy planned for, with the number of homes granted each year still falling, while SME housebuilders (who are delivering 60 per cent of London’s homes) face specific challenges – for example around finance and recruiting labour – and are disproportionately impacted by delays or uncertainties in planning (overturned London appeal decisions have increased form 30 to 45 per cent in two years). Gove wrote to Sadiq Khan stating that he aims to cut through “some of the complexity of the existing London Plan which may currently be serving to thwart housing delivery”.
- A new use class and permitted development rights for short-term lets are likely to come into effect this summer: the introduction of a C5 short term let Class would allow local planning authorities to better control the use of dwellings with temporary sleeping accommodation for the purpose of holiday, leisure, recreation, business or other travel – possibly in the same way that Scottish authorities already can. BUT it will be interesting to see how the government does this – a change of use from residential to residential (short -term letting) could be argued as not being a material change and therefore would not need planning approval as set out in section 55 of the Town and Country Planning Act (definition of development).
- Finally, two government consultations, on the strengthening of planning policy for brownfield sites and further changes to Permitted Development Rights (allowing yet greater flexibility), have been published, with submissions made as usual by the ACA Planning Action Group to the DLUHC.
Street Votes consultation: – The ACA response
I have set out below a response from The Association of Consultant Architects. As the only association that specifically represents architects in private practice, with a remit concentrating on the practicalities of running a business in the private sector, but with considerable experience in the operation of the planning system and appeals, we suggest that our comments provide a unique perspective.
We have limited our response to more general observations, but with reference to some of the questions posed.
Our comments relate to how the system is likely to work with regard to stakeholders such as planning consultants and architects who would use the system. We believe that the proposed procedures are so complex that it is difficult to understand how or whether people with little or no experience of the planning world would be able to engage with the system as outlined.
We believe that the procedures in general are ill-considered and certainly too bureaucratic. To achieve street improvements the current planning application system provides an equal, or even more, efficient way of gaining approval. The new procedures could be seen as more onerous than the existing planning application route, with no clear reference to resources which is another reason why the new system would be unlikely to work well.
How would the process be paid for?
We are also concerned that there is no mention of sanctions or any machinery for ensuring that individual authorities follow the new procedures in a timely way.
We are also concerned that local residents nearby and acknowledged planning policy issues are not able to be considered as part of the process.
Finally, it is known that Neighbourhood Planning procedures usually attract less that 30 per cent turnouts; aiming for a 60 per cent support (with complex restrictions) is unrealistic.
Four-year immunity period for enforcement removed
The government has brought in (active from 25th April) several sections of the Levelling-up and Regeneration Act 2023. These include removal of the 4-year period for immunity from enforcement of unauthorised householder works – all unauthorised work is now subject to a ten-year period, as from 25th April.
Other regulations increase temporary stop notices to 56 days, various amendments to enforcement and building preservation notice procedures, clarifying electronic (digital) application powers, and related transitional provisions.
The Levelling Up and Regeneration Act 2023 includes the following key provisions
A – measures that have come into force already
- planning authorities can issue completion notices if a development is being built out ‘unreasonably slowly’ and can decline to determine applications in cases of earlier non-implementation of slow build-out
- special provisions relating to Environmental Outcome Reports and Nutrient Pollution Standards
B – commencement regulations brought in this February that allow for further legislation during 2024•
- the introduction of National Development Management Policies (NDMPs) that will set out “general policies on issues that apply in most areas”, have regard to climate change, and have the same weight as Local Plans in decision making, but should not be duplicated in Local Plans
- development plans will include supplementary and minerals/waste as well as policies maps, which should not be separate, with decisions made in accordance with Local Plans and NDMPs unless material considerations strongly indicate otherwise
- the introduction of a system of “street votes” which sets up street vote development orders that aim to permit residents to propose development on their street and to vote on whether it should be given planning permission
- the introduction of a new duty for councils to grant sufficient permissions for self-build and custom build housing, with a requirement that only land explicitly given permission for such uses will qualify towards that duty
C – changes that are expected in due course, but with no specified timescale•
- streamlined Local Plan reforms include a production process timed at 30 months with pre-submission checks designed to reflect local needs and requirements for the Plan to be simpler, visionary and proportionate, digitally accessible, and subject to three “gateway” stages – and limited to ‘locally specific’ measures (see NDMP above)
- all Local Plans will have to incorporate an area-wide design code to act as a framework for detailed design codes
- supplementary plans must be part of the Local Plan with new regulations allowing specific additional policies to be added urgently
- provision for a new Infrastructure Levy that will eventually replace the present Community Infrastructure Levy (CIL) system
- a requirement for local authorities to prepare infrastructure delivery strategies to outline how they intend to spend the levy, which will be given more weight if proposed by mayors or combined authorities
- various provisions relating to Community Land Auction pilots, Compulsory Purchase, and High Street Rental Auctions
- removal of the four-year period for exemption from enforcement action to be replaced by an across the board ten-year period
- more weight to be given to the new Local Plans and Neighbourhood Plans, with the latter made simpler to prepare
- Introduction of changes that give designated heritage assets such as registered parks and gardens, World Heritage Sites, and registered battlefields the same statutory protection as listed buildings and conservation areas
- pre-application and community engagement procedures to be regularised and strengthened
Permitted Development Rights consultation – our response
Our response is prefaced by a request that the General Permitted Development Order should be consolidated (along with technical guidance) and reissued urgently – it is currently too complex and uncertain in some areas. Prior Approval has also become too complex and should only concern measurable issues – not those that are subjective.
