What the upwards extension permitted development right would mean for planners

A proposed permitted development right for upward extensions would be subject to prior approval design checks, the government has confirmed. Practitioners say interest in using the right will be strongest in urban areas, but warn that it could generate widespread community objections

Upwards extensions: PD policy shift in the pipeline
Upwards extensions: PD policy shift in the pipeline

Introducing a new permitted development (PD) right allowing buildings to extend upwards without the need for planning permission was first floated by the Conservatives back in 2016. Following a consultation, the proposal, which would have applied to London only, was dropped only to be revived by the former housing secretary James Brokenshire last autumn.

The government consulted again on the idea, which would have applied nationwide, setting out a number of options in terms of the additional storeys that could be added under the right. In a written ministerial statement in March, Brokenshire said the government would take forward a new PD right to "extend upwards certain existing buildings in commercial and residential use to deliver additional homes, engaging with interested parties on design and technical details".

Now, the idea has been resurrected again by Brokenshire's successor Robert Jenrick. At the recent Conservative Party conference, Jenrick told a fringe event the measure would allow the "freedom for anyone to build upwards, to add up to two storeys to your property, where me as secretary of state grants that rather than you having to ask permission to do so, so your home can grow as your family does too".

Reports in national newspapers trailing the announcement said the right would be introduced firstly to purpose-built blocks of flats, but "will eventually be rolled out to all detached properties". Homeowners would "still need to comply with building regulations, but neighbours will not have a formal route to object". However, the Ministry of Housing, Communities and Local Government (MHCLG) would not confirm exact details of the proposals, saying only that it would "support housing delivery and boost density by allowing certain existing buildings to be extended upwards to create new homes".

The MHCLG said the right will be introduced as part of the Accelerated Planning Green Paper that it intends to publish next month. The new right, it added, will be subject to prior approval from planning authorities "in respect of design and appearance". The ministry said it wants to ensure the right "provides quality design and allows for consideration of the impact on the amenity of the area".

Simon Ricketts, partner at law firm Town Legal, speculated that the delay in introducing the measure was down to the complexities involved in drafting the new rules. He said the government needs to balance making the PD right attractive to potential applicants with simple prior approval requirements on the one hand and on the other addressing concerns about design by circumscribing the right tightly. He said: "If the legislation that emerges is towards the latter end of the spectrum it will be a damp squib. If the former, expect many Article 4 directions from local authorities to override the rules."

Applicants are likely to prefer a prior approval process to applying for a planning permission, 

because it requires less detail to be provided, according to Katherine Evans, partner at commercial law firm TLT. She said: "It's also possible for the right to be exercised on a much shorter timeframe than a planning application. There is less opportunity for policy to be applied and less opportunity for decisions to be made in committee. There are also no planning application fees payable."

For council officers, prior approval applications are easier to deal with than planning applications, said Sue Chadwick, strategic planning adviser at law firm Pinsent Masons. She said: "There is no need to write enormous reports taking into account every material consideration." But Mark Batchelor, director at planning consultancy Boyer, said many councils will be concerned, even with a prior approval process, of losing control of the character of historic but unprotected areas.

Commentators suggested the proposals are likely to be taken up more eagerly in urban areas like London but warned that, if there is no consultation requirement, it could generate a high amount of community objections. Anna Rose, head of the Local Government Association's Planning Advisory Service, said that if the rights apply to residential blocks, rather than individual houses, "we are likely to see far more use of the PD right in urban areas where space is at a premium".

Evans said: "There is an opportunity to add extra homes in existing high density areas with a high housing need. But I don’t know if more rural communities will be keen on it." Stuart Irvine, senior director at planning consultancy Turley, added: "It may be appropriate in denser urban areas, where height can be more easily accommodated, but this has the potential to generate more community design objections than elsewhere in the country."

Michael Bach, planning chair at the London Forum of Amenity and Civic Societies, warned that in London, "there are already lots of concerns about community engagement". He also point out that adding two stories to individual properties "is just increasing the value of existing homes, rather than securing additional housing".

Irvine even questioned if homeowners outside London would add much value to their detached homes by adding additional storeys. In such places, he said he could not "see there being a great deal of take-up". In terms of extending blocks of flats upwards, Irvine said the right "might be attractive for housing associations and local authorities with existing housing stock to create additional homes". But he added: "For more commercial developers, I don't think it registers."

Zoe Knott, an associate at planning consultancy Nexus, said the potential for "suburban planning unrest with a mix of neighbour disputes and broken character and amenity value" means the government should take a cautious approach. She said: "One can only hope that if the government is wedded to implementing the changes then they are introduced on a time-limited basis so that the implications can be closely monitored and changes quickly reversed if necessary."

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