New planning legislative changes and guidance

Biodiversity net gain

The Environment Act 2021 makes a 10% biodiversity net gain (BNG) mandatory for all but exempt and small sites from 12 February 2024 and for small sites from 2 April 2024.  From these dates, all qualifying planning applications will need to include the minimum national information (set out in Article 7 of the Town and Country Planning Act (Development Management Procedure) (England) Order 2015) to be valid.  

A general biodiversity gain condition of planning permission will be used to secure the biodiversity gain objective which is to deliver at least a 10% increase in relation to the pre-development biodiversity value of the development site. 

The general biodiversity gain condition is a pre-commencement condition. Once planning permission has been granted, a biodiversity gain plan (BGP) must be submitted and approved by the planning authority before the development can commence. The biodiversity gain plan must show how the development will achieve biodiversity net gain using on-site enhancement and/or offsite habitats and/or statutory biodiversity credits.

Biodiversity Net gain must be measured using the statutory biodiversity metric or, for some small sites, the small sites statutory biodiversity metric can be used. The metric is a habitat-based approach to determining a proxy biodiversity value and is a means of assessing changes in biodiversity value (losses or gains) brought about by development or changes in land management. 

Significant on-site enhancement and all off-site habitats must be secured for at least 30 years via conditions, planning obligations or conservation covenants. As a last resort, where developers are unable to use on-site or off-site units to deliver biodiversity net gain (BNG), they can buy statutory biodiversity credits.  

Biodiversity net gain, however, is not just a post-permission matter. As well as the minimum national information requirements the developer will need to provide sufficient information to demonstrate that the general biodiversity gain condition is capable of being discharged successfully through the imposition of conditions and agreement of section 106 planning obligations to secure significant onsite biodiversity gains and registered offsite biodiversity gains. 

Where significant onsite enhancements are proposed, a habitat management and monitoring plan will be required to ensure the habitats are maintained and monitored over 30 years. 

The BNG requirement does not change the existing legal protections for important habitats and wildlife species. It maintains the mitigation hierarchy of avoid impacts first, then mitigate and only compensate as a last resort. 

For more information see the collection of guidance and links at the Biodiversity Net Gain collection. 

Modification of planning conditions relating to construction working hours

The aim of the new temporary fast track deemed consent route under Section 74B of the Town and Country Planning Act 1990 is to enable urgent changes to construction working hours to support safe construction working in line with the government’s latest social distancing guidance on construction and other outdoor work. For many construction sites, implementation of this guidance will require changes to working practices, including staggered starts and finishes, requiring different hours of operation to those which are currently permitted for the site through planning conditions.

Section 74B of the Town and Country Planning Act 1990 provides a temporary, fast track deemed consent route for developers to apply to local planning authorities to vary existing conditions, or the details submitted under a condition, that limit construction site working hours. Local authorities have 14 calendar days to consider such applications.

If an application is approved, this will temporarily amend planning restrictions on construction working hours until 1 April 2021, unless either another earlier date has been requested by the applicant or is decided upon by the local planning authority, with the agreement of the applicant. Where the planning authority is considering a different end date to that in the application, it is recommended that the developer and planning authority respond promptly to one another to reach an agreement prior to the 14 day determination deadline.

If the local planning authority does not determine the application within 14 days (excluding public holidays), the revised working hours are deemed to have been consented to and construction can take place in accordance with these new hours.

Further information can be found by visiting GOV.UK Construction Working Hours: guidance

To submit a request to West Suffolk Council to modify construction working hours, please complete

• Modification of planning conditions relating to construction working hours form (Word)
• Modification of planning conditions relating to construction working hours form (PDF)

and email it to: planning.help@westsuffolk.gov.uk

Extensions to time limits

Part 3 of The Business and Planning Act 2020 temporarily modifies the Town and Country Planning Act 1990 and the Planning (Listed Buildings and Conservation Areas) Act 1990 to enable certain planning permissions and listed building consents in England which have lapsed or are due to lapse during 2020 to be extended.

This is in recognition of the effect coronavirus has had on the planning system and the construction sector and in particular, the delays it has caused to the commencement of new development. This extension will allow the commencement of the planning permissions and listed building consents without the need for a new application.

Which planning permissions are extended

Under section 93A of the Town and Country Planning Act 1990, unimplemented planning permissions (both outline and reserved matters application) with time limits for implementation which have lapsed or are due to lapse between 19 August 2020 (when the provisions came into force) and 31 December 2020 are extended to 1 May 2021. This happens automatically, with no requirement to obtain Additional Environmental Approval.

In addition, unimplemented planning permissions with time limits for implementation which lapsed between 23 March and 18 August 2020 (inclusive) are also restored and the time limit for implementation extended to 1 May 2021, subject to ‘Additional Environmental Approval’ (AEA) being granted. Further details of the Additional Environmental Approval process are set out below.

All listed building consents with a time limit for implementation between 23 March 2020 and 31 December 2020 will be extended to 1 May 2021. Listed building consents will not be subject to a requirement to obtain Additional Environmental Approval.

Additional Environmental Approval process

There is no fee payable for the making of such an application.

