England follows Wales: permitted development for the provision of emergency facilities in the fight against COVID-19

Ten days after the Welsh Government introduced permitted development (“PD“) changes to establish emergency facilities quickly (‘the Welsh Order’), England has followed suit.

Emergency facilities – the order

As of 10 am today, the Town and Country Planning (General Permitted Development) (Coronavirus) (England) (Amendment) Order 2020 (‘the English Order‘) took effect.

The English Order introduces a new temporary permitted development right until 31 December 2020 for “Emergency development by a local authority or health service body“, by inserting Part 12A, Class A, into the Town and Country Planning (General Permitted Development) (England) Order 2015 (‘the 2015 Order’).

The similarities and differences to the position in Wales

Health service bodies

The English Order inserts the new right into Part 12 (development by local authorities) of the 2015 Order, reflecting the Welsh Order.

However, the new Part 12A extends the benefit of the PD right to “health service bodies“, which are widely yet quite specifically defined under 14 heads.

These include, among others, the National Health Service Commissioning Board, the CQC, clinical commissioning groups, Health Education England, Special Health Authorities, an NHS trust and an NHS Foundation Trust. Their inclusion gives health service bodies greater autonomy to make decisions, plan for and deliver, quickly, emergency facilities.

However, as they are not regarded as a “local authority” the condition remains, similar to the Welsh Order that notification must be given to the local planning authority “as soon as practicable” although the inclusion of the words “after commencing development” in the English Order more specifically acknowledges that notice can be given retrospectively.

Emergency events

The definition of “emergency” mirrors the wide definition used in the Welsh Order as does the definition of what constitutes an “event or situation that threatens serious damage to human welfare“.

Time periods for emergency facilities

A condition of the English Order is that use of the land must “cease on or before 31st December 2020“. This may reflect a rosier view in England that this crisis will be under control by then.

This is in contrast to the Welsh Order which requires cessation of the use and the removal of buildings “on or before the expiry of the period of twelve months beginning with the date on which the development began“. It is therefore clear that the Welsh Order can be relied upon into 2021.

Any extension required for the English Order to stay in effect will therefore require a further statutory amendment.

The English Order carries forward the 12 month reinstatement period specified in the Welsh Order, requiring the land to be restored to its previous state, thereby reflecting the need to ensure converted sites are clean and safe for the reinstated previous use to recommence.

Limitations

A notable distinction between the two orders is the inclusion of limitations in the English Order as opposed to the complete absence of any in the Welsh Order.

The English Order does not permit emergency facilities development if:

• any part of the land forms part of a military explosive storage area or site of special scientific interest;
• the land is or contains a scheduled monument; or
• the development is within five metres of any boundary of the curtilage of a dwellinghouse.

There are also imposed restrictions on the height of any new/altered building.

Regardless of how these differences play out, what is clear is that the English Order is a welcome amendment to enable the planning system to meet the need for emergency development during this crisis.