Permitted development to demolish and replace buildings

As those readers who have been keeping up to date with the plethora of recent amendment orders and regulations will be aware, by 31 August we shall have (in the order in which they will appear on the printed page) the following Classes of permitted development in the recently introduced Part 20 of the Second Schedule to the GPDO - Class ZA, Class A, Class AA, Class AB, Class AC and Class AD. Then there is also the new Class AA in Part 1.

Today, I am going to focus solely on the last of these new PD rights to be introduced. This is Class ZA, which was brought into being by the Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020 SI 2020 No.756, which was made on 20 July and will take effect on 31 August, at 10.00 a.m. precisely.

The development that will be permitted by Class ZA comprises two elements, the first of which encompasses the demolition of one or other of any building comprising a single purpose-built detached block of flats, or, alternatively a single detached building, comprising premises established for office use falling within Class B1(a), for research and development falling within Class B1(b) or for a light industrial process falling within Class B1(c) of the Schedule to the 1987 Order, or any combination of these three B1 uses. [To answer a point that one correspondent raised with me, “demolition” in this case must surely mean complete demolition of the entire building, bearing in mind the definition of “Building” in Article 2, to which I draw attention below.]

The second element of the development permitted comprises the construction of a purpose-built detached block of flats, or a single purpose-built detached dwellinghouse. (In either case, this means built as such and remaining as such.) For the purpose of carrying out this development, Class ZA permits operations reasonably necessary for the demolition and construction (which may include the installation of a basement or cellar in the new building, whether or not there is one in the old building) and works for the removal of plant servicing the old building, for the disconnection of services from the old building, for the removal of any means of access to the old building, for the removal of storage and waste from the old building, for the installation of plant to service the new building, for the installation of services to be connected to the new building, as well as works to enable access to and from the new building (including a fire escape), for the construction within the new building of storage, waste or other ancillary facilities to support the new building and the use of scaffolding and other temporary structures to support these operations (during a period starting with their installation no earlier than one month before the beginning of those operations, and ending with their removal no later than one month after the completion of those operations. [It occurs to me that one would not usually expect this level of detail to be required in a planning permission, so it is slightly puzzling that the draftsman of these provisions felt that it was necessary in this case.]

[It should be noted that this PD right does not confer any right to demolish a single detached dwellinghouse as such; and, although you can build a block of flats containing (in theory) an unlimited number of flats, you can in the alternative build only one detached dwellinghouse, even though there might potentially be room on the cleared site for several houses.]

The following definitions specifically applying to Class ZA should be borne in mind. First, this PD right applies only to a whole building and not to part only of a building (and the definition of a “building” in Article 2 has been changed to this effect so far as it applies to Class ZA). “Development” includes any change of use from the use of the old building to the use of the new building within Class C3 in the form in which this Use Class existed on 12 March 2020. [This is another provision which really ought not to have been necessary, as what is authorised is operational development, and so the use of the new building would in any event be governed by section 75 of the 1990 Act.] The “old building” and “new building” respectively mean the building proposed for demolition and the building proposed as replacement [another statement of the absolutely bl***ing obvious which was surely unnecessary], and “services” means water, drainage, electricity, gas, and other services to the extent reasonably necessary for the new building to function as a block of flats or as a single detached dwellinghouse. [Well, who’d have thought that’s what it meant?]

Some of the aspects of development not permitted by Class ZA represent in effect qualifying criteria which, if they are not met, take the development outside the scope of the GPDO. The old building must have been constructed before 1990, and it must still have been in existence on 12 March 2020. [“Built” is not defined, but I think we may take it that the old building must have been substantially completed (as per Sage) no later than 31 December 1989.] The footprint of the old building (i.e. the total area of ground covered by it) must not exceed 1,000 square metres, and the height of the highest part of the roof of the old building above ground level (not including plant, radio masts and antennae) must not be greater than 18 metres at any point.

[I am not sure what purpose is served by the requirement that the old building must still have been in existence on 12 March 2020. The PD rights under Class ZA must surely depend on the continued existence of the old building until prior approval has been granted. If the old building has already been demolished at a date after 12 March, is it implied that the right to erect a new building within the limits set in Class ZA can still be permitted development? I find it hard to believe that this is really what was intended. ]

One particularly important criterion is that the old building must have been vacant for a period of at least 6 months immediately prior to the date of the application for prior approval. However, if the old building has been rendered unsafe or otherwise uninhabitable by the action or inaction of any person having an interest in the land on which the old building stands, and if it would be practicable to secure safety or health by works of repair or works for affording temporary support, then this too is a disqualification. But keeping the old building vacant does not of itself count as action or inaction.

