09.06.2023

The puzzling politics of permitted development rights

On 18 May, DLUHC issued its response to Levelling Up, Housing and Communities Select Committee's report on permitted development rights.

The response is interesting not so much because of its content, but because of what it reveals about the Government's approach to the planning system as a whole and also the bizarre strain of double-think that appears have taken hold about  the role of permitted development rights within it. An issue that has only become more pertinent, given the events of the last few weeks.

A quick history lesson, for those who need it: 

• In March 2021, the Select Committee opened an Inquiry into the role of permitted development rights in the planning system. The inquiry was prompted by the introduction of the Class E to Residential PD Right.
• The Select Committee published its report on 22 July 2021. The report made a number of recommendations, which can be broadly summarised as follows:
  • That  the Government pause any further extensions of permitted development rights for change of use to residential and conduct a review of their role within the wider planning system. 
  • to simplify and amend the prior approval process to take into account a wider range of planning considerations; and increase the fees associated with them; 
  • to revisit the amendments made to paragraph 53 of the National Planning Policy Framework to tighten the requirements for Article 4 directions
  • to review the introduction of both Use Class E and the Class MA PD Right 
  • to amend rights that allow conversion to residential uses to allow that they require  the installation of windows as part of the requirement for adequate natural light; the provision of outdoor private or communal amenity space; and enabling councils to require the provision of specific types or tenures of housing units; and
  • ensure that permitted development contributes towards the cost of providing infrastructure and affordable housing 

The Government's response to the Select Committee report comes almost two years after they first received it; and it is certainly an interesting read. Particularly, in the context of the wider changes that have recently been (or are still being) consulted upon.

Unsurprisingly,  the Government has doubled down on its love of PD rights, which it says "continue to play an important role in a reformed planning system" and "Importantly ...have delivered over 94,000 homes in the seven years to March 2022".

Given that the Government is currently consulting on two separate proposals to expand the use of PD Rights, and has just promised to consult on a third, this response was inevitable.

The reasons given for rejecting the Select Committee's recommendations, however, are occasionally a little odd. 

In its response to a concern about an apparent disconnect between the expansion of PD rights with the Government's wider planning reform agenda, it states: "Any new permitted development rights, or amendments to existing rights, would, as usual, be subject to careful consideration including the matters for prior approval and how they can support our wider reform agenda. Good design and placemaking that reflects community preferences is a key objective for the planning system. Through the Levelling Up and Regeneration Bill, we will require every local planning authority to produce an authority wide local design code."

This response misses the fact that the relevant provisions in the LURB (clause 15F) doesn't tie PD rights into the authority wide local design code.  In fact, unless design and appearance is in someway included in the relevant prior approvals process, Local Authorities are prohibited from taking them into account. That is, of course, assuming that the PD Right in question allows you to alter the external appearance of the building in the first place, or indeed requires prior approval. Many of them don't. 

Later on in the response, we get the following: 

"Permitted developments rights create new homes and support housing delivery, providing additional homes for sale or rent, some of which may not otherwise come through the planning system. While the rights make an important contribution to housing delivery, they none-the-less have contributed a total of 6% of the national total of net additional housing since April 2015. It is vital therefore that, as required by the National Planning Policy Framework, local planning authorities continue to plan for the volume and balance of housing types to meet local need, and to set this out in their local plans"

Whilst this may not seem unusual on the face of it, it is certainly out of date. Earlier this year DLUHC consulted on a number of changes to the NPPF, which would significantly water down the obligation on local planning authorities to meet their housing needs in full through their local plans. The proposed revisions to the framework would only require councils to meet "as much" of their housing needs "as possible". The changes also include  express caveats stating that councils did not need to meet the housing needs of their area if doing so would require the release of greenbelt land or building at densities that are significantly out of character with the surrounding area.

The general consensus seems to be that the result of these changes will be a significant reduction in the overall amount of housing coming forward through local plans. If that comes to pass, then the proportion of new homes delivered through PD Rights is likely to increase from 6% of the national total of net additional housing since April 2015.

If you were feeling cynical, you might conclude that this was precisely the point. If the government is committed to the proposed changes to the NPPF* then they NEED to expand PD rights to make up the numbers. They appear to be seen by central government as a way of circumventing the scrutiny (both professional and political) that comes from a full planning application - allowing DLUHC to acheive its priorities with minimal involvement from LPAs and the local plan policies that they may have adopted.

This cynical view could well be bolstered if you took a quick look at the many recent, ongoing or promised consultations on PD Rights. 

In the last couple of months DLUHC has:

• consulted on changes to permitted development rights to support temporary recreational campsites, renewable energy and film-making - this consultation closed in April.
• consulted on the introduction of a new use class for short term lets and associated permitted development rights - which closed on 7 June 2023; 
• consulted on how to make High Street Rental Auctions work - a consultation which includes the creation of two new permitted development rights to allow the units being auctioned to be used for a range of designated 'high street uses' without applying for planning permission. This consultation closes on 23 June 2023; and
• Promised to consult on two further sets of changes to PD rights:
  • A review of current agricultural PD rights with the aim of making agricultural development more flexible for farmers so they can amend their existing agricultural buildings to make them more productive; and
  • a second consultation on amending existing permitted development rights to make it easier for farmers to change their existing agricultural buildings to homes.

If nothing else, it does rather confirm that DLUHC meant it when they told the select committee that it believes "that permitted development rights can continue to play an important role in the planning system alongside our wider planning changes." In fact, it seems that they are increasingly being used as way of filling the gaps left or solving perceived problems caused by the wider reform agenda (or highlighted by popular tv shows about farming).

*and they might not be. The jury is still out on that one.

We believe that permitted development rights can continue to play an important role in a reformed planning system: reducing planning bureaucracy for householders, businesses, and local planning authorities; supporting statutory bodies, including local authorities, in the discharge of their duties; helping to deliver housing and supporting our high streets. Individual rights allow our schools and hospitals to expand, our farmers to diversify, and householders to expand their homes to accommodate growing families. Importantly such rights have delivered over 94,000 homes in the seven years to March 2022. As further demonstration of the value of such rights, we have recently consulted on new and amended permitted development rights to support growth, tourism and the British Energy Security Strategy.”