Freeports: New permitted development rights

England and Wales

The Government has announced an extension of the permitted development rights (“PD rights”) available to sea ports in England, meaning increased flexibility and alignment between the rights of airports, rail ports and sea ports.

PD rights grant planning permission for certain specified types of development to be carried out without requiring a planning application, and can therefore simplify the development process. The extension of PD rights for sea ports is one of the numerous planning law reforms that were promised to Freeports in the Freeports Consultation (which we reported on here and here). The new PD rights for ports were announced as part of the Government’s wider package of “new freedoms” (including new rules for housing and the high street) and will come into force on 21 April 2021 through the Town and Country Planning (General Permitted Development etc) (England) (Amendment) Order 2021.

The extension of PD rights at ports is an important piece of the puzzle in terms of ensuring that Freeports are as successful as the Government has predicted. Aligning the PD rights available at the various different modes of port is the most basic first step in facilitating multi-modal Freeports. Prior to this amendment, the PD rights available to sea ports were more restrictive than those available to airports or rail ports: an inconsistency which needed to be remedied before multi-modal Freeports could operate effectively.

The Government has sought to match the flexibility that airports enjoy under Class F of the Town and Country Planning (General Permitted Development) Order 2015 (the “GPDO”) through an amendment to Class B. The amended Class B PD right allows dock, pier, harbour, water transport, canal or inland navigation undertakings (or their lessees or agents) to carry out development on operational land in connection with the provision of services and facilities (including the erection or alteration of an operational building). This same right was already available to airport operators or their agents under Class F. The undertaker must consult with the local planning authority before being able to rely on the PD right.

Interestingly, the amended PD right can be exercised by the statutory undertaker’s agent, widening the usual scope. In our previous article we identified a potential challenge in reliance on PD rights to provide the necessary flexibility at Freeports, in that they are often limited to statutory undertakers and operational land: relatively narrow concepts which can limit the broader applicability of PD rights. The extension of the scope to include an agent does not go particularly far in terms of increasing the applicability of the PD right, as it still requires a connection to the statutory undertaker, and the development must take place on operational land. This limitation may restrict the use of PD rights by new entrants to the Freeports market, or to additional land that does not fall within the definition of operational land. A local development order may be a far better tool in delivering development.

The amendment to PD rights at sea ports is a necessary but unambitious planning reform. This change alone will not be sufficient to achieve the streamlined, flexible planning process that the Government envisages. But, it’s not alone: we know that more planning reforms at Freeports have been promised or, at least, are open for consideration, including the various measures that we previously discussed such as zonal planning, further extensions of PD rights, and revisions of policy. This is not the end of planning reform at Freeports.