Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020

Lord German Excerpts

Thursday 10th September 2020 Lords Chamber

Moved by

[Lord German]

That this House takes note of the Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020 (SI 2020/632).

Special attention drawn to the instrument by the Secondary Legislation Scrutiny Committee, 21st Report.

[Lord German (LD)]

My Lords, I move this Motion because these regulations contain important policy matters that make significant changes in planning law, as outlined in the report from the Secondary Legislation Scrutiny Committee, of which I am a member. These would otherwise not be discussed by this House. Admittedly, we had a debate under the affirmative procedure on the fees regime for these planning law changes, but as Members who participated will know, it was the substance of these regulations that was the principal concern of the House. Before addressing the policy changes themselves, I shall spend a few moments examining the parliamentary process which has led to this debate.

First, these regulations are being brought in under the “Coronavirus” heading: two completely separate matters are addressed by these regulations and only one is related to the coronavirus pandemic. The part of the legislation covering the building of additional storeys is both permanent and totally unrelated to the present pandemic, so it is quite legitimate to ask the Minister to explain why this planning law change is misrepresented as a response to the coronavirus health issue. Secondly, as our previous debate on the fees issue demonstrated, significant policy changes are being proposed through the weakest form of parliamentary scrutiny that exists. This is a perfect example of a major policy change being side-slipped through Parliament, first, under the cover of a response to the coronavirus crisis and, secondly, by the use of the negative procedure.

There are further changes coming down the line in the form of a suite of negative procedure regulations that also make big policy changes to planning law. I find this all the more surprising when the Government are proposing new primary legislation on planning law, which would be the ideal and wholly appropriate vehicle for consideration of these changes and would have had the value of full parliamentary scrutiny, undoubtedly leading to better legislation. As it is, the Government are giving the public a set of hand-me-downs one piece at a time, with no possibility of developing a cohesive policy. Why are the Government doing it this way? I look forward to a full explanation from the Minister.

I turn to the policy intent itself. The permanent change to planning law allows up to two additional storeys to be constructed on existing, purpose-built blocks of flats of three storeys or more built between 1 July 1948 and 5 March 2018, up to a total height of 30 metres. When the Government consulted on these proposals, the majority of responses were opposed. The opposition fell into a number of areas but, broadly, they were the lack of local accountability, the quality of the homes in the new storeys, access issues and the impact on residents and neighbours. Of course, upward development should be possible, but only with the essential proper protections for the existing community. These regulations introduce a new and permanent permitted development right that removes much of the protection for those communities.

The process of consultation proposed is a shadow of what currently exists. The expedited approval process may be suitable for considering home extensions, but the building upwards of new floors on domestic buildings are major schemes with large community impact. While prior approval notice is to be served on owners and tenants, within a very tight timetable, all comments received are to be considered only if they relate to the dual issues of amenity and external appearance. For example, will the council be able to consider the means of egress from the building? Is the lift core of sufficient size for the increased number of residents? What about negative effects on the service charges levied on owners? Then, of course, there is the quality of build issue—the materials to be used and the match to the existing homes. It seems to me that the number of new homes delivered by this mechanism will not be great, and certainly not the 800 a year anticipated by the legislation.

A three-storey property extended up to five would require a lift. If one is not present in the existing building, it would mean the construction of one external to the building. An existing lift in a building with five floors may not be a suitable lift for seven floors. Consider the protection provided for existing residents in these blocks. The developer will be required to produce a report on how they intend to minimise disruption; a report not subject to any checks will be produced by the developer. Anyone who knows this business will know that significant disruption is inevitable. The roof covering will need to be removed and the remaining roof area made temporarily waterproof before any construction can take place. It is difficult to see how this can be done without erecting scaffolding around the whole building for a considerable period, during which existing residents will suffer a major loss of amenity as a result.

Residents will turn to their council and their councillors to express their concerns, and they will find them powerless. Our planning system is constructed on a system of checks and balances, on local people and their councils providing the fair play our communities need. I would be very surprised if developers using this legislation did not meet substantial local opposition, meaning much more work for the local authority but without the power to provide any solutions. The light-touch planning requirements in these regulations offer very little succour to residents and neighbours, who will now find their ability to voice their interests and concerns severely limited.