[The position regarding agricultural tenants is protected (see below), but there does not seem to be any other means of preventing the process of ‘winkling’ by unscrupulous landlords.

A correspondent has correctly raised with me how the LPA is to know, or be able to confirm that the building to be demolished has been vacant for at least six months, when there is no requirement for the applicant to supply any evidence to support this assertion (or assumption). How is the LPA to ascertain when it was vacated? I suppose rating records might be an indication. The same point could potentially arise with regard to the date of construction of the existing building. I think it would perhaps be slightly easier to ascertain whether the building had been completed no later than 31 December 1989. Building Control records should enable this to be confirmed.]

The footprint of the new building (defined as mentioned above) must fall wholly within the footprint of the old building. Development is disqualified if any part of the footprint of the new building falls outside those limits. Furthermore, no part of any exterior wall of the new building must be nearer the highway than any exterior wall of the old building.

The new building must not have more than two storeys more than the old building. Where the new building has additional storeys compared with the previous building the floor to ceiling height of any additional storey in the new building, measured internally, must not at any point be greater than whichever is the lower of the floor to ceiling height, measured internally, of any storey in the old building, or 3 metres.

There is also an overall limit on the height of the new building; it must not exceed whichever is the lower of 7 metres above the height (not including plant) of old building, or 18 metres in total, although plant, radio masts and antennae on the new building can be left out of account for this purpose. The height of any plant on the roof of the new building as measured from the lowest surface of that roof must not be greater than the height of any existing plant as measured from the lowest surface of the existing roof on the principal part of the old building.

There are, of course, various other prohibitions (as you would expect if you are already familiar with similar PD rights elsewhere in the GPDO). Development is not permitted by Class ZA if land covered by, or within the curtilage of, the old building is occupied in any part under an agricultural tenancy (unless the express consent of both the landlord and the tenant has been obtained). It is not permitted if it is or forms part of a Conservation Area, an AONB, the Broads, a National Park or a World Heritage Site [Article 2(3) land, which also includes land specified for the purposes of section 41(3) of the Wildlife and Countryside Act 1981 – no, me neither].

Bearing in mind the disqualification of a building situated within a Conservation Area, it is not clear why the draftsman should also have thought it necessary to prohibit the demolition of an unlisted building in a conservation area (“relevant demolition” for the purposes of section 196D of the Listed Buildings Act).

Development under Class ZA is also prohibited if the site is or forms part of a Site of Special Scientific Interest, of a listed building or land within its curtilage, of a scheduled monument or land within its curtilage or if it is or forms part of a safety hazard area or military explosives storage area, or is within 3 kilometres of the perimeter of an aerodrome.

All this is, of course, subject to a condition requiring a prior approval application to be made before any of this development commences. The matters requiring prior approval in this case are:

(a) transport and highways impacts of the development;
(b) contamination risks in relation to the new building;
(c) flooding risks in relation to the new building;
(d) the design of the new building;
(e) the external appearance of the new building;
(f) the provision of adequate natural light in all habitable rooms of each new dwelling in or comprising the new building;
(g) the impact of the development on the amenity of the new building and of neighbouring premises, including overlooking, privacy and light;
(h) impacts of noise from any commercial premises on the intended occupiers of the new dwellings;
(i) the impact on business and new residents of the development’s introduction of, or increase in, residential use in the area in which the development is to take place;
(j) the impact of the development on heritage and archaeology (which obliges the LPA, so far as they consider reasonably practicable, to consult any bodies that they consider to have heritage and archaeological expertise relevant to their functions under Part 3 of the Act and the GPDO);
(k) the method of demolition of the old building;
(l) the plans for landscaping of the development, including the planting and maintenance of shrubs and trees; and
(m) any air traffic and defence asset impacts of the development, and any impact that, because of the siting of the new building, the development will have on a protected vista identified in the Directions Relating to Protected Vistas dated 15 March 2012 by the Secretary of State, unless no part of the new building (including plant, radio masts and antennae) occupies airspace not occupied by the old building (including plant, radio masts and antennae).

[The matters requiring prior approval still do not specifically include the adequacy of the residential accommodation in terms of the floor area of each dwelling, room sizes, etc. but ”the impact of the development on the amenity of the new building and of neighbouring premises, including overlooking, privacy and light” does for the first time introduce some additional elements of residential amenity into the equation, although only practical experience of the operation of these provisions will show to what extent this might be stretched to embrace such considerations as the adequacy of the new residential accommodation (in terms of size, servicing arrangements and any outside space, etc.).]

