Build, build, build – new residential permitted development rights unpacked

The government has published a number of new permitted development rights due to take effect at the end of the summer.  The rights allow existing residential properties to be demolished to make way for new dwellings.  There are also new upwards extension rights for certain dwellings and commercial premises to create new, self-contained residential dwellings.  The article that follows is a fairly detailed, but not an exhaustive, summary of the new rights.  We would be delighted to assist with any individual queries.

Demolish and rebuild – what, when, how?

From 31 August 2020, new permitted development rights allow the demolition of either:

1. a single purpose-built block of flats; or
2. a single detached building that was previously used for offices, research & development and/or light industrial processes…

and their replacement with either:

1. a single purpose-built detached block of flats; or
2. a single purpose-built detached dwelling.

The new right allows ancillary works to be carried out including provision of a new basement, removal of services, plant, accesses and waste facilities and their re-installation into the new building and temporary scaffolding to be erected.

What you can and can’t do

There are no fewer than 20 pre-conditions which limit the new permitted development right.  These include (but are not limited to):

• a prior approval process which covers 13 planning impacts including design and external appearance; the provision of adequate natural light in habitable rooms; and amenity of intended and neighbouring occupiers;
• the building to be demolished must have been vacant for at least 6 months before the date of the prior approval application;
• the demolition and rebuild must be completed within 3 years of the date of the grant of prior approval i.e. it is not a stand-alone demolition right;
• the right does not apply to new residential buildings on previously cleared land;
• the existing building must have been built before 1 January 1990;
• the right does not apply to terraced buildings, detached dwellinghouses or mixed used buildings other than those with a mixed B use class;

• the footprint of the old building must not exceed 1,000m2 and the new building must fall entirely within the footprint of the old building;
• the new building cannot exceed 18 metres in height;
• the new building cannot be more than 7 metres, and 2 storeys, higher than the old building;
• the new building cannot come any closer to a highway than the old building;
• the right cannot be exercised in certain areas including Conservation Areas, Areas of Outstanding National Beauty, National Parks or where the property forms part of a listed building; and
• the new development must comply with Building Regulations.

Analysis

Clearly part of the government’s agenda to “build, build, build” and deliver more homes, more easily, these new permitted development rights are supposed to be part of a “more streamlined planning process” through a “light-touch prior approval process”. 

Reading through the list of pre-conditions to the exercise of the new rights, and the level of detail to be submitted with the prior approval application process, it is hard to see how the prior approval process can be described as “light-touch” given the level of detail to be provided, and the amount of subjective planning judgment that will be exercised at prior approval stage.  

This is hardly surprising, as the new rights were announced on the same day as the results of a government review into housing delivered through permitted development which concluded that permitted development conclusions created “worse residential quality environments” in terms of space standards, natural light and amenity space, largely due to location and internal configuration. 

The new rights also leave open questions as to what constitutes “adequate” natural light and the correct standards for measuring adequacy, and when a building can be said to have been “vacant”.

However, the new rights do steer the provision of new residential development through permitted development in the right direction for end-users and there are cost-savings to be won in terms of application fees.  Whether or not the new rights really do offer greater planning certainty, as the government claims, is debatable: there is no deemed consent if the prior approval application is not granted within 8 weeks, so developers will either have to wait for a decision or appeal using the normal appeal route.

Upwards extensions on existing dwellings

What’s new?

From 31 August 2020, permitted development rights will allow:

• Up to 2 additional storeys on an existing dwelling of 2 storeys or more; or
• 1 additional storey on a single storey dwelling; or

but only above the existing highest storey i.e. you can build up, but not down.  Associated engineering operations are included within the upwards extensions right.

Which dwellings have the benefit of the new right?

• Existing dwellings constructed between 1 July 1948 and 28 October 2018;
• Existing dwellings which have not already added additional storeys;
• Detached, semi-detached and terraced houses, but the permitted height of the extended dwelling differs depending on the type of dwelling.

It is important to note that dwellings which are in C3 use following certain specified existing changes of use, including a change from office, retail, light industrial and agricultural to residential, are not entitled to benefit of the new rights.

What you can and can’t do

There are a number of different possibilities in the new rights depending on the type of dwelling being extended.  Please consult us for further details but some over-arching points to bear in mind are:

• prior approval is required on a number of specified grounds including design and external appearance; the provision of adequate natural light in habitable rooms; and amenity of intended and neighbouring occupiers;
• the additional storey must be constructed on the principal part of the dwelling;
• no new windows may be added to a side elevation to prevent overlooking;
• existing accommodation in the roofspace of a property, such as a loft conversion, is not  considered to be a storey for the purposes of these new rights;
• where the property is terraced, the new dwellings must be flats;
• there is an overall height limit of 18 metres for a newly extended dwelling, and houses in a terrace cannot be more than 3.5 metres higher than the next tallest house in the terrace;
• engineering works to strengthen existing walls and foundations are permitted, but no other engineering works are permitted;
• prior approval is required and conditions can be imposed on the grant of prior approval.
• Once obtained, the development must be completed within 3 years;
• properties in certain areas, including Conservation Areas, cannot benefit from this right.

New residential on existing detached commercial/mixed use buildings

What’s new?

From 31 August 2020, two additional storeys of new residential flats can be added above the existing highest storey of detached buildings currently in existing specified commercial or mixed uses.

Which properties will have the benefit of the new right?

Detached properties built between 1st July 1948 and 5th March 2018 which are at least 3 storeys above ground and currently used for:

1. retail, financial and professional services, restaurants and cafes, offices, betting shops, pay day loan shops and launderettes; or
2. a mixed use which either combines two or more of the uses referred to immediately above, or combines a C3 (dwellinghouses) use with one or more of the uses referred to immediately above;
3. single family dwellinghouses (i.e. use class C3).

What you can and can’t do

Again, the rights are subject to a number of limitations and exclusions including:

• prior approval is required on a number of specified grounds including design and external appearance; the provision of adequate natural light in habitable rooms; and amenity of intended and neighbouring occupiers;
• the maximum height of the extended building must be no higher than 30m;
• the additional storey must be constructed on the principal part of the building;
• engineering works to strengthen existing walls and foundations and provide replacement utility services are permitted, but no other engineering works are permitted;
• the right is not available if there is existing plant on the building;
• the development must take place within the curtilage of the existing building and cannot extend beyond the footprint of the existing building;
• properties in certain areas, including Conservation Areas, cannot benefit from this right.

New residential on existing terraced commercial/mixed use buildings

What’s new?

This right largely mirrors the new right for existing detached commercial/mixed use buildings, with a few key differences including:

• if the existing building is one storey, only one additional storey can be added.  For all other buildings, no more than two additional storeys can be added;
• the maximum height of the newly extended building cannot exceed 18m;
• the existing building cannot have been extended upwards already.