How the right to demolish to make way for new homes might work

The government has resurrected its long-standing idea to introduce a new permitted development right to allow office buildings to be demolished and replaced with new homes. Commentators suggest the new right may be implemented via changes to the General Permitted Development Order and could involve the introduction of new lighting standards.

Demolitions: new PD right on the way
Demolitions: new PD right on the way

It's the planning proposal that refuses to die but, despite being first floated five years ago, has never come into force. Last week's "Planning for the Future" policy document, published by the MHCLG, resuscitated the controversial idea of creating a new permitted development (PD) right to demolish vacant buildings and replace them with new homes. This is despite the fact the government appeared to kick the plan into the long grass a year ago after two-thirds of respondents to an official consultation opposed it.

The idea was first suggested by ex-housing minister Brandon Lewis in 2015 and then again in 2018 by former housing secretary James Brokenshire. Commentators said the commitment to consult on it again in such a high-profile announcement indicates the government is now determined to push it through. Mike Kiely, chair of local authority body the Planning Officers' Society, said: "We keep hoping this idea would die, but it comes back. It does feel like it's going to happen this time."

Last week's policy paper contained just one sentence on the proposal, promising to "consult on the detail" in the future. But some differences from earlier proposals are clear. Where previously, the government talked about easing planning rules for the demolition of commercial or office buildings only, last week's document broadened this out by saying the new right would apply to "vacant commercial buildings, industrial buildings and residential blocks".

It also seems unlikely to work in the same way as existing PD rights. Under the General Permitted Development Order (GPDO), the regulations governing PD rights, planning authorities determine such applications under a streamlined prior approval process and have very limited criteria under which they can turn them down.

But, the policy paper states that the new PD right will permit buildings to be demolished and replaced only with "well-designed new residential units which meet natural light standards". Claire Fallows, a partner in the planning team at law firm CRS, said this is aimed at heading off objections previously prompted by this proposal - and by other existing PD rights -that it will lead to the creation of very small, poor-quality new homes.

Another difference with earlier proposals on easing demolition-for-housing rules is how it would be introduced. At first, ministers proposed that it would be via a new PD right, and therefore would use the prior approval process under which most existing PD applications are considered. But last autumn, the current secretary of state Robert Jenrick made it clear that ministers were instead looking at introducing the new "freedom" to demolish commercial buildings and replace them with homes using the permission in principle (PiP) route.

PiP is a two-stage form of consent introduced in 2017, with an 'in principle' permission first achieved, before detailed planning issues are dealt with through a technical details consent. At the time, Jenrick suggested this would allow councils a greater degree of control than a PD right, with possible considerations including quality, size of homes, parking and the appearance of facades.

While this idea wasn't ruled out in last week's policy paper, neither was it mentioned, and many practitioners now suspect it may have been dropped, given the low uptake of PiP. Grant Leggett, head of planning consultancy Boyer's London office, said this indicates the government has backed away from the PiP route, which developers worry could prove more long-winded than the traditional planning application process. "If it's PiP, I suspect this idea will be a damp squib," he said. But, he added, if it is introduced as a PD right - without the requirements to pay developer contributions such as affordable housing or the full application fee, or to meet local policy requirements - then "for some developers this will be a bonanza".

If PiP is not used to enforce design and "natural light" criteria, then the obvious alternative is to amend the GDPO, which could be done without primary legislation, according to Karen Cooksley, head of planning at law firm Winckworth Sherwood. Stuart Baillie, head of planning at consultancy Knight Frank, said the GDPO could be used to control design quality if a criterion were added that developments must adhere to local design codes, which is also envisaged under the reforms announced last week. "The challenge there will be that authorities don't have the design expertise to draw these codes up," he said.

Jenrick has also suggested the "natural light" criteria may be policed using a new government-created test. While this wasn't explicit in the policy paper, when announcing the planning changes in the House of Commons he referred to "new natural light standards" that homes produced under the right would have to comply with. Winckworth Sherwood's Cooksley said this would get around the problem of existing standards, policed by the Building Research Establishment (BRE), which she said are difficult for dense urban schemes to meet. "The BRE standard doesn't respond to the way many people live," she said, "and this will make sure light is talked about in a different way."

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