Changes to permitted development rights in England to benefit university sector

Out-Law Analysis | 12 Jan 2021 | 10:39 am | 3 min. read

Proposed amendments to permitted development (PD) rights in England to extend existing rights for some existing public service infrastructure should give universities more flexibility to extend or repurpose existing assets.

The UK government introduced significant changes to ‘use classes’ for property in England in September 2020. The changes included the creation of a new learning and non-residential institutions class – Class F1 – and a new, wide, commercial, business and service class – class E.

The reforms were unsuccessfully challenged in the High Court by climate action lobby group Rights: Community Action, which indicated it would be lodging an appeal.

The government has now announced proposals for further changes to PD rights in England to change the use of certain buildings to residential and to extend existing PD rights for some existing public service infrastructure, and is consulting on the changes. There could be several benefits for universities and other higher education institutions to make changes to their estates if the proposals become law.

Flexibility for additional educational capacity on existing sites

Part 7 Class M of the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO) currently allows extensions to university buildings, subject to certain criteria being satisfied.

The proposed amendment will see an increase in the size of permitted extensions or new buildings from a current maximum of 25% of gross floorspace of the original buildings, with a maximum cap of 100 square metres, to 25% of the footprint of the current buildings on the site, or up to 250 square metres, whichever is the greater. In addition, the height limit of new buildings would be raised from 5 metres to 6m, subject to criteria.

However, to benefit from the right, the existing site would already have to have sufficient land to build the extension or new building.

Although no planning application would be required, the extension or new building would need to satisfy the conditions set out in Class M. These currently include a condition that the new development must not be within 5 metres of the boundary of the curtilage of the premises.

The proposal, if made law, would enable university estates to extend or construct buildings more easily and quickly than before as no planning application would be required and this would bring more certainty to future estate planning.

Change of use from Class E to residential use within Class C3

Use class E includes buildings in use as shops; for financial and professional services; as restaurants and cafes; for offices, research and development and for some industrial uses; as health clinics, crèches and nurseries; and as gyms and other types of indoor recreation. It will therefore cover many of the uses of university buildings which are not primarily used for education purposes.

The government is proposing to create a new PD right to move from a use or mix of uses within Class E to a residential use within Class C3 without the need to apply for planning permission. There is currently no size limit proposed on the building, or part of the building, to be changed into residential use, although any impacts of the change will be managed under a prior approval process with the local planning authority.

The proposal therefore offers opportunities for universities to repurpose assets to generate additional income. For example, buildings currently used for administration which are not being used due to home working could be changed into staff accommodation. Alternatively, redundant or underused buildings could be converted to residential and sold for profit.

Interestingly the new right is proposed to apply in conservation areas but with prior approval of the impact of the loss of the ground floor use to residential. As many universities have buildings which may be located in conservation areas and have previously been difficult to repurpose, this new proposal may make this process easier.

The new right, if made law, would come into effect from 1 August 2021.

Right to change use class – a reminder of basic principles

The right to change use within a use class only excludes the need for planning permission for what would otherwise be a material change of use, which would normally require an application for planning permission. Planning permission may still be required for operational development associated with that change.

There may be other circumstances which mean that PD rights may not be able to be relied on, for example conditions on a planning permission which restricts changes of use; or restrictive covenants affecting the property. Specialist planning advice is advisable before embarking on changes.

Other proposals

One other proposal in the consultation is for a faster determination period of 10 weeks to be introduced for planning applications submitted for more substantial public infrastructure developments (between 1 to 5 hectares), especially on new sites, which are funded by public money and which fall outside the scope of the proposed PD right changes outlined above.

At the moment, the proposals do not cover university buildings as they are private institutions. However, universities may want to lobby the government to consider extending the proposal to include them now or in the future given that they provide an essential educational service. The consultation closes on 28 January 2021.

Co-written by Gwen Sharp