Government introduces new permitted development right for two-storey extension of blocks of flats

England and Wales

The Government has introduced a new permitted development right (“PD Right”) for upwards extensions of existing blocks of flats. These extensions will now benefit from “automatic” planning permission and a streamlined application process.

The new PD Right

In late June, new planning regulations were introduced in response to the pandemic ("June Regulations")[1]. This included some new permitted development rights.

This new PD Right is for “new dwelling houses on detached blocks of flats” and will come into effect on 1 August 2020.[2] It allows the construction of up to two additional storeys of residential accommodation on top of existing, purpose-built blocks of flats.

A condition of this automatic planning permission is that the developer must apply to the Council for determination of whether prior approval will be needed in respect of certain specific matters.

Restrictions and exclusions

There are a number of criteria which must be satisfied if a development is to make use of the new PD Right including:

  • The existing building must be a purpose-built block of residential flats;
  • The building must have been built between 1 July 1948 and 5 March 2018; and
  • The new storeys must comprise flats.

The new PD Right only applies to blocks which were purpose-built as residential flats. It is not available to buildings which are in mixed use. If a small proportion of the building is office space or if there are retail units on the ground floor, the PD Right will not apply. The PD Right is therefore more likely to be used for low-rise residential blocks built specifically for use as flats. These are more commonly located outside of major city centres in smaller regional or seaside towns around the country, rather than as developments in major cities.

If the planning permission for residential use of the existing building was obtained through another permitted development right, then this new PD Right is not available.[3] This means that office blocks or retail units which have been converted to flats under the GPDO cannot be extended upwards under the new PD Right following the June Regulations.

There are also height restrictions which limit the new PD Right:

  • The additional storeys cannot exceed 3 metres in height, or the height of any existing storey, whichever is the lesser;
  • The overall height of the roof of building (as extended) must not exceed 7 metres above the highest part of the existing roof; and
  • The extended building cannot exceed 30 metres in height.

Also, listed buildings, and buildings within 3km of an aerodrome cannot be extended under this PD right.

Conditions and Prior Approval Requirements

As with existing PD Rights, the developer must apply for the Council’s prior approval of certain aspects of the proposed development.

The June Regulations specify that the Council’s prior approval is needed in respect of several additional matters. These include the provision of adequate natural light in all habitable rooms of the proposed new flats. This is more onerous than the existing prior approval process, and it will also apply to other pre-existing PD Rights.[4] The Government appears to have introduced it to try and address concerns that some homes previously created under existing PD Rights have been found to be poorly designed, and have lacked access to natural light.

Furthermore, floorplans specifying the dimensions of each room in the flats in the proposed new storeys must be provided with the prior approval application. The June Regulations also make this a requirement for some pre-existing PD Rights. Although, oddly, the prior approval process does not require Councils to form a judgment on whether the amount of space provided is adequate.

Comment

The use of permitted development rights to construct residential accommodation has been criticised, principally due to a small number of schemes that have delivered poor quality accommodation. In our experience of the use of other PD Rights homes constructed under these streamlined powers need not be compromised in terms of design or liveability.

Given the relatively limited circumstances in which the new PD Rights may be exercised it seems unlikely that they will be attractive to major developers looking to deliver large numbers of new homes.  In practice the PD Rights may assist individual homeowners and smaller scale developers looking to expand individual properties.

The new legislation gives some indication of the Government’s approach to permitted development: there will be no crackdown on the use of PD Rights, although developers should expect closer scrutiny of certain aspects of their designs.

In his recent “Build, Build, Build” speech, the Prime Minister suggested that further reforms to PD Rights may be in the pipeline. However, it appears that this new PD Right might have limited application. Ultimately, this might not be surprising, as permitted development rights lie at the intersection of several competing issues within the planning sector: building upwards versus building outwards onto Green Belt; and stimulating development to assist the recovery versus applying close controls over new development.