New permitted development rights: 'up' not 'out'

The permitted development (PD) rights fall into two categories: new rights on existing, purpose-built detached blocks of flats; and new rights on individual homes.

Existing, purpose-built detached blocks of flats

This PD right comes into effect on 1 August 2020. The right allows construction of up to two additional storeys, subject to prior approval and certain exclusions. These must be residential and immediately above the existing top floor. Certain limitations apply. For example, the overall height of the roof of the extended building must not be more than seven metres higher than the highest part of the existing roof, and that the extended building must not be greater than 30 metres in height.

The developer must apply to the local planning authority for prior approval in respect of traffic and highways impacts, air traffic and defence asset impacts, contamination risks, flood risk, the external appearance of the building, the provision of adequate natural light in all habitable rooms of the new dwellings, impact on amenity of the existing building and neighbouring premises including overlooking, privacy and loss of light, and the impact on any protected views.

The key constraint here is that the new rights will only apply to a building which is a purpose-built, detached block of flats. Mixed-use buildings, which usually have the ground floor as an 'activating' non-residential use, will not benefit from these new rights. However, traditional metropolitan housing estates that are comprised of mansion-style blocks of flats will benefit. This could provide councils and registered providers with additional affordable housing quicker than using the traditional planning application route.

There is some layering of regulation in the prior approval process. It is particularly interesting to note that the secretary of state has cited adverse impacts on daylight and sunlight as a reason for refusal in the recent appeals involving Love Lane in Woolwich (157-page / 1.17MB PDF) and Anchor and Hope Lane in Charlton (206-page / 1.61MB PDF).

Planning expert Jamie Lockerbie of Pinsent Masons, the law firm behind Out-Law, said: "Ultimately if the green belt is to remain sacrosanct and we can't build out, then by necessity we must build up. If these new rights help to achieve that then they will be welcomed by most."

Individual homes

These new rights w ere announced by the prime minister in his speech on 30 June 2020.  Property owners will be able to build additional space above their homes via a fast track approval process, subject to neighbour consultation. We await the detail, but it is expected that this will involve the relaxation of current restrictions.

Lockerbie said: "The phrase 'subject to neighbour consultation' is noteworthy in its nebulousness. Will this mean that neighbours are merely informed and given the opportunity to make representation to the LPA?"

For any weight to be attached to such a consultation, local authorities will need to be able to determine the application in the ordinary way, over-riding the permitted development right in those circumstances.

Planning expert Nicholle Kingsley of Pinsent Masons said: "As is always the case, the devil is in the detail. These changes are expected to take effect by September 2020 so we do not have long to wait. While the changes to permitted development rights are welcomes, given the extent of 'radical overhaul' of the planning system expected by government, the key question is whether the extent of such changes help the country 'Build, Build, Build', or whether they have the opposite effect while the industry waits to see how those changes will be applied in practice?"