21 April 2021

When is a flat not a flat? When it’s too small to live in

When it comes to creating new residential property through permitted development rights, bigger really is better.

In February 2021, the Planning Inspectorate rejected a proposal under permitted development rights to convert a chip shop in Leicester into three flats on the basis that the internal space would be too small to constitute dwellinghouses.

Following closely on from news of this appeal, the government has now implemented minimum floorspace requirements for residential properties created through permitted development.

Permitted development rights

The General Permitted Development Order (“GPDO”) allows for the creation of new dwellings through a change of use of existing buildings. This permitted development is subject to prior approval from the Local Planning Authority (“LPA”). Previously, an LPA was only able to refuse permission on a limited range of grounds and was not able to take into consideration matters of layout or floorspace; from 1 August 2020 the LPA must consider whether a proposal for a dwellinghouse provides adequate natural light in all habitable rooms.

Leicester appeal decision

The three proposed flats consisted of units with floor areas varying from 7.7 – 9 sqm. The design included: an elevated bed with dining space beneath; an en-suite shower and toilet separated from the room by a curtain; a kitchenette; and two storerooms to be shared between the three properties, located in the rear yard.

The Planning Inspector noted that a “distinctive characteristic” of a dwellinghouse is the inclusion of facilities required for “day-to-day private domestic existence”. The Inspector concluded that the proposed design did not provide space to move around, did not provide adequate private indoor storage for food or clothing and would not accommodate furniture. The proposed flats could not therefore be considered as dwellinghouses and did not fall under Class M permitted development.

Space standards

The size of residential conversions under permitted development rights has been a concern for some time: the “Technical housing standards – nationally described space standard” (or “NDSS”), setting out GIA requirements for various levels of occupancy, was published in March 2015.

In July 2020, a government-funded independent review on the quality standard of homes delivered through permitted development rights was published. The report concluded that housing created through permitted development rights typically provided poorer quality homes for future occupiers than those created through formal planning permission. Only 22.1% of the developments undertaken via permitted development met the NDSS, and the report acknowledges the potential for such conversions to create slum housing.

The government has amended the GPDO to enshrine the NDSS within legislation. From 6 April 2021, new residential development undertaken through permitted development rights will be required to either have a GIA not less than 37 sqm or comply with the NDSS as published in 2015.

There has been a lot of criticism around the government’s continued use of permitted development rights to deliver housing. Whilst the requirement to comply with national space standards will hopefully result in better quality housing, other concerns over the use of permitted development rights are likely to remain especially given the government’s introduction of new rights to enable the conversion of most uses within Class E to residential.

Victoria Du Croz is a Partner and Sophie Smith is an Associate in the Planning team. Alexandra Treacy is a Trainee Solicitor currently sat in our Planning team.

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