Upward extension of certain blocks of flats

The one change to the GPDO that got all the journos excited was the long-anticipated introduction of a permitted development right to extend certain blocks of flats by the addition of up to two extra floors. With effect from 1 August 2020, this will be enshrined in the new Part 20 of the Second Schedule to the GPDO. [Some indication of future intentions can be gleaned from the fact that the overall title of Part 20 is “Construction of New Dwellinghouses”, and that the addition of “new dwellinghouses on detached blocks of flats” comprises Class A in this Part of the Second Schedule. One may reasonably surmise that another Class, which may be added to Part 20 later this year, will comprise the demolition of existing buildings and the construction of new dwellings on the site, although the precise mechanism governing this has yet to be revealed, and may still be the subject of some debate within MHCLG.]

The development permitted by Class A of Part 20 consists of works for the construction of up to two additional storeys of “new dwellinghouses” (i.e. flats) immediately above the existing topmost residential storey on a building which is a purpose-built, detached block of flats, together with any or all engineering operations reasonably necessary to construct the additional storeys and new flats, as well as works for the replacement of existing plant or installation of additional plant on the roof of the extended building reasonably necessary to service the new flats, works for the construction of appropriate and safe access and egress to the new and existing flats, including means of escape from fire, via additional external doors or external staircases, and works for the construction of storage, waste or other ancillary facilities reasonably necessary to support the new flats.

“Block of flats” means a building which is divided horizontally and consists of separate and self-contained premises constructed for use for the purposes of a dwelling, and any ancillary facilities constructed solely for use by occupiers of the building; and “purpose-built” means a building that was built as and remains as a block of flats. “Detached” means that the building does not share a party wall with a neighbouring building; and “flat” means separate and self-contained premises constructed for use for the purposes of a dwelling.

These definitions in paragraph C of Part 20 represent significant constraints on the types of building that can be extended under Class A. So, for example, if the existing flats were created by converting an existing house, this building cannot be extended under Class A (because the building was not purpose-built as a block of flats). Similarly, the building must be free-standing, so if it is attached in any way to any other building, it cannot be extended under Class A. The definition of a “flat” also excludes any dwelling that was created by a change of use from any other use; it must have been constructed for residential use in the first place.

In addition to the restricted scope of permitted development under Class A, as a result of the definitions set out in paragraph C, Paragraph A.1 of Class A prohibits development under this PD right in in a variety of specified ways. First, development is not permitted by Class A if the permission to use any building as a dwelling or dwellings was granted only by virtue of Class M, N, O, P, PA or Q of Part 3 (i.e. residential conversion of various buildings under Part 3). [It seems somewhat unlikely that a detached block of flats will have been created as PD under Classes M, N, P, PA or Q, but it is entirely possible that a detached block of flats may have been created under Class O, and further extension of such a building under Part 20 is therefore precluded. Strictly speaking, this prohibition in paragraph A.1 is unnecessary, because any building containing flats created by the conversion of an existing building falls outside the definition of a ‘purpose-built flat’ in paragraph C.]

Paragraph A.1 also prohibits development under Class A if the building is less than 3 storeys in height above ground level. [I think we may take it that this means actual ground level, not the storey comprising the ground floor of the building; so any building that is less than three storeys high (not four) is excluded.]. Development is also excluded if the building was constructed before 1st July 1948, or after 5th March 2018. Furthermore, development is not permitted by Class A if the additional storeys are constructed other than on the principal part of the building. (“Principal part” means the main part of the building excluding any front, side or rear extension of a lower height, whether this forms part of the original building or a subsequent addition.)

Development under Class A is also prohibited if the floor to ceiling height of any additional storey, measured internally, is more than the floor to ceiling height of any of the existing storeys, or more than 3 metres in height (whichever is the lesser). It is also prohibited if the new dwellings are not flats, i.e. if they extend over more than one storey.

There is also an overall height limit. The overall height of the roof of the extended building must not be greater than 7 metres higher than the highest part of the existing roof (not including existing plant); and the building as a whole, as extended (but not including plant), must not be greater than 30 metres in height. There are also limitations with regard to support structures. The engineering operations required to construct the additional storeys, and the new flats, must not include the provision of visible support structures on or attached to the exterior of the building upon completion of the development. Such engineering operations are in any event restricted to works within the existing curtilage of the building to strengthen existing walls, to strengthen existing foundations, or to install or replace water, drainage, electricity, gas or other services. Engineering operations falling outside these parameters are prohibited.