Q.1 Do you agree that the maximum depth permitted for smaller single-storey rear extensions on detached homes should be increased from 4 metres to 5 metres? Yes.
Q.2 Do you agree that the maximum depth permitted for smaller single-storey rear extensions on all other homes that are not detached should be increased from 3 metres to 4 metres? Yes.
Q.3 Do you agree that the maximum depth permitted for two-storey rear extensions should be increased from 3 metres to 4 metres? Yes.
Q.4 Do you agree that the existing limitation requiring that extensions must be at least 7 metres from the rear boundary of the home should be amended so that it only applies if the adjacent use is residential? Don’t know: would be ambiguous – what happens if the adjacent use changes?
Q.5 Are there are any circumstances where it would not be appropriate to allow extensions up to the rear boundary where the adjacent use is non-residential? Yes – if the non-residential use is likely to be changed to residential in the future.
Q.6 Do you agree that the existing limitation that the permitted development right does not apply if, as a result of the works, the total area of ground covered by buildings within the curtilage of the house (other than the original house) would exceed 50% of the total area of the curtilage (excluding the ground area of the original house) should be removed? No. Sometimes the space around a dwelling is important: if necessary a planning application can be made.
Q.7 Should the permitted development right be amended so that where a two-storey rear extension is not visible from the street, the highest part of the alternation can be as high as the highest part of the existing roof (excluding any chimney)? Yes. This option already exists (the rules are too complicated) because Sch2, Part 1, Class A, A.1.(h) does allow a rear extension ‘of more than one storey’ with no limit on height unless within 2 metres of the boundary. See answer to Q.13
Q.8 Is the existing requirement for the materials used in any exterior work to be of a similar appearance to the existing exterior of the dwellinghouse fit for purpose? Yes. But it should be clear that there must be flexibility, for example when there are several different materials on the existing exterior (eg some render, some brickwork). A.2.(a) should not apply where any extension material matches one on the original house but is not on the list (i.e. it’s not brick).
Q.9 Do you agree that permitted development rights should enable the construction of single-storey wrap around L-shaped extensions to homes? Yes.
Q.10 Are there any limitations that should apply to a permitted development right for wrap around L-shaped extensions to limit potential impacts? No – other limits eg Building Regulations apply and heights at boundaries should be subject to the same restrictions as other side extensions.
Q.11 Do you have any views on the other existing limitations which apply to the permitted development right under Class A of Part 1 which could be amended to further support householders to undertake extensions and alterations? Yes -prior notifications should be minimal and not applied to criteria that are in any way subjective or open to opinion/interpretation, ie only for measurable limitations and certainly not for matters that are dealt with under Building Regulations and/or Party Wall legislation. Prior Notification has become synonymous with planning permission.
Q.12 Do you agree that the existing limitation that any additional roof space created cannot exceed 40 cubic metres (in the case of a terrace house) and 50 cubic metres (in all other cases) should be removed? Yes.
Q.13 Do you agree that the existing limitation requiring that any enlargement must be set back at least 20 centimetres from the original eaves is amended to only apply where visible from the street, so that enlargements that are not visible from the street can extend up to the original eaves? Yes – but not further forward than the existing wall. We are worried about introducing the phrase ‘visible from the street’, that is not currently in the GPDO (which uses ‘elevation fronting the highway’), because in built-up areas many rear elevations will
be visible from side streets, especially when streets are short – large numbers of extensions will be ruled out completely.
