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Legal landscape: The upward extension permitted development right - genuine prospect or lost opportunity?

Construction / iStock-115939402
A new permitted development right that allows upwards extensions on existing homes has caused no little controversy and ddebate. But what does the new law actually permit? Meeta Kaur runs the rule over the new regulation

In October 2018 the government issued Planning Reform: Supporting the High Street and increasing the delivery of new homes  which proposed a new permitted development right (PDR) to extend into the airspace above existing buildings for additional homes.

Fast forward to 2020 and the Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020 were made, introducing a new PDR for these upward extensions, coming into force on 1 August.

The right

A new Part 20 class A permits development consisting of works for construction of up to two additional storeys of flats on top of purpose-built detached blocks of flats, together with certain associated works. The PDR will not be available where the existing building was not originally built and remains as a block of flats.

The limitations

The existing building must have been constructed between 1st July 1948 and 5th March 2018. There are various other limitations, including limitations on floor to ceiling heights of additional stories, the height of the roof of the extended building, the overall height of the extended building and the height of the existing building, which cannot be more than three stories above ground.

The right is not available within conservation areas, for listed buildings or scheduled monuments, or on land within three kilometres of the perimeter of an aerodrome.

The conditions

Prior approval must be applied for (and obtained) before any development can commence. The prior approval matters are transport and highways impacts, air traffic and defence asset impacts, contamination and flooding risks, external appearance, provision of adequate natural light, impact on amenity of the existing and neighbouring buildings and on protected views.

The development must be completed within three years of the prior approval date and a construction management report must be submitted.

The process

There is a bespoke application process. The local planning authority can refuse an application if conditions or limitations are not clearly complied with. The authority must refuse if adequate natural light is not provided and it has relatively broad scope to request further information to help it determine an application.

Applications must be determined within eight weeks but there is no deemed approval if that timescale is not met, simply a right of appeal for non-determination.

CIL (community infrastructure levy) will be payable and local planning authorities can require planning obligations, but these should be limited to matters requiring prior approval.

How useful will it be?

The many limitations and conditions must mean that the permitted development right’s application will be limited. But no doubt it will be attractive to some, where it may provide a better alternative to complete demolition.

Critics have pointed out that the prior approval process closely resembles that for a full planning application. The list of prior approval matters includes matters that require subjective judgements and this, coupled with the broad scope given for requesting further information, do not necessarily lend themselves to a process that is straightforward or streamlined.

The requirement to complete the development within three years is the same as that found on other PDRs. The meaning of ‘completed’ is not settled and periodically leads to disputes between local planning authorities and applicants, so the same risk arises. The limitation to buildings ‘constructed’ before 5 March 2018 introduces an added twist, as presumably this has a different meaning to ‘completed’ and requires something less. There is also some doubt as to whether the PDR only applies to buildings that are purely residential.

What next?

The government has made clear it intends to motor on with introducing similar PDRs to other buildings, including individual homes, so it is safe to assume that we will only see more of the same.

Indeed, on 21 July, Robert Jenrick, the housing secretary, announced a new permitted development right to demolish and rebuild unused buildings as homes, with an emphasis on vacant high street and other commercial properties.

Meeta Kaur is a founding partner of Town Legal LLP

Photo credit l iStock


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