Works for the replacement of existing plant or installation of additional plant on the roof of the extended building reasonably necessary to service the new flats are not permitted if there is no existing plant on the building. In the case of new or replacement plant, the height of such new or additional plant as measured from the lowest surface of the new roof on the principal part of the new building must not exceed the height of any existing plant as measured from the lowest surface of the existing roof on the principal part of the existing building.

Any works for the construction of access to the new and existing flats, including fire escapes, via additional external doors or external staircases, must not extend beyond the curtilage of the existing building. [‘Curtilage’ for this purpose is not defined, and so the generally accepted definition of the word should be applied – see Sinclair Lockhart’s Trustees, Dyer v Dorset CC, Skerritts of Nottingham, etc.] Any works for the construction of storage, waste or other ancillary facilities for the new flats must not extend beyond the curtilage of the existing building, nor must any part of them be situated on land forward of a wall forming the principal elevation of the existing building, or be situated on land forward of a wall fronting a highway and forming a side elevation of the existing building.

Development under Class A is also prohibited if the land or site on which the building is located, is or forms part of, “Article 2(3) land” (i.e. a Conservation Area, an Area of Outstanding Natural Beauty, the Broads, a National Park or a World Heritage Site). [The exclusions in Article 2(3) also apply to any area specified by the Secretary of State for the purposes of section 41(3) of the Wildlife and Countryside Act 1981 (as amended by sections 20 and 24 of, and Schedules 3 and 4 to, the Agriculture Act 1986, Schedule 3 to the Norfolk and Suffolk Broads Act 1988, Schedule 10 to the Environment Act 1995 and Schedules 11 and 12 to the Natural Environment and Rural Communities Act 2006), relating to enhancement and protection of the natural beauty and amenity of the countryside. However, I am not aware of any such areas ever having been so specified.]

The prohibition of development also extends to a Site of Special Scientific Interest, a listed building or land within its curtilage, a scheduled monument or land within its curtilage, a safety hazard area, a military explosives storage area; or land within 3 kilometres of the perimeter of an aerodrome. The definitions of “safety hazard area” and “military explosives storage area” are explained in the Third Edition of my book, A Practical Guide to Permitted Changes of Use.

I think readers will agree that the combined effect of the definitions in paragraph C and the prohibitions in paragraph A.1 significantly cut down on the number of buildings that can in practice be extended under Class A of Part 20.

In addition to the restrictions discussed above, this PD right is hedged around with various conditions, the most important of which is a requirement to make a prior approval application before beginning the development (and, of course, await its determination). The matters that may require the LPA’s prior approval are:

(a) transport and highways impacts of the development;
(b) air traffic and defence asset impacts of the development;
(c) contamination risks in relation to the building;
(d) flooding risks in relation to the building;
(e) the external appearance of the building;
(f) the provision of adequate natural light in all habitable rooms of the new flats
(g) impact on the amenity of the existing building and neighbouring premises including overlooking, privacy and the loss of light; and
(h) whether because of the siting of the building, the development will impact on a protected view identified in the Directions Relating to Protected Vistas dated 15 March 2012 issued by the Secretary of State. [This is a reference to the following online document: https://www.london.gov.uk/what-we-do/planning/implementing-london-plan/planning-guidance-and-practice-notes/londonview-Management]

A “defence asset” is a site identified on a safeguarding map provided to the LPA for the purposes of a direction made by the Secretary of State in exercise of the powers conferred by article 31(1) of the Procedure Order or any previous powers to the like effect. [This refers to Joint Circular 01/2003 issued on 27th January 2003 by the Office of the Deputy Prime Minister.]

“Technical sites” has the same meaning as in Annexe 1 of the Town and Country Planning (Safeguarded Aerodromes, Technical Sites and Military Explosives Storage Areas) Direction 2002. [This too can be found in Circular 01/2003.]

The definition of “habitable rooms” is set out in paragraph C, and is the same as the definition that has been added to Part 3. (See my recent post, dealing with those changes, where I pointed out that a kitchen does not have to have adequate natural light, whereas a kitchen/diner does, with a resulting risk of disputes as to the correct identification of such a room, if it has no or limited natural light.)