These proposals indicate a Government making a dramatic shift away from strong and caring communities, with local councils as their facilitators, towards the aspirations of developers and a distant Government. It is through local councils’ transparent process of planning and regulations that the public can make their concerns heard. It is only through this process that elected councillors can make recommendations and insert conditions that ensure the protection of those affected and pay respect to the principle of community cohesion.

The Minister, in responding to the previous debate, called these regulations “gentle densification”. Well, the Government have got it wrong—they are anything but gentle. With the opportunity of the new planning regulations and the new planning law which the Government are providing, it would be wholly appropriate for the Government to take these regulations away, give them a comprehensive rethink and bring suggestions for any changes back in the primary legislation, where they could be properly debated.

--- Later in debate ---

[The Minister of State, Home Office and Ministry of Housing, Communities and Local Government (Lord Greenhalgh) (Con)]

My Lords, we have had an interesting, in-depth and wide-ranging debate on the Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020. I thank noble Lords on all sides of the House for their contributions. I particularly thank the noble Lord, Lord German, and the noble Baroness, Lady Wilcox, for tabling the Motions and the Secondary Legislation Scrutiny Committee for its report drawing the regulations to the House’s attention. I would like to take the opportunity to provide some further detail on the points raised by noble Lords in this debate.

The noble Baroness, Lady Wilcox, raised consultation with local authorities. We undertook public consultation on building upwards, which included local authorities. Other temporary measures were brought forward at pace to give flexibility to local authorities to hold outdoor events. The noble Baroness, Lady Redfern, the noble Lord, Lord German, and my noble friend Lord Bourne asked why these planning measures were grouped with other coronavirus measures to kick-start the economy. This is to keep both sets of measures in one instrument; it is important to make the most efficient use of the instrument. It is possible to use an instrument to amend more than one order, which is why the compensation regulations were also amended. The noble Lord, Lord German, also queried the vehicle’s use in respect of permitted development orders. Negative procedure orders are the only way to amend the general permitted development order, as I understand it.

A number of noble Lords, including the noble Lord, Lord German, and the noble Baroness, Lady Pinnock, raised the issue of community engagement being affected by this approach to planning. The permitted development right for building upwards on existing blocks of flats is subject to prior approval by the local planning authority. This allows the consideration of key planning matters. Among other matters, they can consider the external appearance of the building and the development’s impact on the amenities of the existing building and neighbouring premises, which includes overlooking privacy and the loss of light. There is no deemed consent and these planning issues can be raised. The local authority is required to consult with adjoining owners or occupiers of the land adjoining the site.

The noble Lord, Lord German, and my noble friend Lord Randall both raised the issue of egress. New permitted development rights to extend existing buildings upwards allow engineering operations to construct the additional stories and safe access to, and egress from, the new homes. Both the noble Lord, Lord German, and the noble Baroness, Lady Pinnock, raised the issue of disruption to occupiers and neighbours. We are aware that development can have an impact on both occupiers and neighbours, and that might occur during the construction of additional homes by building upwards. To ensure that this is considered before work commences, a developer has to prepare a report setting out the proposed hours of operation and how they intend to minimise any adverse impact of noise, dust, vibration and traffic movements during the building works on occupiers of the building and neighbouring premises.

The noble Lord, Lord Bhatia, and my noble friend Lady Gardner both made the point that this does not address the problem of homelessness. A number of noble Lords—including the noble Baronesses, Lady Ritchie and Lady Wilcox—mentioned that this does not specifically contribute to the provision of affordable housing. It is true that the permitted developments do not require affordable housing provision and do not tackle homelessness. However, I point out that where additional floor space is created through the right, and the local authority has a charging schedule in place, a community infrastructure levy might be payable. In addition, registered providers or local authorities can use the right to extend their blocks to provide more affordable and social housing.

The quality of homes was raised by the noble Baronesses, Lady Wilcox and Lady Redfern, and the noble Lord, Lord Thurlow. All homes built under permitted development rights are required to meet building regulations. In addition, such developments must conform with any conditions required by the prior approval. We have introduced a new requirement that homes delivered under this and other permitted development rights must have adequate natural lighting in all habitable rooms. This issue was raised by a number of noble Lords in the debate. We expect that the developers will want to bring forward homes that are of good quality and marketable.

