Updated 27 October
Planning legislation and processes - including emergency powers for health and local authorities.
Planning coronavirus update:
- New planning uses categories could help flexible planning on diversified farms
- Extensions to planning permissions due to run out by December 2020
- Permitted development rights for outdoor activities extended for up to an additional 28 days (England)
- Local authorities encouraged to help caravan and holiday parks to extend their seasons
- Updated business guidance and legislation allowing for wider use of outdoor space in addition to takeaways and deliveries
- Planning appeals and inquiries moving online only and in different formats
- Permitted development right allows local authorities and health authorities emergency rights to deal with coronavirus outbreak
- Update on how local planning authority services are being affected
- Complying with section 106 planning obligations and the Community Infrastructure Levy
- Guidance for on farm construction sites, new system to change working hours
Please also check local planning authority websites and government websites if you can as guidance is being updated daily. Farmers in Wales can access bespoke guidance on the NFU website and the Welsh Government here.
Government announces more opportunities to change the use of buildings; protect community uses;
From 1 September 2020: A new commercial, business and services use class.
A new amalgamated Class E (commercial, business and services) now allows for a change of use between commercial uses such as shops, restaurants, indoor sports facilities, offices, studios, light industrial units without the need to formally apply for planning permission. This will include businesses in rural areas and on diversified farms. It provides flexibility as a change of use within a single use class is not considered to be development and therefore does not require planning permission.
There are some restrictions in terms of changing use between different uses. For example, they cannot be used if there are restrictive conditions on existing planning permissions, or in Section 106 legal agreements, or where private covenants apply. Planning permission may still be required for any external works that are needed, such as the addition of windows and doors, or to create additional car parking. Farm shops may also be exempt from this use if they are classed under the new Class F.2 Community use ( please see below for further details). This classification may be applied if a small shop (not more than 280 square metres) sells essential items such as food and there is no other such facility within 1000 metre radius.
This useful change to planning rules is something the NFU has been asking the government to consider. Farm diversification projects have not always fitted into the previous uses classes order. In some cases this made it more difficult to obtain business support during the lockdown. It is also hoped that the new use class may help town centres businesses, especially as many have close links with their farming and rural communities.
Please note that the new part E falls under Part 2 of the Town and Country Planning (General Permitted Development) Order 2015 (as amended) and it will only apply in England. There is also an existing Part E under Part 1 which relates to domestic outbuildings, so if you look this up online you may get directed to this be mistake. More guidance is expected to follow, but you can see the new legislation here or read further explanation here.
In October there was a legal challenge to this new legislation in the Planning Courts. The legislation was intended to stay in place until 31 July 2021, but may be withdrawn if the legal challenge is successful. Members seeking to use this use class change may therefore be advised to inform their local authority (by email or letter) that they intend to do so and to ask for this to be acknowledged, so there is a clear paper trail.
From 1 September 2020: New Local community and learning Use
The need to retain essential community facilities has been recognised by new Local Community and Learning use classes, also coming into force on 1 September.
There are two new uses classes which group ‘Local Community and Learning’ uses into two categories. Part 2, Part B, Class F.1 includes building used for educational, museum, art gallery, public library and public halls or as places of worship into a new category and Part 2, Part B, Class F.2 which includes small, essential shops, halls whose principle use is for the community, and outdoor and indoor sports areas and swimming pools.
In the past some of the new local community and learning uses classes may have fallen under a use class known as Class D. Others may have not fallen within a specific use class at all (and hence were known as sui generis). This meant the uses of these buildings could not be kept in community uses so easily.
Class F.2 recognises how valuable these uses are for communities and hence why they warrant a separate use class.
If your planning application is going to run out of time before December 2020, the good news is you now have until 1 May to make a start. Meaning this could save you the time, the cost and uncertainty of submitting a further planning application.
To take advantage of the changed regulations, and to ensure you implement your planning permission correctly, all original pre-commencement conditions need to be discharged and work commenced before the end of April. (to meet 1 May deadline). Members may also need to check any planning obligations and or potential community infrastructure levy requirements.
The NFU has lobbied for extensions to planning permissions, appreciating that members may have had to put future development plans on hold, in the short term, to deal with the Coronavirus outbreak and its impact on their farm businesses and families.