Note that, in contrast to other PD rights relating to residential development under the GPDO, overlooking, privacy and the loss of light are all issues to be considered in the case of this Class of permitted development. The provision of adequate natural light in all habitable rooms of the new flats is an issue that must also be considered, but other aspects of residential amenity are not subject to prior approval. So, for example, the LPA is not entitled to consider the adequacy of the accommodation in spatial terms.

In order to ensure that the prior approval application is validly made, it is essential that the applicant complies strictly with all of the requirements set out in paragraph B of Part 20. The application must be accompanied by—

(a) a written description of the proposed development, which, in relation to development proposed under Class A, must include details of any flat and other works proposed under paragraphs A(a) to (d) (i.e. engineering operations for the construction of the additional storeys and new flats, works for the replacement of existing plant or installation of additional plant on the roof, works for access, fire escape, etc. and works for the construction of storage, waste or other ancillary facilities)
(b) a plan drawn to an identified scale and shows the direction of North indicating the site and showing the proposed development;
(c) floor plans drawn to an identified scale and show the direction of North indicating the dimensions and proposed use of each room, the position and dimensions of windows, doors and walls, and the existing and proposed elevations of the building;
(d) a written statement specifying the number of new flats proposed by the development that is additional to the number of flats in the building immediately prior to development;
(e) a list of all addresses of the flats within the existing block of flats;
(f) the developer’s contact address;
(g) the developer’s email address if the developer is content to receive communications electronically; and
(h) where there is a requirement [see below] the Environment Agency to be consulted, a site-specific flood risk assessment,

together with any fee required to be paid [see below].

For the first time, there is a requirement for the submitted plans to be drawn to an identified scale and show the direction of North. (N.B. This requirement still does not apply to applications under Part 3.) Despite the requirement to provide plans indicating the dimensions and proposed use of each room, and the position and dimensions of windows, doors and walls, the only issue the LPA can consider is the adequacy of natural light in those rooms that are defined as habitable rooms; they cannot refuse the application in relation to any other aspect of residential amenity such as the adequacy of the accommodation in spatial terms.

As regards the payment of an application fee, Regulation 14 of the 2012 Fees Regs will be amended to provide that the application fee payable on a prior approval application for new flats created under Part 20 of the Second Schedule to the GPDO will be £334 for each flat, where less than 50 are to be created in accordance with the prior approval for which application is being made. Where the number of new flats proposed in this prior approval application is more than 50, the fee will be £16,525, plus £100 for each new flat in excess of 50, subject to a maximum fee of £300,000.

However, the new fees will not be in place when Part 20 comes into effect on 1 August. The change is intended to be made by the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2020. For the time being, these are draft regulations, which are subject to approval by a resolution in both the Commons and the Lords before they are made. They will come into force on the 28th day after they are made. It seems, therefore, that if canny developers can get their act together quickly, they may be able to bang in a prior approval application under Part 20 in the first half of August absolutely free, gratis and for nothing. This is confirmed by Regulation 3 of the draft fee regs amendment, so that no fee is payable in respect of a prior approval application under Regulation 14(1)(c) (i.e. an application under Part 20) if the application is made before the date on which the amended fee regulations come into force.

It is the much higher application fees that will apply to prior approval applications for developments under Part 20 that has prompted a proposed change to the Fees Regs to allow a ‘free go’ on a second prior approval application under Part 20. Regulation 2(3) will introduce for the first time a ‘free go’ for a second prior approval application for permitted development under Part 20, thus bringing the fees regs for this type of prior approval application into line with those that apply to planning applications. This ‘free go’ for a second prior approval application, however, will apply only to applications under Part 20. There continues to be no ‘free go’ for second applications under other Parts of the Second Schedule to the GPDO.

Before looking at other conditions attached to PD under Part 20, I’ll deal briefly with the procedural requirements for the consideration and determination of prior approval applications under Part 20. Unsurprisingly, these are substantially similar to the rules applying to applications under Part 3. Rather than repeating these in detail, I would simply refer readers to Chapter 14 of the Third Edition of A Practical Guide to Permitted Changes of Use. In addition to those rules, where the application relates to prior approval as to the impact on air traffic or defence assets, the LPA must consult in addition any relevant operators of aerodromes, technical sites or defence assets and where appropriate the Civil Aviation Authority and the Secretary of State for Defence. Where an aerodrome, technical site or defence asset is identified on a safeguarding map provided to the LPA, the authority must not grant prior approval contrary to the advice of the operator of the aerodrome, technical site or defence asset, the Civil Aviation Authority or the Secretary of State for Defence.

