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COVID-19 UK – Emergency permitted development right switched on

As converted conference centres and arenas open their doors as temporary NHS Nightingale Hospitals, the latest tranche of urgent planning measures designed to respond to the spread of COVID—19 came into force at 10.00 this morning (Thursday 9 April 2020).  The measures provide planning clarity for those wishing to make available to the NHS and public sector facilities such as empty car parks, unoccupied hotel rooms or vacant conferencing facilities, and set out the basis on which they can do so.

The Town and Country Planning (General Permitted Development) (Coronavirus) (England) (Amendment) Order 2020 (the “Order”) introduces a new permitted development right to allow the emergency development by local authorities and health service bodies of facilities required in responding to the spread of COVID-19 without having to submit a planning application.

What does the right allow?

The right permits development (including physical works and changes of use) by or on behalf of a local authority or health service body on land owned, leased, occupied or maintained by it for the purposes of:

– preventing an emergency;

– reducing, controlling or mitigating the effects of an emergency; or

– taking other action in connection with an emergency.

For the purposes of the Order, an emergency means an event or situation – such as the current COVID-19 pandemic – which threatens serious damage to human welfare in a place in the United Kingdom.

The permitted development right is broad, recognising the unprecedented circumstances, the need for flexibility and sensibly acknowledging that the detail of any development required won’t necessarily be known in advance.  The right facilitates development including the change of use of existing premises, the erection of temporary buildings, structures, plant and machinery, vehicle parking and storage space.

The Explanatory Memorandum to the Order envisages the right enabling “surge sites” to be brought forward for use as temporary hospitals, health facilities, testing centres, coroner facilities, mortuaries, accommodation and storage and distribution uses including for community food hubs.

What isn’t allowed?

The right does not allow unfettered development, and the Order sets out the parameters within which any permitted development must be carried out – this includes excluding the right in respect of certain types of land, imposing some limits on the nature of physical works permitted, and protecting buffer zones between development and adjoining land (in particular, dwelling houses).

It is important to note that the right only deals with planning consent and does not grant any other consents or permits – such as listed building consent, advertisement consent or environmental permits – which might be required to bring the development into use.

Is the right subject to any conditions?

Development under the right is subject to the following three conditions:

– where the developer is not the local planning authority it must, as soon as practicable after commencing development, notify the planning authority of the development

– the right is temporary – any use of land pursuant to the right must cease on or before 31 December 2020 (meaning that planning permission will be required for the use to continue beyond that date); and

– any building, structures and plant must be removed from the land and the land restored to its former condition within 12 months of the use ceasing.

Who can benefit from the right, and is there scope for private sector involvement?

The permitted development right is conferred on local authorities and health service bodies.  Any development must take place on land owned, leased, occupied or maintained by the authority or body.

Although the Order envisages the local authority or health service body taking control of the development itself, the authority or body doesn’t have to own the land on which the development is to take place.

This creates an opportunity for the private sector.  Land under private sector ownership – such as empty retail park car parks, unoccupied hotel rooms or vacant conferencing facilities – could (subject to any third party consents required) be released to local authorities or health service bodies under short-term leases or licences to occupy.  The Order sets the stage for more vital public-private collaboration to build on the impressive NHS Nightingale Hospital efforts to date.

It is important to ensure that all the requirements of the Order are complied with, otherwise any development purportedly carried out pursuant to the right could be in breach of planning control.  Whilst enforcement action is unlikely in the present circumstances, any breach could result in problems when normality resumes.  To safeguard value and the on-going operation of assets, therefore, it is critical to ensure compliance.

Equally, the procurement by the local authority or health service body of works, services or supplies in relation to any development remains subject to the public procurement rules and the Cabinet Office has published an Information Note (PPN 01/20, March 2020) with specific guidance in response to COVID-19.  Our procurement team can advise you on these issues if you need further information.

At a time of national emergency, it is positive to see the planning system – so often criticised as a foot firmly on the brake of development – responding quickly, flexibly and pragmatically to the urgent need to ramp up surge sites and temporary facilities to deal with the COVID-19 pandemic.

Please get in touch with your Hogan Lovells real estate contact to discuss this further.  Please contact Ciara Kennedy-Loest and Kate Rees in relation to procurement issues.

 

Our new interactive tracker is a single point of reference for you on COVID-19 real estate specific matters across our global practice. It lets you view relevant guidance and changes to legislation for each country and it also allows you to compare information across different jurisdictions:

COVID-19 Global Real Estate Interactive Map:
Government Response Tracker
https://www.engage.hoganlovells.com/knowledgeservices/covid-19-real-estate-developments

 

For material that will help you run your business, as well as details of our business continuity planning, our COVID-19 Topic Centre houses all  of our resources on the topic – from crisis leadership to supply chain.

Key real estate contacts

Daniel Norris, Global Head of Real Estate

Mathew Ditchburn, Head of Real Estate Disputes

Hannah Quarterman, Head of Real Estate Planning