The rules will not apply to permitted development sadly, so all Class Q and Part 6 applications have to be complete within the designated timeframes. The NFU is also awaiting clarity on if and how the rules will apply to temporary permissions, for example for the stationing of caravans and time limited changes of use. If in doubt check with your local planning authority.
No relaxation of time limits for completion of work on permitted developments.
Permitted development rights can require completion of all works otherwise in theory enforcement action can be considered. For example, works under Part 6 (Agricultural Buildings and Operations) must be carried out with five years of date of prior approval or submission of information and the local authority notified in seven days. In England, where Class Q Agricultural to residential barn conversions rights exist time limits are stricter, they must be completed, and the Local Planning Authority notified within the three-year time limit.
Members would still be advised to complete works whenever they can and write to their local planning authority before the time limit runs out to confirm this. This will provide evidence they have complied with the requirements of their permitted development if this is ever challenged in the future.
New permitted development right extension allows for outdoor activities for a potential additional 28 days (England)
Under a new permitted development right (Part4; Ba) the government is allowing outdoor activities, which can currently occur as permitted development to take place for a potential further 28 days between 1 July 2020 and December 2020. Activities such as outdoor markets and motor events are restricted to 14 days.
Further guidance will follow, but generally the restrictions follow on from the ones currently in force, which restrict such uses in protected landscapes and where they impact on listed buildings.
The Housing Minister Robert Jenrick provided further guidance on 14 July to ensure local planning authorities helped caravan and holiday parks to extend their season and provide a proportionate and flexible approach to the enforcement of conditions and obligations. Where local planning authorities consider it appropriate to require an application to vary relevant planning conditions (where for instance there is a risk of flooding or where parks are situated close to protected sites) they should prioritise the application and make an early decision to provide certainty to caravan and holiday park operators. In doing so, they should consider the benefits of longer opening season times to the local economy as it recovers from the impact of COVID-19.
Updated business guidance and legislation allowing for wider use of outdoor space in addition to takeaways and deliveries.
In England, updated business guidance has accompanied a new Business and Planning Bill to help businesses re-open and to clarify licencing rules.
Many businesses and retail services have been shut down during the outbreak and additional clarity as to when can remain open and what precautions they need to apply is also provided in the business guidance.
Permitted development rights can still be used to allow takeaways and deliveries where businesses cannot re-open on 4 July. Restaurants and public houses, wine bars or other food and drink establishments including within hotels and members’ clubs can apply to their local planning authority to offer these services up to 23 March 2021.
Further guidance for NFU members is available in Business Guide BG927: Planning Update (England) Class DA Temporary permitted development rights for takeaways and deliveries during the coronavirus outbreak. Visit our Business Guides page.
In Wales there are no temporary permitted development rights for takeaways but the advice is that planning applications directly responding to COVID-19 should be prioritised as should ‘some applications to maintain food supplies’.
New permitted development right allows local authorities and health authorities emergency rights to deal with coronavirus outbreak.
More information is available on the government website.
In Wales, separate legislation has been introduced, with a time limit of 12 months.
The Planning Inspectorate has closed its offices in Bristol and Cardiff. The Appeals Casework Portal can receive online submissions but cannot receive correspondence via post.
For planning appeals, rights of way and Commons Act 2006 cases, where possible, planning appeals are progressing using photograph or video evidence instead of a site visit. The planning inspectors can now attend appeal site visits where they can safely do so under social distancing regulations.
The Planning Inspectorate has started trailing virtual hearings with the government announcing that it would expect that all hearings can be held online within weeks. Planning Inspectors will also be able to change the type of appeal approach more easily. In the past the choice of written representations, hearing or inquiry has been fixed.
Members are advised to highlight any concerns about access to online only services and delays to the Planning Inspectorate (each case will have a case officer allocated on online paperwork).
For local plans, planning inspectors will continue where possible to progress the pre- and post-hearing stages of the examination, depending on the stage reached. There will be delays as local plan hearings have been delayed, but some are now starting to take place virtually.
Local planning authorities are required to publish updates on their websites and most have a bespoke page for inquiries.
Permitted development right allows local authorities and health authorities emergency rights to deal with coronavirus outbreak
Local authorities and health authorities can use a new part 12A permitted development right on their own land and buildings, and other land and premises they can temporarily lease to provide hospital and testing facilities for example. The permitted development right can be applied more broadly to help food supply chains if the local authority thought this was part of the response they needed to help deal with the national emergency.