As in the case of Part 3, where the application relates to prior approval as to natural light, the LPA must refuse prior approval if adequate natural light is not provided in all the habitable rooms of the flats. Where the application relates to prior approval as to the impact on protected views, the LPA must consult Historic England, the Mayor of London and any local planning authorities identified in the Directions Relating to Protected Vistas dated 15th March 2012 (referred to above).

In addition to posting a notice of the proposed development near the site, the LPA must also serve a notice on all owners and occupiers of the flats within the existing block of flats, and also on any adjoining owner or occupier. When determining the application, the LPA must take into account any representations made to them as a result of this consultation process (although the LPA can only take note of those representations that are addressed to the matters requiring prior approval, and must exclude from their consideration any representations that are addressed to other issues.)

When I originally published this post this afternoon, I wrote that there is no time limit for the determination of a prior approval application under Part 20. I had overlooked Article 7, which provides that where no period is specified as to the period within which a prior approval must be determined, it must be determined within a period of 8 weeks following the receipt of the application by the LPA. However, as I correctly stated, the “56-day rule” does NOT apply. The applicant is NOT entitled to proceed with their development in default of the determination of the prior approval application within the 8-week period. The development must not, therefore, begin before the receipt by the applicant from the LPA of a written notice giving their prior approval. The only remedy open to the developer in the event of non-determination within the 8-week period (or such longer period as may be agreed in writing by both parties) is an appeal under section 78 against such non-determination.

Any development under Class A is permitted subject to the condition that before beginning the development, the developer must provide the LPA with a report for the management of the construction of the development, setting out the proposed development hours of operation and how any adverse impact of noise, dust, vibration and traffic on occupiers of the building and adjoining owners or occupiers will be mitigated.

The development must be carried out in accordance with the details approved by the LPA and must be completed within a period of 3 years starting with the date on which prior approval is granted. Bearing in mind that the development permitted by Class 20 is built development (not a change of use), ‘completed’ means physically completed in this case; actual residential occupation is not required within the 3-year time limit. The test, I suggest, should be the same as the House of Lords proposed in Sage, even though that case itself was concerned with the interpretation of the term “substantially completed” in section 171B(1) for the purposes of the time limit for enforcement. The developer must notify the LPA of the completion of the development as soon as reasonably practicable after completion. This notification must be in writing and must include—

(a) the name of the developer;
(b) the address or location of the development; and
(c) the date of completion.

Any new flat created under Class A must remain in use as a dwellinghouse within the meaning of Class C3 and for no other purpose, except to the extent that the other purpose is ancillary to the primary use as a dwellinghouse.

There is, of course, power for the LPA to impose conditions on their prior approval. However, this does not give the LPA carte blanche to impose any conditions they please; the conditions must be reasonably related to the subject matter of the prior approval. The approval does not relate to the entirety of the proposed development, but only to those matters which are specified for approval under Class A of Part 20. It does not allow the imposition of more wide-ranging conditions of the kind that are frequently imposed on planning permissions.

In particular, it is not within the power of an LPA to impose conditions on a prior approval under Class A of Part 20 which seek the provision of, or any contribution to, affordable housing or any other form of financial contribution. Equally, an LPA cannot impose any conditions as to the provision of public open space, play areas and the like. It is not open to an LPA to impose a condition as to the time within which development must be commenced or completed, because this is already governed by paragraph A.2(2).

There is one final point that should be borne in mind, both by developers and by the residents of existing flats in any block that is affected by proposed development under Part 20. This relates to the law of landlord and tenant (and so is not a planning issue as such, and will not therefore be of concern to the LPA when considering and determining a prior approval application under Part 20). It may nevertheless be an important issue as between flat owners or occupiers and their landlord. Flat owners should take expert legal advice from an experienced property lawyer as to their legal position in relation to any such proposal. It will entirely depend on the terms of their lease as to whether they have any right to prevent the development, and so it is not a matter on which I can usefully comment in this blog, other than to flag it up as a matter of legitimate concern that may need to be addressed.

As to whether there will be a significant number of developments under Class A of Part 20, it very much depends on the practical effect of all the prohibitions, restrictions and conditions that govern these developments. As I have suggested above, they may prove to be a stumbling block in quite a few cases, and may reduce (perhaps to a substantial extent) the number of such developments that will in practice be carried out.

© MARTIN H GOODALL