Applications for Additional Environmental Approval should be emailed to planning.technical@westsuffolk.gov.uk 

There is no prescribed form for such applications, but they must be made in writing and submitted electronically to West Suffolk Council quoting the application reference number and/or application site address. Once received, the applicant will receive formal confirmation of receipt with details of the appointed case officer.

The application must specify the date which it has been sent and provide sufficient information to allow West Suffolk Council:

• to identify the relevant planning permission and condition in respect of which it is made, and
• to determine whether Additional Environmental Approval should be granted

Applicants should provide details of:

• the planning permission to which the application relates
• the condition (s) which set out the time limit (s) for implementation
• any condition (s) or other agreements which relate to environmental mitigation or enhancement measures
• whether the original permission was subject to an Environmental Impact Assessment and/or a Habitats Regulation Assessment, or screening for either type of assessment.

If the original planning permission was subject to one or both of these assessments, or screening for either, applicants should also provide details of:

• the original assessment (s) or screening (s) and a summary of the key findings
• information on any mitigation measures secured to address environmental effects, and the progress toward delivering these measures
• an environmental report containing a reasoned explanation of why in the applicant’s view there have been no changes to environmental circumstances which would make the original screening or assessment out of date. For example, it may be appropriate to include:
• an analysis of any further committed development proposals which may affect the assessment of cumulative effects, and why in the applicant’s view this does not make the original assessment out of date
• a description of any changes to the factual circumstances of the proposed development, such as a new environmental designation, new environmental information or other changes of circumstance, and an analysis of why in the applicant’s view this does not make the original assessment out of date
• any other relevant information which would in the applicant’s view support the case that the previous screenings or assessments remain up to date.

If the original planning permission was granted without the need for an Environmental Impact Assessment or a Habitats Regulations Assessment, applicants should provide a brief explanation of why they consider it remains the case that neither of these assessments would be needed if an application for planning permission was being made now.

If the original planning permission was granted without the need for screening for an Environmental Impact Assessment or a Habitats Regulations Assessment, but an applicant thinks that screening might be needed if an application for planning permission was being made now and that the screening would show that no substantive assessment was required, then the applicant should provide sufficient information to enable the authority to undertake screening within the 28-day period, although this timescale can be agreed mutually through the use of an Extension of Time.

If a decision is not reached within the 28-day period, or as may be extended through a mutually agreed extension of time, the Additional Environmental Assessment is deemed to be granted. If the local planning authority is in doubt and the matters cannot be properly considered within the appropriate timescale the application will be refused so that there is no deemed grant of approval.

The responsibility lies with applicants to ensure that all material which is likely to be relevant is included within the application for Additional Environmental Approval. All applicants are encouraged to consider using the paid for pre-application service at the Council to address any specific or complex issues prior to submitting a formal application.

Further substantive information should not be submitted during the determination period. The local planning authority is entitled to sufficient information at the start of the 28-day period. If during the determination period it becomes apparent that the local planning authority cannot determine whether the EIA and Habitats requirements are met without further substantive information from the applicant, the authority is able to refuse Additional Environmental Approval. An applicant may then make a new application for Additional Environmental Approval containing further information so that the authority can deal with it in a fresh 28-day period.

The applicant is entitled to appeal against a refusal, but it is important to note that as there is deemed consent in place, there is no right of appeal against non-determination.

The legislation does not require local planning authorities to undertake any specific consultation, or undertake any publicity, although we may seek to engage with any party with appropriate expertise to enable a decision to be made. The formal decision will be recorded on the council’s website.

More guidance can be found at: GOV.UK Extension of certain planning permissions: guidance

Changes to the uses classes order

Changes to the Use Classes Order came into force from 1 September 2020.

The Government has announced major changes to the operation of the Town and Country Planning (Use Classes) Order 1987. More information: The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020

Prior approval procedure for new dwellings

Part 20 Class AA – New dwellinghouses on detached buildings in commercial or mixed use

The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 came into force on 31 August 2020.

Class AA permits development consisting of works for the construction of up to two additional storeys of new dwellinghouses immediately above the topmost storey on a detached building, together with any or all:

• engineering operations reasonably necessary to construct the additional storeys and new dwellinghouses
• works for the replacement of existing plant or installation of additional plant on the roof of the extended building reasonably necessary to service the new dwellinghouses
• works for the construction of appropriate and safe access to and egress from the new dwellinghouses and existing premises in the building, including means of escape from fire, via additional external doors or external staircases
• works for the construction of storage, waste or other ancillary facilities reasonably necessary to support the new dwellinghouses.

Part 20 Class AB – New dwellinghouses on terrace buildings in commercial or mixed use

The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 came into force on 31 August 2020.

Class AB permits development consisting of works for the construction of new dwellinghouses immediately above the topmost storey on a terrace building, where that development comprises:

a. up to two additional storeys, in the case of an existing building consisting of two or more storeys
b. one additional storey, in the case of an existing building consisting of one storey

together with any or all:

• engineering operations reasonably necessary to construct the additional storeys and new dwellinghouses
• works for the replacement of existing plant or installation of additional plant on the roof of the extended building reasonably necessary to service the new dwellinghouses
• works for the construction of appropriate and safe access to and egress from the new dwellinghouses and existing premises in the building,including means of escape from fire, via additional external doors or external staircases
• works for the construction of storage, waste or other ancillary facilities reasonably necessary to support the new dwellinghouses.