The temporary use can last until 30 December 2020. A full planning permission would be needed to retain the use beyond this time. When the temporary use ceases, the building or land will return to its original planning use.
Government guidance published on 13 May has confirmed that holiday accommodation including hotels, hostels, B&Bs, holiday rentals, campsites and boarding houses can provide services to any critical worker that is part of the effort to deal with coronavirus. This includes people involved in the production, processing, sale and distribution of food.
The clarification means farmers seeking to use holiday accommodation for seasonal worker use can do so, without having to formally apply to the local planning authority. If they are questioned, they can refer to this guidance. In ordinary times the use of holiday accommodation for seasonal worker use could require planning permission, but during the coronavirus planning departments have been advised to be more flexible.
In Wales there are temporary permitted development rights to help local and health authorities but no new planning support for wider businesses. Updated business guidance has been published in the event tourism businesses are given the go-ahead to re-open following announcements on 6 July and 9 July.
Local authorities have also been urged to return to business, including using online services to assist with publicity and meetings.
Further information is available at the planning and infrastructure section of our COVID-19 'Guidance on environment and rural issues' web page.
Update on how local planning authority services are being affected
On Tuesday 24 March the Government’s Chief Planner issued guidance about changes to the planning system and how the planning system should work during the coronavirus lock down period. A reassuring message for farmers and the food chain is his advice:
...that urges local planning authorities to apply pragmatism to the enforcement of restrictions on food and other essential deliveries at this time. Local planning authorities should also use their discretion on the enforcement of other planning conditions which hinder the effective response to COVID-19...
Local planning authorities have shut their offices, with officers working at home or potentially reallocated to other duties. This means planning services will slow down and information can only be submitted or viewed online. In England site notices will continue to be displayed, but not in Wales.
The move to online services could be an issue for members with poor broadband, so please highlight this to planning officers and local councillors and ask for additional time.
It will not be unusual for local planning authorities to be asked for extensions of time for planning applications and exceptionally for prior approvals for permitted development such as Part 6 Agricultural buildings and operations.
In the short-term many council meetings, including planning committees may have to be cancelled but these may start again as virtual meetings using video or telephone conferencing technology until 21 May 2021, following new legislation introduced on 4 April.
Members engaged with the planning system are encouraged to look on their local planning authority website, where there will be bespoke guidance, links to planning applications and local plans and email addresses for case officers.
The government is also working to bring in a new law to delay by-elections, local polls and referendums until 6 May 2021.
Ombudsman resumes dealing with complaints and investigating complaints made during the lockdown
The Local Government and Social Care Ombudsman had stopped handling new complaints as local authorities had not been able to respond to them during lockdown. The service has now resumed, and complaints made since from March onwards will now start to be processed too.
Farmers may have to contact their local authority now if they cannot afford to pay Section 106 or Community Infrastructure Levy monies. It is important to explain how the difficulty has arisen within the context of the coronavirus outbreak. The situation should be different to the complexities of larger housing development. The situation is also different for members within London boroughs, where Mayoral charges may also apply.
Councils do have the ability to act; to decide not to collect monies in exceptional circumstances but they must formally notify their intention to do so. The potential for a coronavirus outbreak was not considered when Planning Practice Guidance and Viability guidance were drafted so expect different council approaches.
Some local authorities may allow some flexibility where the end result is the same (for example where monies may just be delayed but will still be paid or a junction improvement gets completed later due to no work being possible at present). Local planning authorities may apply this flexibility because formally changing a legal agreement or tariff regime is more costly and complicated.
Guidance for on farm construction sites
For farmers undertaking building projects, work may be able to continue if workers on-site are able to follow the latest public health guidance. This advice is under review and subject to change. Local Authority Building Control services may still do site visits.
Local planning authorities have been advised to apply flexibility and seek to avoid taking enforcement action against short term or modest increase to working hours. if they are needed to permit social distancing. If there needs to be longer term or more significant changes to working hours, it may be necessary to apply to the LPA to temporarily amend a condition or a construction management plan. New planning legislation should soon be coming into place to allow this to happen more easily when the Business and Planning Bill becomes law.
Please find more information on health and safety and wellbeing on the dedicated NFU web pages.