Stuart Tym outlines the permitted development rights and other planning measures available to meet the challenge posed by the Covid-19 pandemic.
In the UK, the government has converted – or is in the process of converting – business centres, warehouses and even the car park at Chessington World of Adventures into medical facilities. (The drop-in testing facility at Chessington is likely to benefit from Part 4, Class B of the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO) – the temporary use of open land for any purpose (not more than 28 days)).
But what are the planning statuses of these changes? The conversion of the ExCel conference centre in Newham, east London was in breach of planning at the point of opening with a retrospective application validated on 26 March 2020.
The Town and Country Planning (General Permitted Development) (Coronavirus) (England) (Amendment) Order 2020 came into force on 9 April 2020. It brings into place a new Part 12A to the GPDO on land owned, leased, occupied or maintained by a local authority or health service body for emergency development. The development permitted is broad and limited in terms of new buildings not exceeding six metres within 10m of the boundary or 18m or the highest part of the roof as appropriate. The new permitted development right (PDR) is temporary – only lasting until 31 December 2020 – with those temporary works removed within 12 months of installation.
The planning status of the NEC and airport in Birmingham, Manchester Central Conference Centre, and the Principality Stadium do not appear to have updated; despite works having been begun on each. The new PDR is not retrospective so it remains to be seen how those which began works, or were open to the public before the new PDR came into force will be governed.
This leads to the question: what powers may be available to the government or private landowners? How can landlords put vacant units to good use to support the government’s efforts to minimise the spread of coronavirus and, in due course, be flexible with their own property to assist with the economic recovery? What potential is there to convert (potentially vacant) commercial property under permitted development rights (PDRs) to these sorts of facilities or to (temporary) residential accommodation?
There is already a range of PDRs that enable either permanent or temporary changes of use of commercial properties which may be useful to property owners. None of these allow temporary residential uses. Some hotel owners have already lent their buildings for the greater good – for example, housing NHS workers who are in isolation between working shifts. This is clearly no different to the current use of those buildings (subject to the charitable status of the daily rate) but the suggestion that hospitals could use nearby hotels as an overflow would trigger a change of use from C1 to C2, C2A or D1, for which there was no current PDR until 9 April.
Available permitted development rights
Schedule 2, Part 4 of the GPDO contains the PDR for temporary buildings and uses. Any shop, professional office, restaurant, cafe, takeaway, office, non-residential institution, place for assembly and leisure or betting or payday loan shop (building and curtilage land) can change to a flexible use falling within those uses – which includes Class D1(a), the provision of any medical or health services except the use of premises attached to the residence of the consultant or practitioner – for a single continuous period of up to three years.
A D1(a) medical facility is a day treatment centre; a full-service hospital allowing for an overnight stay would remain a C2 facility and PDR is not available for that change, even on this temporary basis. This is limited to areas within a building of less than 150 sq m (1,615 sq ft) of floorspace with no previous history of utilising this PDR. The LPA must be notified but this does not appear to be a power of prior approval.
Changes of use
Schedule 2, Part 3 of the GPDO covers more generally the permanent changes of use which are available, as follows:
A, B and sui generis uses
- Class G – shops/finance and professional/payday loan or betting shops can change to mixed use to include two flats. The lowest part of the building must continue as the non-residential use, particularly where there is a shop display window. The flat must be a C3 flat, not in any way a house in multiple occupation (HMO). It is unclear whether the non-residential use which remains must continue to be in use or just laid out for and available for use, given that it being kept in use is very much subject to there being an available user. Prior approval is not required for this change.
- Class I – industrial business conversions; any B2 or B8 can change to a Class B1. More importantly (if responding to a need to provide food delivery during lockdown), any use falling within Class B1 or B2 can change to a use for any purpose falling within Class B8 (storage or distribution). Not more than 500 sq m (5,382 sq ft) of additional B8 space can be created or lost. Prior approval is not required. One query at this stage is whether an urgent need for larger storage areas may be required, and whether a change to the GPDO is required to allow this.
Residential changes
- Classes M and N – new residences of less than 150 sq m can be created from shops, professional service offices, takeaways, amusement arcades, casinos, betting offices, payday loan shops or launderettes.
- Classes O and P – office space can be converted to residential without a size limit across the board on space lost. Storage or distribution of less than 500 sq m can also be converted to residential, as can light industrial.
- Class Q – agricultural buildings can be changed to not more than three large dwelling houses or not more than five smaller dwelling houses.
In all cases a prior approval notification is required.
- Class R – agricultural buildings (not exceeding 500 sq m) can be converted to a flexible use including shops, professional services, restaurants and cafés, business, storage or distribution, hotels or assembly and leisure. Prior approval is required for changes in excess of 150 sq m.
A word of caution
There is already quite a broad allowance in Class T for a change to a state-funded school or nursery. A nursery or school is a D1 use, as is a clinic, health centre or day hospital (to the extent that it is not a C2). This PDR is very specifically not for other changes within the D uses, so cannot be used to see other forms of treatment centre brought online (freeing up hospital capacity).
Class U, however, does allow the conversion back of a nursery or school converted under Class T to its previous lawful use, which may be of interest if you are running such a facility in an old NHS property. This is subject to a power of prior approval by the LPA, albeit the conversion back under Class U does not appear to be. The new PDR right, for temporary emergency development may well assist as long as the occupier is a local authority or health service body.
Crown land
Schedule 2, Part 19, Class Q of the GPDO allows development by or on behalf of the Crown on Crown land for the purposes of (a) preventing an emergency; (b) reducing, controlling or mitigating the effects of an emergency; or (c) taking other action in connection with an emergency. The LPA must be notified, and the power is for six months only.
An emergency for the PDR is an event or situation which threatens serious damage to (a) human welfare in a place in the UK; (b) the environment of a place in the UK; or (c) the security of the UK.
An event or situation threatens damage to human welfare only if it involves, causes or may cause (a) loss of human life; (b) human illness or injury; (c) homelessness; (d) damage to property; (e) disruption of a supply of money, food, water, energy or fuel; (f) disruption of a system of communication; (g) disruption of facilities for transport; or (h) disruption of services relating to health.
There seems little doubt on this definition that we are in a state of emergency at present and this power is open to the government on Crown land. However, many of the super-large event spaces mooted for conversion are in private ownership, so the requirement for the PDR to be exercised only on Crown land makes it difficult to apply. The six-month PDR also does not sit easy with the other 12-month powers being enacted. It is noted that the new Part 12A of the PDR relates to the predefined human welfare definition only.
Authorisation by a local or private Act or the LPA
In addition, development is authorised by Part 18 if it is authorised by a local or a private Act of Parliament designating specifically the nature of the development authorised and the land on which it may be carried out. Both the Crown (Part 19) and local authorities (Part 12) also maintain a power to erect or construct any small ancillary building, works or equipment on their land required for operational purposes or for any purposes outside their roles as statutory undertakers. Such a building is not to exceed 4m in height or 200 cubic metres (7,063 cubic feet) in capacity. In addition, the Crown can extend or alter any operational building, and this expressly includes the provision of employee facilities, not to exceed 1,000 sq m (10,764 sq ft).
Is more needed?
The government is preparing to consult on current practices and ways to enhance the planning system in its spring white paper. The first edit to this article suggested that should further tweaks to the PDR system be allowed for in that paper, or could come sooner under delegated powers; the actions today have answered in part the question. Two new PDRs in the space of three weeks is certainly positive action.
Stuart Tym is a senior associate in the planning team at Irwin Mitchell
