Following swiftly on the close of the government’s last consultation[1] on proposed changes to the Town and Country Planning (General Permitted Development) Order 2015 (the GPDO), on 13 February 2024 the government published a further consultation[2] on yet further liberalisations of (amongst others) the upwards extension permitted development rights (PD Rights) contained in the GPDO. The two consultations overlap in some respects, and hence the following outlines both the scope of the upward extension PD rights and the most recent government proposals. As at the date of writing, the second consultation remains open and responses are encouraged.
Planning Permission and Permitted Development Rights.
As a rule, the development of land in England and Wales requires planning permission (Town and Country Planning Act 1990, (the TCPA) s. 57). That planning permission can be granted either in response to a planning application or by way of a development order such as the GPDO. The benefit of the GPDO regime is that it allows a developer to get on with their development without the delay, costs and uncertainty involved in many express planning applications.
At its most straight forward, the GPDO grants an automatic planning consent for uncontroversial developments such as small residential extensions. The PD Rights are usually subject to a limited number of conditions (e.g. relating to the scale of the development and its materials), and in simple cases, the local planning authority (the LPA) is not involved at all.
Over the years the PD Rights regime has expanded to include more controversial cases, e.g. telecommunication masts to support the role-out of the mobile phone network. The rationale is that these developments are of sufficient economic importance and have sufficiently limited adverse impacts, that they should not be held up by the delays and uncertainties that often plague local planning control. To balance local concerns, these more controversial cases are controlled by a more detailed set of conditions, including in most cases a prohibition on exercising the relevant right in respect of a listed building, within a conservation area, a World Heritage Site, within an Area of outstanding natural beauty, a national park, the Broads or areas specified under section 41(3) of the Wildlife and Countryside Act 1981.
In addition, the more controversial cases often require ‘prior approval’ by the relevant LPA of a limited number of impacts, including visual impacts. In such cases, the permission only ‘crystalises’ on the LPA’s grant of prior approval (Orange Personal Communications Services Ltd. v Islington London Borough Council [2006] EWCA Civ 157).
Upward Extension Permitted Developnment Rights
In August 2020, and with a nod towards the housing shortage, the government introduced the following range of new upward extension PD Rights with a view to create new or extend existing homes and thereby increase the supply of homes:
| Class AA (GPDO, Schedule 2, Part 1) | Enlargement of an existing dwelling house by up to two storeys on a two or more-storey house, or one storey on a single storey house (NB: this is a right for an upwards extension, not a separate home) |
| Class A (GPDO, Schedule 2, Part 20) | Up to two additional storeys of dwellings on an existing, detached block of flats of 3 or more storeys constructed between |
| Class AA (GPDO, Schedule 2, Part 20) | Up to two additional storeys of dwellings on a detached commercial/mixed use buildings of 3 or more storeys |
| Class AB (GPDO, Schedule 2, Part 20) | Up to two additional storeys of dwellings on a commercial/mixed use terrace building with two or more storeys, or one additional storey on terrace building with a single storey |
| Class AC (GPDO, Schedule 2, Part 20) | Up to two additional storeys of dwellings on a two-storey residential terrace in use as a single dwelling or one additional storey where the terrace comprises a single storey |
| Class AD (GPDO, Schedule 2, Part 20) | Up to two additional storeys of dwellings on a detached two or more storey existing single dwelling, and one additional storey on an existing single storey dwelling |
The Part 1 Class A Right (i.e. extending a home as opposed to creating a new dwelling) only applies to houses constructed between 1 July 1948 and 28 October 2018, while the Part 20 PD Rights (i.e. creating new dwellings) only apply where the existing building was constructed between 1 July 1948 and 5 March 2018. 1 July 1948 is when the first comprehensive Town and Country Planning Act 1947 came into effect across England and Wales, but otherwise, has no particular significance.
All the above rights are subject to an extended set of conditions, including (amongst others) a requirement to secure the LPA’s prior approval of issues such as:
- transport and highways impacts;
- the external appearance of the building; and
- the impact on the amenity of existing buildings and neighbouring premises.
The prior approval procedures are contained at Part 1, para AA.3 (Part 1, Class AA PD Right) and Part 20 Class, A, para B (the Part 20 PD Rights). In both cases, in reaching its decision on prior approval the LPA is required to have regard to the policies in the government’s National Planning Policy Framework.
