Jon Bower, planning and infrastructure head at Womble Bond Dickinson, examines the government’s proposed changes to planning for the delivery of key public service infrastructure
On 3 December, the Ministry of Housing, Communities & Local Government (MHCLG) published a consultation on measures to support the provision of public service infrastructure and housing delivery.
The consultation proposes and seeks views on:
- A new permitted development right (PDR) for the change of use from Commercial, Business and Service use (new Class E) to residential (Class C3).
- Simplifying and consolidating existing PDRs.
- Expanding existing PDRs for educational establishments and hospitals, and extending them to prisons.
- A modified planning application and determination procedure for more substantial school, college, university, hospital and prison development for which planning permission is needed.
The changes would apply in England only. The consultation runs until 28 January 2021.
This article considers proposals three and four in more detail below. The proposals in one and two are considered in a further briefing which can be found here.
Delivering public service infrastructure
With the National Infrastructure Strategy (NIS) published on 25 November, the government set out an ambitious long-term investment strategy to improve the country’s infrastructure and public services. Read our briefing on the NIS here.
The strategy includes ensuring that planning supports the faster delivery of new schools, hospitals and other public service infrastructure developments. The NIS signalled that the government would be consulting on amending the permitted development rights (PDRs) to allow schools and hospitals to be expanded more quickly.
The consultation now proposes to amend existing PDRs to allow schools, colleges and universities, hospitals and prisons on existing sites to expand, adapt and construct additional buildings without the need for full planning permission.
Also included are proposals for a faster planning application determination process on applications for larger hospital, school, further education college and prison development, including development on new sites.
The current PDRs
The existing PDR is subject to size limits the effect of which is to limit extensions or additional buildings to no more than 25% of the gross floor space of the original buildings with a maximum cap of 100 sq m, or 250 sq m in the case of schools. It also restricts the height of new buildings to 5m. The right provides protections for nearby residents in that it restricts development close to the boundary and, in the case of schools, safeguards playing fields.
The proposed amendments
The government propose to amend the existing PDR to allow an expansion of facilities by up to 25% of the footprint of the current buildings on the site at the time the legislation is brought into force, or up to 250 sq m, whichever is the greater.
This would allow greater flexibility for those sites that have enlarged or developed additional buildings over time and flexibility for those premises with a smaller footprint. To provide further flexibility, it is also proposed that the height limit is raised from 5m to 6m, excluding plant on the roof, except where it is within 10m of the boundary or curtilage.
To benefit from the right, the site would already have to have sufficient land to build the extension or new building. In the case of schools, playing fields would continue to be protected.
It is proposed that prisons will be able to expand their facilities by up to 25% of the footprint of the current buildings on the site at the time the legislation is brought into force, or up to 250 sq m, whichever is the greater. The buildings may be no higher than 6m, excluding plant on the roof. This flexibility would apply specifically to prisons and not to other residential facilities, such as to immigration removal centres.
The defence estate
The defence estate is a significant part of public service infrastructure and in the coming years will receive investment to fulfil the operational requirements of the UK armed forces and the accommodation standards deserved by their service personnel and families. As part of the wider consultation, government will consider how the PDRs, or similar rights, could enable the expansion or construction of new buildings “within the wire” on existing defence sites. This will support the Ministry of Defence as it commences its once-in-a-generation Defence Estate Optimisation Programme (DEOP), both improving the standard of defence infrastructure and creating 5,000 jobs throughout the UK.
New development: A faster planning application process
Many of the new hospitals, schools, further education colleges and prisons that the government will be funding will involve more substantive development on new sites which are outside the scope of proposed PDR changes.
Recent experience has shown that the determination by local planning authorities (LPAs) of applications for such substantive public service developments has often taken considerably longer than the statutory timetable of 13 weeks (or 16 weeks in the case of Environmental Impact Assessment (EIA) development). For example, the MoJ report an average of eight months for new prison infrastructure across the past four years.
