Our Commercial Property department looks at one of the new changes made to permitted development rights which came into force on 25th May 2019.
What are Permitted Development Rights?
In 1990 the Town and Country Planning Act (‘TCPA 1990’) came into effect – this legislation essentially required planning permission to be obtained when carrying out any development on land. Development includes building works, engineering works, change of use of the building and many more such items.
To make things easier permitted development rights were introduced five years later. These rights allowed the Secretary of State to grant deemed planning permission for certain types of development and material changes of use removing the need to submit a planning application for that development or change of use. Over time the categories of what constitutes a permitted development right have been increased. Giving permitted development rights mean planning permission is automatically granted in these specified circumstances. It is, however, important to remember that the development order by the Secretary of State does not mean that planning permission is not required, it is just that the application process is removed.
What is the significant change to TCPA 1990?
The Town and Planning (Permitted Development, Advertisement and Compensation Amendments) (England) Regulations 2019 (‘2019 Regulations’) have created a new class of permitted development – ‘Class JA’. This new class allows the following uses to be changed to a use falling within class B1(a) (offices) without the need to submit a planning application:
- Class A1 (shops);
- Class A2 (financial and professional services);
- Class A5 (hot food takeaway);
- A betting shop;
- Pay day loan shop; or
It should be noted that there are limitations and conditions on how the new, Class JA operates. For example, this change is not permitted if the building is in a site of special scientific interest or is a listed building. In addition, a building in use as an office as permitted by Class JA cannot benefit from the permitted development rights in Classes F and G, which are available to office buildings generally.
Another one of the changes made by the 2019 Regulations is that Class JA will be added to the list of permitted development rights for which compensation on withdrawal of that right is limited.
What effect does this new change have for landlords?
It is a common term in leases for landlord’s consent to be obtained when a tenant wants to apply for any planning permission. This would include a change of use as well as that for works being done to a property. What, however, is a landlord’s position when a change of use, for example, is given through a permitted development right? Is landlord’s consent required then? Arguably not, as change of use through a permitted development right is a deemed grant. The clause most often found in a lease deals with only where express planning permission is needed. Consent for a permitted development right would not be required. With Class JA increasing the pool of deemed permissions available for change of use, landlords could find themselves in a problematic/difficult situation with use being changed without any control being available to them.
If a landlord requires full control of any change of use occurring to their property, then there perhaps needs to be a change to the way in which leases are drafted going forwards. Should any new lease include an obligation on the part of the tenant to obtain the landlord’s consent to not only express planning permission being obtained, but for a situation where deemed planning permission might be acquired as well? That change should also perhaps extend to the drafting of the user clause in a lease.