Recent cases on the prior approval process have established the following:
- Applying the NPPF policy too rigorously could frustrate the purpose of the PD Right which is to increase the supply of housing. The bar for deciding whether a proposed PD development was unacceptable when assessed against NPPF policy, should therefore be set higher than in the case of a normal planning application.[3]
- In deciding whether or not to grant prior approval, the LPA can consider the appearance of the building and its visual impact on its surroundings, and not just the appearance of the building in isolation.[4]
An additional one or two storeys on a relatively average one or two storey building, may appear out of character with an area, particularly if it is the first in its immediate area, and may therefore fail to secure prior approval. It is therefore unsurprising that government research[5] reports that up to November 2023 and across England as a whole, only 1,022 new homes had been created using the new upward extension rights. This contrasts sharply with the delivery of an additional 9,492 new homes through change of use permitted development rights over the same period.
The Consultations
The first question in the government’s now closed July 2023 GPDO consultation sought responses on whether “the prior approvals for design or external appearance … should be replaced by consideration of design codes where they are in place locally” and what the impact of any such change would be. We still await the government’s response to this consultation, but it would appear to be a sensible approach, and one which is hopefully carried forward to legislation.
The February 2024 consultation which is still open suggests two potential reforms of the upward extension PD Rights:
- Q. 25: “Do you agree that the limitation restricting upwards extensions on buildings built before 1 July 1948 be removed entirely, or amended to an alternative date (e.g. 1930)?” and
- Q.26: “Do you think that the prior approvals for the building upwards permitted development rights could be streamlined or simplified?”
Starting with Question 26; prior approval is required of the less objectively measurable impacts of a development, such as its impacts on neighbouring amenity. The residential change of use PD Rights were initially heavily criticised for delivering poor quality homes (some of which had no natural daylight or were unreasonably small). If the upwards extension PD Rights are to avoid creating a similar legacy of inadequate homes and neighbourhoods, the government needs to be careful that they are subject to adequate scrutiny. The amenity controls of the prior approval regime are necessary and should remain.
As regards Question 25, this firm can think of no particular reason why the upwards extension PD Rights should be limited to buildings built after 1 July 1948 (or after 1930). On 5 October 2023 the HBF reported[6] that 38% of the UK’s housing stock was built before 1946. Hence continuing to limit the benefit of the upwards extension PD Rights to buildings built after 1 July 1948 is likely to frustrate any useful impact from the rights on the delivery of new homes.
Inevitably, if the July 1948 restriction is relaxed, there will be locally notable albeit unlisted buildings, outside of conservation or any other protected areas, for which prior approval is sought. However, even then inappropriate proposals should still be filtered out by the need to secure prior approval in respect of their appearance (particularly if assessed in the context of a considered design code) and their impact on neighbouring amenity. Hence, it is difficult to see why a cut-off date needs to be imposed.
Final Thoughts
UK cities are amongst the least densely developed in Europe[7]. The government is right to promote the ‘gentle densification’ of our cities and towns, both as a response to the housing crisis, and with a view to improving sustainability. Converted or extended buildings are not always the optimal solution. However, upwards extension PD Rights enshrine a principle of more efficient use of existing residential and commercial land. As the right becomes more flexible and more widely applied, it should encourage planning applications to redevelop and densify existing residential plots, relying on a fall-back of an upwards extension prior approval or a related certificate of lawfulness. The upwards extension PD Rights alone cannot solve the housing crisis, but applied properly, they are a step in the right direction.
The latest PD Rights consultation closes on 9 April 2024. Responses should be submitted as soon as possible.
As a firm we receive substantive enquiries from developers proposing to utilise the PD rights, secure express planning permission and those wishing to object to such development. Our team of experts can assist in advising on any of these aspects.
[1] Consultation on additional flexibilities to support housing delivery, the agricultural sector, businesses, high streets and open prisons; and a call for evidence on nature-based solutions, farm efficiency projects and diversification, published 24 July 2023
[2] Changes to various permitted development rights: consultation – GOV.UK (www.gov.uk) published 13 February 2024.
[3] East Hertfordshire DC v Secretary of State for Communities and Local Government [2017] EWHC 465 (Admin) which concerned Class Q PD rights to convert agricultural buildings to houses.
[4] CAB Housing Limited v Secretary of State for levelling Up, Housing and Communities [2022] EWHC 208 (Admin) which concerned an additional storey on an existing, single storey dwelling under Class AA of Part 1.
[5] House of Commons Library, Research Briefing 6 March 2024, Planning In England: Permitted development and change of use.
[6] Housing Horizons: Examining UK Housing Stock in an International Context (hbf.co.uk)
[7] Cities need to become denser to achieve net zero | Centre for Cities
