Permitted development: a right to demolish & construct new dwellings

A new right applies in England from 31 August 2020 to allow the demolition of certain buildings and the construction of new dwellings in their place. As with other new permitted development rights, the right is subject to many restrictions and limitations and you must consider carefully whether all your proposed works fall within the scope of the right. You will need to obtain the local planning authority’s approval of a considerable amount of information – the procedure is akin to a limited planning application. It may provide a fall-back against which future applications can be considered.

The new laws come into force on 31 August 2020 unless Parliament takes steps to prevent that from happening, which is very rare.

What is the new right?

The new permitted development right will allow you to demolish the following types of buildings which existed on 12 March 2020 (referred to as the old building):

• single purpose-built detached blocks of flats (ie which were built as flats and remain as such)
• other single detached buildings, established for Class B1(a) offices and/or Class B1(b) research and development and/or Class B1(c) industrial process

Detached means that the building must not share a party wall with a neighbouring building.

You may replace the above by a single building comprising either a detached block of flats or dwellinghouse to be used for use class C3 purposes. You may also carry out other operations including:

• operations reasonably necessary for the demolition / construction, which may include installation of a basement or cellar in the new building
• the disconnection and installation of services or plant and the removal and installation of means of access, including fire escapes
• storage, waste and ancillary supporting facilities within the new building
• the use of scaffolding and temporary structures to support the operations from one month before operations begin to one month after completion.

Are there any limitations or restrictions?

There are numerous exclusions and limitations. In respect of old buildings to be demolished, the rights do not apply to buildings:

• unless they have been vacant for at least 6 months before prior approval is sought
• comprising listed buildings and scheduled monuments, or land within their curtilage
• within conservation areas, areas of outstanding natural beauty, the Broads, national parks, world heritage sites, SSSIs, safety hazard areas, military explosives storage areas or within 3km of an aerodrome perimeter
• occupied under agricultural tenancies (unless landlord and tenant agree)
• constructed after 31 December 1989 or where the footprint exceeds 1,000m²
• where the highest part of the roof excluding plant, radio masts and antennae is greater than 18m above ground level at any point
• rendered unsafe or uninhabitable by action or inaction of an owner where it is practicable to secure safety or health by works of repair or temporary support

In respect of the new building to be constructed:

• no more than 2 storeys can be added to the number of storeys in the old building and the internal floor to ceiling height of additional storeys cannot exceed the height of any storey in the old building or, if lower, 3m
• the footprint must be within the footprint of the old building
• no part of the exterior wall closest to the highway can become closer to the highway
• the height excluding plant, radio masts and antennae cannot exceed 7m above the height of the old building (excluding plant) or, if lower, 18m above ground level
• the height of plant on the roof shall not exceed the height of existing plant

Consideration must be given to the standard provisions of the General Permitted Development Order, including where environmental impact assessment may be required and where existing permissions disapply permitted development rights.

Are any approvals needed?

Yes, you must apply for the “prior approval” of the LPA in relation to the extensive list of factors below, which are likely to provide much scope for objection:

• impacts on transport and highways, contamination, flood risk, heritage and archaeology
• design, external appearance and provision of adequate natural light in all habitable rooms
• the impact on the amenity of the new building and neighbouring premises, including on overlooking, privacy and light, and the impact of noise from commercial premises on occupiers of the new dwellings
• the impact on business and new residents of the new or increased residential use in the area
• impacts on certain protected views and on air traffic / defence, unless the new building does not extend beyond the envelope of the old building, including plant
• the method of demolition and plans for landscaping

The application for prior approval must comply with the detailed requirements of the Regulations including a description of the works, floor plans, elevations, a written statement on heritage and archaeology and other matters. Site notices, neighbour notifications and consultation of certain third parties are required, giving the opportunity for representations to be made which must be taken into account.

The development cannot begin until prior approval is received (which may be conditional). There is no deemed approval provision. Prior approval can be refused if the LPA thinks that the proposal does not comply with the Regulations or insufficient information has been provided.

Before you begin, you must provide a report on construction management which is acceptable to the LPA, covering matters including the hours of operation and how adverse impacts of noise, dust, vibration and traffic will be mitigated.

Is there a fee?

Draft regulations have been published which, once in force, will introduce the following fees:

• £334 per new dwelling for proposals of 50 or fewer new dwellings;
• a fixed fee of £16,525 plus £100 per new dwelling for development proposals of more than 50 new dwellinghouses (subject to a maximum limit of £300,000).

The draft regulations also propose a "second application" exemption in certain circumstances.

How long do I have to do the works?

Development must be completed within 3 years from the date prior approval is granted in accordance with the approved details. 

For more information, please contact Claire Fallows.