Q.14 Should the limitation that the highest part of the alteration cannot be higher than the highest part of the original roof be replaced by a limitation that allows the ridge height of the roof to increase by up to 30 centimetres? Yes.
Q.15 Do you agree that the permitted development right, Class B of Part 1, should apply to flats? Yes – the same rules should apply to all dwellings.
Q.16 Should the permitted development right be amended so that where an alteration takes place on a roof slope that does not front a highway, it should be able to extend more than 0.15 metres beyond the plane of the roof and if so, what would be a suitable size limit? Yes – but this is surely already allowed for roof slopes that do not front a highway. (Is this a proposal for dormers, etc, to be allowed on front or principal elevations that do not front a highway?)
Q.17 Should the limitation that the highest part of the alteration cannot be higher than the highest part of the original roof be amended so that alterations can be as high as the highest part of the original roof (excluding any chimney)? Yes. This seems to be the same as Q.14 – i.e. no change proposed: ‘can be as high’ = ‘cannot be higher’?
Q.18 Do you agree that bin and bike stores should be permitted in front gardens? Yes.
Q.19 Do you agree that bin and bike stores should be permitted in front gardens in article 2(3) land (which includes conservation areas, Areas of Outstanding Natural Beauty, the Broads, National Parks and World Heritage Sites)? Yes – again, the same rules for all.
Q.20 Do you agree that bin and bike stores in front gardens can be no more than 2 metres in width, 1 metre in depth and up to 1.5 metres in height? Yes.
Q.21 Are there any other planning matters that should be considered if bin and bike stores were permitted in front gar-dens? No.
Q.22 Should the existing limitation that in Areas of Outstanding Natural Beauty, the Broads, National Parks and World Heritage Sites development situated more than 20 metres from any wall of the dwellinghouse is not permitted if the total area of ground covered by development would exceed 10 square metres be removed? Yes.
Q.23 Should the permitted development right be amended so that it does not apply where the dwellinghouse or land within its curtilage is designated as a scheduled monument? No.
Q.24 Do you think that any of the proposed changes in relation to the Class A, B C and E of Part 1 permitted development rights could impact on: a) businesses b) local planning authorities c) communities? Yes – everything impacts on someone.
Q.25 Do you agree that the limitation restricting upwards extensions on buildings built before 1 July 1948 should be removed entirely or amended to an alternative date (e.g. 1930)? Yes – removed entirely. Buildings that need protection are usually already listed or in Conservation Areas: rights of light still apply.
Q.26 Do you think that the prior approvals for the building upwards permitted development rights could be streamlined or simplified? Yes – see answer to Q.11: prior approvals are too often used when unnecessary or when criteria are subjective. Permitted development rights should provide certainty and give automatic approval – planning applications can be made if the pd rights cannot be allowed.
Q.27 Do you have any views on the operation of the permitted development right that allows for the construction of new dwellinghouses on a freestanding block of flats (Class A of Part 20)? Yes – there is a glaring anomaly that allows new dwellings on large blocks but not on two-storey blocks.(As below, houses and the two left-hand blocks can be extended but blocks on the right cannot.)
Q.28 Do you agree that the existing limitations associated with the permitted development right for building upwards on a freestanding block of flats (Class A of Part 20) incorporates sufficient mitigation to limit impacts on leaseholders? Yes. Leases should provide such protections.
Q.29 Do you think that any of the proposed changes in relation to the Class AA of Part 1 and Class A, AA, AB, AC and AD of Part 20 permitted development rights could impact on: a) businesses b) local planning authorities c) communities? Yes – everything impacts on someone.
Q.30 Do you agree that the limitation restricting the permitted development right to buildings built on or before 31 December 1989 should be removed? Yes.
Q.31 If the permitted development right is amended to allow newer buildings to be demolished, are there are any other matters that should be considered? No.
Q.32 Do you agree that the permitted development right should be amended to introduce a limit on the maximum age of the original building that can be demolished? No.
Q.33 Do you agree that the Class ZA rebuild footprint for buildings that were originally in use as offices, research and development and industrial processes should be allowed to benefit from the Class A, Part 7 permitted development right at the time of redevelopment only? Yes.