The term “commercial premises” (in sub-paragraph (h)) means any premises in the surrounding area which are normally used for the purpose of any commercial or industrial undertaking which existed on the date of the prior approval application under, and includes premises licensed under the Licensing Act 2003 or any other place of public entertainment. I won’t repeat other definitions of terms that were explained in my last blog post, such as “air traffic and defence assets”.

Some additional requirements have been added to Part 20 regarding the information to be provided with a prior approval application under Class ZA. (In a Class ZA application, this list replaces the list of requirements that apply to other developments under Part 20.) The complete list of items required under Class ZA comprises:

(a) a written description of the proposed development, which must include details of the building proposed for demolition, the building proposed as replacement and all of the operations listed above (for both the demolition and the new build, all services, plant, etc.);
(b) a plan, drawn to an identified scale and showing the direction of North, indicating the site of the proposed development;
(c) drawings prepared to an identified scale and showing external dimensions and elevations of the building proposed for demolition and of the building scheduled as replacement, showing the direction of North and the positioning of each, together with the applicable information mentioned below**;
(d) a written statement specifying the number of dwellings in the building proposed for demolition, and the number of new dwellings proposed in the building proposed as replacement;
(e) where there is a requirement for the Environment Agency to be consulted (in Flood Zones 2 or 3, or in an area within Flood Zone 1 which has critical drainage problems and which has been notified to the local planning authority by the Environment Agency), a site-specific flood risk assessment;
(f) a written statement in respect of heritage and archaeological considerations of the development;
(g) the developer’s contact address; and
(h) the developer’s email address if the developer is content to receive communications electronically;

This information must of course be accompanied by any fee required to be paid. (To avoid unnecessary repetition, I would remind you of the much increased fees that will be payable in respect of applications under Class 20, which I explained in this blog on Wednesday, 15 July, when I drew attention to draft amendment regulations to the Fees Regs. So far as I am aware, these still remain only in draft at the time of writing , and it is uncertain whether the new scale of charges will have come into force by 1 September.)

**The information referred to in sub-paragraph (c) above, which must so far as practicable show the direction of North and also elevations is —
(a) where the building proposed as replacement is a block of flats, the position and dimensions of windows, doors and walls in the block and in each flat in the new block, and the dimensions and use of all habitable and other rooms in each flat;
(b) where the building proposed as replacement is a single house, the position and dimensions of the windows, doors and walls in it, and the dimensions and use of all habitable and other rooms in it.

The following further conditions also apply to the development:

When the developer makes the prior approval application, the procedure for dealing with such applications under Part 20 (as set out in paragraph B of that Part) applies to the application.

Before beginning the development, the developer must provide the LPA with a report for the management of the construction of the development, which is acceptable to the authority and sets out the method of demolition, the proposed development hours of operation and how any adverse impact of noise, dust and vibration and traffic on occupiers of the new building and adjoining owners or occupiers will be mitigated, the proposed use of materials, and the plans for the disposal and recycling of waste generated by the development and that in carrying out the development the developer must comply with the report.

The development must be completed within a period of 3 years starting with the date prior approval is granted, and 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 [which can include an email] and must include—
(a) the name of the developer;
(b) the address or location of the development; and
(c) the date of completion.

[In accordance with Article 7, the prior approval application should be determined by the LPA within 8 weeks. However, there is no right to proceed with the development in default of a determination within that period. So what has become known as “the 56-day rule” has no application here. The only remedy for non-determination within a reasonable time is an appeal under section 78(2)(a) of the 1990 Act.]

Any new dwelling created under Class ZA is to remain in use as a dwellinghouse within Use Class C3 and for no other purpose, except to the extent that the other purpose is ancillary to the primary use as a dwellinghouse.

[I am aware that there are multiple issues that this new PD right throws up, some of which have been raised by correspondents in response to other recent blog posts. There is, for example, no reference anywhere in Class ZA to ‘curtilage’. So, if a curtilage is to be provided this would require a separate planning permission.

There is no distinction between development in urban areas and development in rural areas. As one correspondent has pointed out, this could raise a number of issues, including scale and rural impact, which the prior approval application process does not adequately address. However, the restriction of the types of building that can be demolished to buildings in use under Class B1 or purpose-built blocks of flats does perhaps limit the scope for this type of development in the open countryside.

Like quite a few other planning professionals, I am sceptical as to the contribution that permitted development under the various Classes in Part 20 will make to the overall housing requirement. If you add together all the developments that might come forward, I doubt whether they would amount to even 1% of the annual requirement, whilst the other 99% will still have to be found through more orthodox forms of development.]

© MARTIN H GOODALL