Part 20 Class AC – New dwellinghouses on terrace buildings in use as dwellinghouses

The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 came into force on 31 August 2020.

Class AC is introduced and relates to new dwellinghouses on terrace buildings in use as dwellinghouses.
Class AC permits development consisting of works for the construction of new dwellinghouses immediately above the topmost storey on a terrace building in use as a single dwellinghouse within the meaning of Class C3, where that development comprises:

c. up to two additional storeys, in the case of an existing dwellinghouse consisting of two or more storeys;
d. one additional storey, in the case of an existing dwellinghouse consisting of one storey

together with any or all:

• engineering operations reasonably necessary to construct the additional storeys and new dwellinghouses
• works for the construction of appropriate and safe access to and egress from the new dwellinghouses and existing premises in the building,including means of escape from fire, via additional external doors or external staircases
• works for the construction of storage, waste or other ancillary facilities reasonably necessary to support the new dwellinghouses. Part 20 Class AD – New dwellinghouses on detached buildings in use as dwellinghouses.

Part 20 Class AD – New dwellinghouses on detached buildings in use as dwellinghouses

The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 came into force on 31 August 2020.

Class AD is introduced and relates to new dwellinghouses on detached buildings in use as dwellinghouses.

Class AD permits development consisting of works for the construction of new dwellinghouses immediately above the topmost storey on a detached building, where that development comprises:

e. up to two additional storeys, in the case of an existing dwellinghouse consisting of two or more storeys
f. one additional storey, in the case of an existing dwellinghouse consisting of one storey

together with any or all:

• engineering operations reasonably necessary to construct the additional storeys and new dwellinghouses
• works for the construction of appropriate and safe access to and egress from the new dwellinghouses and existing premises in the building, including means of escape from fire, via additional external doors or external staircases
• works for the construction of storage, waste or other ancillary facilities reasonably necessary to support the new dwellinghouses.

Part 20 Class ZA – Demolition of buildings and construction of new dwellinghouses in their place

The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 came into force on 31 August 2020.

Class ZA is introduced and relates to the Demolition of buildings and construction of new dwellinghouses in their place.
The building to be demolished must be either:

• a single purpose-built detached block of flats, or
• any other single detached building comprising premises established for office use falling within Class B1(a), for research and development falling within Class B1(b) or for an industrial process falling within Class B1(c) (in relation to the 1987 Use Classes Order)
• or any combination of the above.

The building must have a footprint of 1,000 square metres or less, have been in existence on 12 March 2020, constructed prior to 31 December 1989 and must have been vacant for a period of at least 6 months immediately prior to the date of the application for prior approval (see below).

Prior approval procedure for the enlargement of a dwellinghouse by construction of additional storeys

Part 1 Class AA – Enlargement of a dwellinghouse by construction of additional storeys

The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 came into force on 31 August 2020.

Class AA is introduced and relates to the enlargement of a dwellinghouse by construction of additional storeys. Class AA permits the enlargement of a dwellinghouse consisting of:

a. up to two additional storeys, where the existing dwellinghouse consists of two or more storeys, or
b. one additional storey, where the existing dwellinghouse consists of one storey

immediately above the topmost storey of the dwellinghouse, together with any engineering operations reasonably necessary for the purpose of that construction.

Under enforcement and guidance in relation to holiday parks caravan parks and campsites:

The Government recognises that sites may wish to extend their seasons in an attempt to recover financially from the COVID-19 business disruption. In some cases this will be restricted by planning conditions. The council has been reminded by Government that planning enforcement is a discretionary activity, and local planning authorities should not seek to undertake enforcement action which would unnecessarily restrict the ability of holiday parks, caravan parks and campsites to extend their open season. Where a business formally applies for planning permission to extend their season then the local planning authority should prioritise those applications.

The full ministerial statement can be found at: GOV. UK Planning update on cultural venues and holiday parks

Permitted development rights to support 5G and extend mobile coverage

On 22 July the Government published its response on its consultation into proposed planning reforms to support the deployment of 5G and extend mobile coverage. The Government confirmed its intention to take forward the in-principle proposals consulted on, subject to a technical consultation, to enable:

• the deployment of taller and wider masts
• building-based masts located nearer to highways, and
• faster deployment of radio equipment housing, such as equipment cabinets.

The Government has stated it will work with local planning authorities as well as the mobile industry to develop a technical consultation on the detail of the proposals, including the appropriate environmental protections and other safeguards to mitigate the impact of new mobile Infrastructure.

More information: GOV.UK - Proposed reforms to permitted development rights to support the deployment of 5G and extend mobile coverage

Pre-application advice

West Suffolk Council operates a paid Pre-application advice service to anyone whom wishes to engage with development in its administrative area. This service should be used for any queries relating to the above.