Why permitted development right for Covid-19 response facilities could allow more than hospitals

A hastily-introduced measure to regularise the planning position on temporary hospital facilities in response to the coronavirus pandemic opens the way for possibly unanticipated uses operating under a relatively relaxed regime, experts argue.

Construction of the Nightingale hospital in east London: consented using new permitted development right. Pic: Getty Images
Construction of the Nightingale hospital in east London: consented using new permitted development right. Pic: Getty Images

The government has announced a new permitted development (PD) right aimed at supporting the battle against Covid-19. The Town and Country Planning (General Permitted Development) (Coronavirus) (England) (Amendment) Order 2020, which came into effect on 9 April, allows local authorities and health service bodies to change the use of existing structures and construct new buildings as required “in undertaking their roles to respond to the spread of coronavirus”.

The timing was notable, given that NHS Nightingale London, the specially built hospital in east London’s ExCel Centre, had been officially opened six days previously and work was already progressing on similar facilities in other cities. Hannah Quarterman, a partner at law firm Hogan Lovells International, said the ExCel’s rapid conversion reminded government that planning approval is still a legal requirement.

“It’s likely that the need for the hospital focused the government’s attention on the need to address this issue,” she said. “A planning application was submitted, but legal processes around consultation meant it couldn’t be determined before the hospital opened. That application has now been withdrawn and notice served confirming that the development has been carried out under the new PD rights.”

Given the scale of the crisis, it was never likely that a planning authority would have pursued enforcement action against a healthcare body. But Duncan Field, a partner at law firm Town Legal, said the new right should still provide reassurance. “In other instances where facilities had already been put into place without planning permission before the PD right came into force, the very fact that it is now available provides further justification for not taking enforcement action,” he said.

The right is strictly time-limited. Any emergency operation in converted or new structures has to cease by the end of the year and land or buildings restored to their previous state within 12 months, unless otherwise agreed with the local planning authority. In the meantime, according to experts, the new right is very powerful. While coronavirus is mentioned specifically, Matthew White, head of planning at law firm Herbert Smith Freehills, and Field both said the language used is very broad, so the right could apply more widely than just the current situation.

“The definitions of ‘health service body’ and ‘emergency’ are very wide and the restrictions are only limited, making this an extensive right that will cover a broad range of developments,” said White. “The explanatory memorandum recognises there is a need for broad rights because it is difficult to predict the types of development that may be required.”

Field said that, depending on the spread of the virus, the new PD right could "be used extensively if the need arises". He added: "We might see this used more commonly by NHS trusts to expand the capacity of existing hospitals temporarily and by other health service bodies and local authorities to provide coroner facilities, mortuaries and testing units." 

In the short term, White suggested that the right is likely to be used for urgent healthcare facilities but, once the current lockdown rules are eased, it may well be used for "large-scale testing facilities". He also pointed out that it could be used to provide temporary accommodation for NHS staff and health sector volunteers.

Quarterman said the right also enables smaller-scale developments, such as providing staff car parking for hospitals, hosting temporary testing centres, or using hotels as temporary accommodation. "I suspect that the rights will be used quite widely on a small scale," she added.

White pointed out that the mechanism allows private landowners to use their buildings to support the coronavirus effort, provided the properties are leased by or licensed to a council or health service body. “Many owners of commercial buildings that cannot be used as a result of social distancing are considering whether their premises can be put to good use to help the NHS.” 

Michael Chang, co-founder of the Health and Wellbeing in Planning Network and visiting fellow at the WHO Collaborating Centre for Healthy Urban Environments at the University of the West of England, is surprised at the lack of conditions. “There are some, but mainly to do with height rather than matters such as traffic, noise, contamination and storage of chemicals,” he said. “All of those are issues I would have expected to be in the conditions. It was probably quite a rushed piece of regulation.”


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