Changes to Permitted Development Rights

The government has published new rules expanding existing permitted development rights to allow the upwards extension of certain properties and allow the replacement of existing buildings to provide new housing without planning permission.
​The rules, which will come into effect by September, will mean full planning applications will not be required to demolish and rebuild unused buildings as homes and repurpose commercial and retail properties.
The Government believes that these legislative changes will reduce pressure to build on greenfield sites and deliver more homes that fit the character of their local area without the red tape typically associated with planning applications.
Upwards extensions of dwellings
The new legislation means that from 31st August 2020, existing houses built between 1st July 1948 and 28th October 2018 can be extended upwards to provide additional living space with prior approval from the local planning authority.
The legislation specifically allows for:

• Up to two additional storeys (7 meters) can be added to a house of two or more storeys to a maximum height of 18 meters;
• One storey (3.5 meters) can be added to a single storey house; and
• The roof height of semi-detached or terraced properties must not be increased by more than 3.5 meters.

It is important to note the legislation allows for the two additional storeys that can be added to a house to comprise flats instead of an extension. However, the house must already comprise three or more storeys to a maximum height of 18 meters.
In order to qualify the existing buildings must not be located, or form part of:

• Article 2(3) Land (i.e. protected land such as Conservation Areas, listed buildings, National Parks)
• A site of special scientific interest;
• A listed building or land within its curtilage;
• A scheduled monument or land within its curtilage;
• A safety hazard area;
• A military explosives storage area; or
• Land within 3 kilometres of the perimeter of an aerodrome.

These are the same qualification criteria for upwards extensions of new flats on houses and commercial and mixed-use properties.
Applicants for additional living space must apply for prior approval on the following grounds:

• Design and external appearance;
• Residential amenity of neighbouring properties;
• Air traffic and defence assets; and
• Whether the development will impact protected views.

The prior approval grounds for upwards extensions of new flats are detailed further below.
Upwards extensions of commercial and mixed-use properties
From the 31st August 2020, the legislation also allows for commercial or mixed-use properties built between 1st July 1948 and 5th March 2018 to also be extended upwards to provide new flats with prior approval.
The legislation considers a commercial building to comprise a building which is used for any purpose within Class A1 (shops), Class A2 (financial and professional services), Class A3 (restaurants and cafes) or Class B1(a) (offices) of the Schedule to the Use Classes Order (UCO), or as a betting office, pay day loan shop or launderette.
A ‘mixed use’ in this context is defined as using two or more of the defined commercial uses or existing C3 housing together with one or more defined commercial use.
It is pertinent to highlight the government has also introduced changes to the UCO which will come in to effect from 1st September 2020. For the time being, in the context of permitted development rights, changes to the UCO should be disregarded as the legislation specifically states the that between 1 September 2020 and 31 July 2021 any references to the UCO within the GPDO should be read as if the UCO had not been amended on 1 September.
As with houses, the legislation allows for up to two additional storeys (7 meters) to be added commercial or mixed-use property of three or more storeys to a maximum height of 18 meters (or 30 meters in cases involving detached buildings in commercial or mixed use).
Applicants for new flats (including on top of houses) must meet the aforementioned qualification criteria and apply for prior approval on the following grounds:

• Transports and highways;
• Air traffic and defence assets;
• Land contamination;
• Flood risk;
• Design and external appearance;
• Internal natural light levels;
• Residential amenity of neighbouring properties;
• Noise;
• Impact of the residential use on business; and
• Whether the development will impact protected views.

Replacement of Commercial Buildings and Flats with Housing
An additional piece of new legislation allows purpose built residential blocks and B1 buildings (B1a (offices), B1b (research and development) and B1c (light industrial)) as defined in the 1987 UCO on 12 March 2020 (or a combination of both) to be replaced with new housing subject to prior approval.
To benefit from permitted development rights the building must be replaced by new housing which can comprise a single detached house or a detached block of flats. There are a number of conditions expressed in the legislation that must be complied with, including that:

• The site not be located, or form part of Article 2(3) Land, a site of special scientific interest, a listed building or land within its curtilage, a scheduled monument or land within its curtilage, a safety hazard area, a military explosives storage area, or land within 3 kilometres of the perimeter of an aerodrome;
• The site not be occupied in any part under an agricultural tenancy, unless the express consent of both the landlord and the tenant has been obtained;
• The existing building was built before 1st January 1990 and was still be existence on 12 March 2020;
• The existing building was vacant for at least six months prior to the application;
• The existing building is free-standing;
• The existing building does not exceed 18 meters in height (excluding plant, radio masts and antennae);
• The existing building must have a footprint of less than 1,000sqm; and
• The new building does not extend outside of the footprint of the existing building.

Applicants must also apply for prior approval on the following grounds, which is more extensive than that for most other prior approval procedures:

• Transports and highways;
• Land contamination;
• Flood risk;
• Design and external appearance;
• Internal natural light levels;
• Residential amenity of neighbouring properties;
• Noise;
• Impact of the residential use on business;
• Heritage and archaeology;
• Demolition method; and
• Landscaping.

This is not an exhaustive list as paragraph 14 of the prior approval procedure notes that developers may be required to submit additional information such as assessments of risks and how risk/impacts will be mitigated having regard to the 2019 National Planning Policy Framework (NPPF). It should be highlighted that there is no requirement to refer to the development plan however the local authority must have regard to the NPPF where relevant as if the application were a planning application.
In addition, a local planning authority may refuse a prior application if it considers that the proposed building/site does not meet the conditions outlined in the legislation, or if it is deemed insufficient information has been submitted to make a decision. It is possible however to appeal such a decision. It should also be noted that each building proposed to be demolished must be the subject of an individual prior approval application.