COVID-19 and the new temporary permitted development rights for the health sector

In response to COVID-19 and the ever increasing pressures and demands on our health sector, a new Town and Country Planning (General Permitted Development) (Coronavirus) (England) (Amendment) Order 2020 (the Order) came into force on 9 April 2020.

The Order permits development to properties in England by or on behalf of local authorities or certain health service bodies (for example, the Care Quality Commission, clinical commissioning groups  and NHS trusts, among others) without the need to obtain express planning permission for the purposes of:

1. preventing an emergency;
2. reducing, controlling or mitigating the effects of an emergency; or
3. taking other action in connection with an emergency.

These rights are only temporary in nature; any development that is carried out must cease on or before 31 December 2020 and within 12 months of cessation the land must be restored to the condition it was in prior to development (or such condition as is agreed in writing with the local planning authority).

So what is an “emergency” and what developments can be carried out?

An emergency is an event or situation which;

(a) threatens serious damage to human welfare in a place in the United Kingdom; and

(b) involves, causes or may cause a wide range of effects, such as loss of human life, human illness or injury, homelessness, damage to property, disruption of a supply of money, food, water, energy or fuel, disruption of a system of communication, disruption of facilities for transport or disruption of services relating to health.

The scope for development seems wide; development is permitted on land owned, leased, occupied or maintained by a local authority or health service body. This could be vital in quickly making use of premises not currently used due to the lockdown restrictions for some much needed emergency facilities for the NHS. However, development is not permitted over certain height restrictions (dependant on whether the development is to an existing building or involves the construction of a new building), where any part of the land forms part of a site of special scientific interest, a military explosive storage site or a scheduled monument, or within 5 metres of the boundary to a residential property. Additionally, development is not permitted where moveable structures, works, plant or machinery that are temporarily required for the development would be located within 10 metres of the boundary to a residential property or within 5 metres of any boundary of the land.  This could, therefore, prevent the development of both new sites and existing surgeries, health care centres or hospitals that fall within residential areas.

What steps should local authorities and health service bodies take if they want to exercise these rights?

Any local authority or health service body seeking to carry out such development should remember that the rights do not negate the need to obtain other consents to the development, if applicable.

1. Where the land in question is leased, the lease should be checked to see if landlord’s consent is required to the proposed development, both in respect of the proposed use as well as any alterations that are required. It is not uncommon for structural alterations to be completely prohibited under commercial leases. To go ahead with the development without the landlord’s formal consent might result in the local authority or health service body being in breach of the terms of its lease.  

2. Existing planning restrictions for the land in question should be checked. The Order does not usurp any existing planning restrictions or conditions so if there are any that expressly prohibit certain uses or development works, for example, then exercising the permitted development rights under the Order could breach these restrictions.

3. Whilst the Order removes the need to obtain express planning permission, the local authority must still be made aware of the development. Therefore, the developer (unless it is the local planning authority) must, as soon as practicable after commencing development, notify the local planning authority of the development. 

With a total of seven confirmed NHS Nightingale hospitals due to be operational in a matter of weeks, the Order no doubt provides a welcome temporary change to the planning regime in England and is fortunately one less hurdle for local authorities and health service bodies when putting in place emergency facilities such as field hospitals, temporary accommodation for NHS staff and testing facilities as the UK continues to deal with the pandemic.