While the government believes that it is right for public service providers to continue to submit a planning application to the LPA to secure planning permission, it is of the view that it is critical that decisions on these projects are made faster.
The consultation proposes to provide for this by amending the procedure regulations (Town & Country Planning (Development Management Procedure) (England) Order 2015, SI 2015/595) to create a modified application/determination procedure for public service development. This would aim to encourage greater prioritisation by local authorities of public service infrastructure projects, including shorter timescales for determination.
Categories of “major development” which will be subject to the modified process
The modified process would apply to development principally funded by government, including hospitals, schools and further education colleges, and prisons, young offenders’ institutions and other criminal justice accommodation. The consultation recognises that it will be necessary to provide a clear definition for these categories of development.
It is proposed that development would fall within scope of the modified process if:
- It is a “major development” (defined in the regulations) carried out on a site having an area of 1ha or more, and/or involve the provision of a building(s) where the floorspace to be created by the development is 1,000 sq m or more.
- It falls within one of the defined categories of development.
- It would currently be subject to a 13-week statutory determination period.
- The definition, timescales and procedures for EIA developments set in separate EIA regulations would remain in force. This means in practice public service developments over 5ha in size would not be covered by the modified process, unless there has been a screening opinion that determines that the development does not constitute EIA development.
The new determination process would have a number of features to encourage greater prioritisation by LPAs including:
- A shorter determination period.
- Modified consultation and publicity requirements.
- Measures to increase transparency.
Development within the scope of the modified procedure would be subject to a 10-week statutory determination period. This would require LPAs to prioritise these decisions over other applications for major development.
The consultation notes that it is already made clear in paragraph 94 of the National Planning Policy Framework (NPPF) that LPAs should work with schools’ promoters, delivery partners and statutory bodies to identify and resolve key planning issues before applications are submitted. This will be expanded to include other priority public infrastructure developments. The Planning Practice Guidance (PPG) would also be amended for applicants, statutory consultees and LPAs to emphasise the importance of pre-application engagement and prioritising these developments.
These types of development will have a new bespoke planning application form and the consultation suggests that where decisions are to be taken by a planning committee, LPAs may wish to consider bringing forward the committee meeting.
The consultation proposes that the minimum consultation/publicity period should be reduced from 21 to 14 days, subject to maintaining the current requirement to add extra days if the consultation period includes bank or public holidays.
In addition, it is proposed that the secretary of state should be notified when a valid planning application is first submitted to an LPA and when the authority anticipates making a decision.
Note that it is not proposed to change the fee for these projects.
The consultation states that it is equally important that LPAs prioritise any subsequent post-permission consents for these projects, including reserved matters applications for outline permissions, discharge of condition applications, and any Section 73 or Section 96A applications to amend the permission, as well as to prioritise the negotiation and finalisation of any associated Section 106 agreements, to ensure the permission is readily implementable.
The Spending Review (SR20) signalled that the government would be taking steps to ensure that infrastructure funded by SR20 would be delivered better, faster and greener.
To match the UK’s ambitions on economic infrastructure, which are set out in the NIS, SR20 set out a step-change in investment in critical social infrastructure and the UK’s public services. It provides multi-year funding to build 40 new hospitals, plus operational investment to allow hospitals to refurbish and maintain their infrastructure.
SR20 also launched a 10-year programme to build 500 schools, multi-year funding to deliver on the commitment to bring all Further Education college estates in England up to a “good” condition, and substantial investment to make progress in delivering 18,000 prison places across England and Wales by the mid-2020s.
The Covid-19 pandemic, including the assembly of the Nightingale hospitals in record time, demonstrated that the UK can deliver critical infrastructure at pace. With this consultation the government is continuing with changes to PDRs as a quick way to address perceived delay and hurdles in the planning system.
Partner and planning and infrastructure head
Womble Bond Dickinson
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