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Coronavirus planning update: Permitted Development Rights

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Author

Paul Brailsford

Partner, National Head of Planning & Environment

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Author

Mark Harris

Partner

What started as an epidemic limited to China has now become a truly global pandemic. Its effects have been felt throughout many sectors including those impacted by planning law, and below we set out the main changes and issues relating to new permitted development rights that you should be aware of as of 26 June 2020. The situation is constantly changing, and we will aim to provide the most up-to-date information where possible.

Further advice regarding the impact of the Coronavirus outbreak on planning law, and how to prepare for any impact on your business, is offered by the Freeths Planning team. Please contact us should you wish to know more.

New Welsh temporary permitted development rights for local authorities

The Welsh Housing and Local Government Minister has introduced emergency permitted development rights, which allow local authorities to change the use of buildings or create temporary structures on their land without planning permission. The new powers mean that Welsh councils can use leisure centres as temporary hospitals if they are needed to prevent or control an emergency. The Coronavirus outbreak has been classed as such an emergency. This action came after Betsi Cadwaladr University Health Board confirmed it had identified three sites in North Wales whilst additionally increasing capacity of existing hospitals. The Cardiff and Vale University Board has announced that the Principality Stadium in Wales had been selected to be converted into a temporary Hospital, with the potential capacity of an additional 2,000 beds. Back to the top

New broad English temporary permitted development rights for local authorities and health service bodies

As we predicted, England has followed Wales' lead and on 9 April introduced emergency permitted development rights for local authorities and health service bodies to carry out works and changes of use to carry out their roles to tackle Coronavirus on land owned, leased, occupied or maintained by them until 31 December 2020. There are limitations and conditions attached to these temporary rights, found in Part 12A of the legislation. For these purposes, emergency means “an event or situation which threatens serious damage to human welfare in a place in the United Kingdom.” The new legislation can be found here.On 13 May the Government clarified the broad scope, and ease of use, of the permitted development right by highlighting that “the rights could be suitable to provide permission for a range of uses including use as hospitals, health facilities, testing centres, coroner facilities, mortuaries, additional residential accommodation and storage and distribution, including for community food hubs. There is no application process, and health service bodies and local authorities who are not the planning authority are required only to notify the local planning authority of the use of the development on a site as soon as practicable after commencing development. We expect this will be by e-mail or in writing.” This new right will speed up the process and avoid planning applications having to be made for a very broad range of uses, furthering the current overriding Government's now revised objective in England to stay alert, control the virus and save lives. Readers may have seen reports that the London NHS Nightingale hospital has now been placed on standby after treating 'only' 51 patients in the first 21 days of opening. The change of use planning application made for the new London NHS Nightingale hospital has since been withdrawn. We will continue to follow news of the use of the new Nightingale hospitals across England and Wales and see how these new permitted development rights are used over the longer term, especially following the Government guidance issued on 13 May emphasising their width: the Government is clearly of the view that it wants to prevent the planning process to delay an effective response to the Coronavirus outbreak Back to the top

New PD right enabling pubs and restaurants to temporarily operate as takeaways

To assist with food supply and to help create new revenue streams for businesses, a temporary permitted development right was introduced in England on 24 March to allow pubs, cafes and restaurants to operate as takeaways (A5 use class) for a 12 month period provided that the developer notifies the Local Planning Authority (“LPA”) of the change. The temporary permitted development right will end on 23 March 2021. The Welsh Government has also introduced this temporary permitted development right.If you seek to take advantage of this right, you will need to ensure that the new use is permitted by your existing planning permission (i.e. it is not barred by an existing planning condition) and your property arrangements (i.e. your lease). If not, you will need to seek an amendment to your lease; however, we expect that landlords would be willing to allow amendments in the current climate. Whilst LPAs may decide it is not in the public interest to take enforcement action if the change of use is in breach of an existing planning permission condition, technically there is a breach, which may also put an occupier in breach of their lease. We wonder whether we may see a further Written Ministerial Statement from the Secretary of State asking LPAs to be pragmatic, as already issued regarding deliveries (see above), or an amendment to the National Planning Practice Guidance to specifically refer to the Coronavirus outbreak as a material consideration when exercising their discretion in determining the expedient and proportionate enforcement response. The right does not currently relate to the serving of alcoholic drinks. Serving alcoholic drinks is also subject to separate licensing laws, which are also being altered by the Business and Planning Bill. Back to the top

The “28 day” rule becomes the “56 day” rule

Readers may already have been aware of the “28 day rule” which allows sites to be used for a different use for no more than 28 days per calendar year without having to apply for planning permission. Between 1 July 2020 and 31 December 2020, a site can now be used for an additional temporary use for a further 28 days, and moveable structures provided on site for the purposes of the permitted use. However, of the additional 28 days, markets and motor car and motorcycle racing can only be held for a further 14 days.The right cannot be used where the land is a building or is within the curtilage of a listed building, the site is currently used as a caravan site or for displaying advertisements. Further, it cannot be used for sites of specific scientific interest which are used for motor car and motorcycle racing, clay pigeon shooting or any war game. Back to the top

Extended PD right to hold outdoor markets by or on behalf of a local authority in England

In addition to the above changes, from 25 June until 23 March 2021 a market can now be held, by or on behalf of a local authority, on an unlimited number of days. The supporting guidance indicates that: “these measures will enable the provision of additional space for markets for the sale of food, drink and other goods and holding outdoor events, helping businesses to operate safely”. The new PD right also allows the erection of moveable structures, such as stalls or awnings. The right does not benefit sites of special scientific interest. Back to the top

Will more prior approvals be deemed approved?

Before taking the benefit of certain permitted development rights an application must be submitted to the Local Planning Authority (“LPA”) for prior approval where the LPA will consider the proposed development, its likely impacts on limited topics and how those impacts could be addressed. Prior approvals which are not determined by the LPA within 56 days are deemed approved. The Government's Chief Planner in his March update to LPAs in England asked for prior approvals to be prioritised “so important economic activity can continue”. English LPAs have been urged in these exceptional circumstances to agree an extended approval date, if necessary. Worryingly the Chief Planner continued by saying: “Where agreement cannot be reached an authority may need to consider whether prior approval is refused if the application cannot be considered with the requisite attention”. From 1 August 2020,  a determination longer period than 56 days may be agreed between the LPA and the applicant in writing. Welsh LPAs have been asked to “be mindful that some applications for prior approval could result in deemed approval, so should promptly identify where an application is needed”. However, where the development does not contribute to a response to the Coronavirus outbreak Welsh LPAs have been informed that “applicants will need to understand [that] the subsequent submission of details may not be considered quickly”. Back to the top

Our Planning team can help you navigate the impact of Coronavirus on planning law and your business.  Contact Robert Bruce and Stephanie Gozney for planning-related legal enquiries and Paul Brailsford and Mark Harris for planning consultancy enquiries. This update was originally published on 8 April 2020 and was last updated on 29 June 2020.Whilst you are here we would also recommend our additional Coronavirus planning updates:

If you would like to talk through the consequences for your business, please email us and one of our team will get in touch.

 

The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.