My noble friend Lord Bourne raised the issue of space standards. It is a government priority to see new homes brought forward, and we think that developers are best placed to assess the type and size of homes best suited to the local market. We know that some well-designed new homes delivered through both planning applications and permitted development rights are smaller than the voluntary space standards. We do not wish to place stricter requirements on homes delivered through permitted development than through planning applications. I should also point out that smaller properties can be less expensive to buy, opening up home ownership to more people.

The noble Lord, Lord Rooker, raised the issue of HMOs. Homes delivered under these rights cannot be used as houses in multiple occupation. Local authorities have the power of enforcement if there is a breach of planning laws.

My noble friend Lord Bourne, the noble Lord, Lord Thurlow, and the noble Baroness, Lady Wilcox, all mentioned the impact on leaseholders, potentially adding to enfranchisement costs. Freeholders will have to comply with the terms of any lease in taking forward proposals to extend the building upwards. The Law Commission’s report on enfranchisement valuation, recently published, includes an option for leaseholders to elect to take a restriction on future development of the property. This would have the effect of reducing the price otherwise payable when a leaseholder or group of leaseholders purchase the freehold. We are considering the detail of the Law Commission’s proposals and will make an announcement in due course.

My noble friend Lady Altmann raised the issue of prior limits on total units. You can apply to vary the conditions of a planning application. National permitted development rights do not remove existing conditions placed on a granted planning permission. My noble friend Lord Taylor raised the issue of utilities, among other issues. The right allows for the moving of existing plant—for example, the water tank or air conditioning units on the roofs of buildings.

The noble Baroness, Lady Pinnock, raised the very important issue of building safety. As the building safety Minister, this is obviously something I consider to be of the utmost importance. Ensuring that buildings are safe remains a priority for this Government. Whether homes are brought forward through a planning application or through a permitted development right, they are required to meet fire and other building safety requirements. The new permitted development right to extend existing buildings upwards allows the engineering operations to construct the additional storeys and the safe access to, and egress from, the new homes. In the interests of time, I will write to my noble friend Lord Randall on some of the issues he raised, such as the time limitation and local authority markets.

The purpose of the regulations is to enable businesses to continue to operate safely during the coronavirus outbreak and to support housing delivery and economic recovery. Together with further statutory instruments laid in July, they form a package of measures to speed up and simplify the planning process to create new homes on existing blocks of flats and help businesses to continue to operate safely and to respond quickly to changes in how communities use their high streets.

The regulations we have considered today introduce a new permitted development right which allows the upward extension of detached purpose-built blocks of flats for the construction of new dwelling houses. This builds on national planning policy to boost density without the need to build on greenfield sites. Permitted development rights make an important contribution to housing delivery, helping us to meet our plans for 300,000 new homes per year. These rights have brought forward schemes that might not otherwise have come forward.

In conclusion, delivering new homes is a key priority for this Government. These regulations are an important tool to help drive up delivery by simplifying and speeding up the planning system. They also form part of our response to help businesses operate during the coronavirus outbreak. Having introduced a new category of permitted development right to construct new dwelling houses, we are keen to ensure that the rights are operating effectively, so I can assure the noble Baroness, Lady Andrews, that we will be keeping their implementation under review and monitoring the impact. In the words of my noble friend Lord Naseby, this is a useful addition.

These permitted development rights make effective use of existing residential buildings and gently boost density. They avoid the need for sprawling greenfield development by focusing on existing residential locations and areas more likely to have access to public transport. The rights respect the appearance of the existing streetscape while ensuring that the amenity of neighbours is considered through prior approval considerations.

[Lord German (LD)]

My Lords, I am grateful for a moment to reply to the Minister. I note that the issue of the way in which these regulations and those which are to follow, which are all in the sphere of planning regulations, was not answered in the debate. It is a matter of concern for us all that we will be faced with other regulations which will address the same issues. While we have not had the answers, I have no fear that we will have an opportunity to do so again in future weeks before us and before this House.

Motion agreed.