Q.34 Do you think that prior approvals for the demolition and rebuild permitted development right could be streamlined or simplified? Yes – see previous answers (Q.11 and Q.26).
Q.35 Do you think that any of the proposed changes in relation to the Class ZA of Part 20 permitted development right could impact on: a) businesses b) local planning authorities c) communities? Yes – everything impacts on someone.
Q.36 Do you agree that the limitation that wall-mounted outlets for EV charging cannot face onto and be within 2 metres of a highway should be removed? Yes.
Q.37 Do you agree that the limitation that electrical upstands for EV charging cannot be within 2 metres of a highway should be removed? Yes.
Q.38 Do you agree that the maximum height of electric upstands for EV recharging should be increased from 2.3 metres to 2.7 metres where they would be installed in cases not within the curtilage of a dwellinghouse or a block of flats? Yes.
Q.39 Do you agree that permitted development rights should allow for the installation of a unit for equipment housing or storage cabinets needed to support non-domestic upstands for EV recharging? Yes.
Q.40 Do you agree that the permitted development right should allow one unit of equipment housing in a non-domes¬tic car park? Yes.
Q.41 Do you agree with the other proposed limitations set out at paragraph 60 for units for equipment housing or stor¬age cabinets, including the size limit of up to 29 cubic metres? Yes..
Q.42 Do you have any feedback on how permitted development rights can further support the installation of EV charg¬ing infrastructure? No – but it needs to be simple to do.
Q.43 Do you think that any of the proposed changes in relation to the Class D and E of Part 2 permitted development right could impact on: a) businesses b) local planning authorities c) communities? Yes – everything impacts on someone.
Q.44 Do you agree that the limitation that an air source heat pump must be at least 1 metre from the property boundary should be removed? Yes – but it must face away from the boundary.
Q.45 Do you agree that the current volume limit of 0.6 cubic metres for an air source heat pump should be increased? Yes.
Q.46 Are there any other matters that should be considered if the size threshold is increased? No.
Q.47 Do you agree that detached dwellinghouses should be permitted to install a maximum of two air source heat pumps? Yes.
Q.48 Do you agree that stand-alone blocks of flats should be permitted to install more than one air source heat pump? Yes – but omit the words stand alone because many blocks of flats touch their neighbours but still have space at the rear, etc..
Q.49 Do you agree that the permitted development right should be amended so that, where the development would result in more than one air source heat pump on or within the curtilage of a block flats, it is subject to a prior approval with regard to siting? No – prior approval is unnecessary because landlord and/or other leaseholder permissions are sufficient.
Q.50 Are there any safeguards or specific matters that should be considered if the installation of more than one air source heat pump on or within the curtilage of a block of flats was supported through permitted development rights? No.
Q.51 Do you have any views on the other existing limitations which apply to this permitted development right that could be amended to further support the deployment of air source heat pumps? Yes – remove all prior approvals and other limitations.
Q.52 Do you think that any of the proposed changes in relation to the Class G of Part 14 permitted development right could impact on: a) businesses b) local planning authorities c) communities? Yes – everything impacts on someone.
Brownfield Land consultation – our response
Q1. Do you agree we should change national planning policy to make clear local planning authorities should give significant weight to the benefits of delivering as many homes as possible? YES
Q2. Do you agree we should change national planning policy to make clear local planning authorities should take a flexible approach in applying planning policies or guidance relating to the internal layout of development YES, but subject to national space standards and other requirements of Building Regulations, Rights of Light, etc which do not need to be part of planning permissions.
Q3. If we were to make the change set out in question 2, do you agree this change should only apply to local policies or guidance concerned with the internal layout of developments? YES
Q4. In addition to the challenges outlined in paragraph 13, are there any other planning barriers in relation to developing on brownfield land? The proper identification and updating of brownfield registers, etc. by local planning authorities (for example the majority of sites registered in Richmond upon Thames are either already developed or have current planning permissions). And realistic economic viability assessment by the LPA.
Q7. Do you agree we should make a change to the Housing Delivery Test threshold for the application of the Presumption in Favour of Sustainable Development on previously developed land? NO – it should not be the responsibility of local authorities to provide housing in this way. Housing development should not be taxed.
Q13. Do you think the current threshold of 150 residential units for referral of a planning application of potential strate¬gic importance to the Mayor of London is the right level? NO – 150 units is not that important enough for the Mayor to be involved – not sure that the Mayor should be involved at all. n