Permitted Development Rights: changes in the context of the Coronavirus pandemic

Planning Law solicitor, Michael Harman, discusses the government's introduction of permitted right Class DA.

Following the introduction of the current self-isolation, social distancing and “lockdown” measures, the government, with effect from 10am on 24 March 2020, permitted restaurants, cafes and pubs to provide a takeaway or delivery service for hot and cold food by the introduction of Class DA to Part 4 of Schedule 2 of the GPDO.

The explanatory memorandum confirms that the purpose of Class DA is to support businesses and the availability of food supply. It was clear that the government felt that immediate action was required in departing from its ordinary rules providing for changes not to be introduced earlier than 21 days after a ministerial announcement, it being stated that “being able to offer a takeaway and delivery service will minimise the contact between the service provider and the members of the public, reducing the likelihood of exposure to the virus. The number of people self-isolating, which is expected to increase in the coming weeks, is also likely to increase the demand for home food delivery” but equally to “support restaurants and cafes, pubs and other drinking establishments” during these unprecedented times.

Class DA is time-limited and is for a period of 12 months; ending on 23 March 2021.

The right under Class DA is subject to a condition that the developer must notify the Local Planning Authority (‘LPA’) if the building (and any land within its curtilage is being used, or will be used, for the provision of takeaway food at any time during the relevant period (i.e. 24 March 2020 to 23 March 2021)).

If the Class DA permitted right is implemented, then the building (and any land within its curtilage) must revert to its previous lawful use at the end of the relevant period or, if earlier, when the developer ceases to provide takeaway food under Class DA.

An Article 4 Direction cannot preclude new permitted development right Class DA. Unsurprising given the government’s reasoning behind the introduction of Class DA.

However, the change permitted by Class DA could be precluded by a planning condition prohibiting a takeaway use and/or delivery service when granting permission within A3 (restaurants and cafes) or Class A4 (drinking establishments). This is because Article 3(4) of the 2015 GPDO prescribes that “Nothing in this Order permits development contrary to any condition imposed by any planning permission granted or deemed to be granted under Part 3 of the Act, otherwise than by this Order”. It is unclear why the government did not disapply Article 3(4) given the unprecedented circumstances that have given rise to Class DA. Perhaps this will come.

Turning to other permitted development rights, at the time of writing, not much has changed following “lockdown”. The absence of such change has led to some to air concerns that unscrupulous developers will rely upon deemed prior approval for various categories of permitted development at a time when LPAs may struggle to process prior approval applications and to determine them and notify the applicants of their determination within the relevant time limit (28 days, 42 days or 56 days as the case may be). So, unsuitable forms of development may be deemed to have prior approval simply because the LPA is overburdened in consequence of the coronavirus pandemic.

So, we may well see the government changing the rules regarding “prior approval” and notification. Perhaps simply changing the relevant time limits/deadlines. Perhaps enabling an LPA to, having given advance notification, extend the period for the determination of the prior approval application to not more than [x] days. As another alternative, perhaps changing the Order so that the failure of a LPA to notify in time means that prior approval is deemed to have been refused. Time will tell.

With the fast-moving changes in government policy this article was correct as at 2 April 2020. Further updates will be provided once available.