Latest News on the Planning System
It’s been, what, months since the last shake-up of the planning system. How on earth have ministers and civil servants been filling their time since last having a bash at CIL? For the most part they’ve been changing jobs. We’ve lost Bolesy and have a new minister of state for planning – Brandon Lewis (catchy nickname to follow) assisted by Penny Mordaunt and Kris Walker, the latter having special responsibility for pubs (nice work if you can get it). While bums on seats have been shifting there has also been a good deal of turmoil in the fraught world of planning policy and wizard ruses.
As a result there has now been published an important consultation paper which picks up on a lot of the temporary measures introduced last year, on a lot on ideas thrown into the pot in the autumn statement, Queen’s speech and budget and on a few crackpot notions that seemed like a good idea at the time.
The consultation runs to 26 September, and anyone who makes planning applications, or better still, employs Walsingham Planning to make them needs to be aware of the proposals. It’s a lengthy read, with a few laugh-out-loud jokes, but here is a brief summary and commentary which will hopefully allow a meaningful and timely response to the new proposals.
The proposals are set out below, in no particular order, except that used in the consultation paper. The consultation runs from 31 July to 26 September and takes the form of a question-and-answer session that can be completed online or by traditional means.
Following the list of these changes/proposals most likely to affect our clients, Walsingham Planning ventures some opinions and observations that might prompt discussion, comment (or fees).
USE CLASSES ORDER AND PERMITTED DEVELOPMENT ORDER
- Proposal A – A new permitted development right to allow the use of light industrial (B1C) buildings or storage/distribution buildings (B8) to be used for residential purposes, subject to a prior approval notice.
- Proposal B – New homes from sui generis uses, allowing the residential use of launderettes, amusement arcades, casinos and nightclubs (in use on Budget Day 2014), along with minor alterations to effect such changes.
- Proposal C – The temporary change, made for three years in 2013, allowing the conversion of offices (B1a) to residential (Class J) is to be made permanent, though still subject to the prior approval process, with current exemptions ceasing in May 2016.
- Proposal D – The permitted development rights to extend houses by 8 or 6 metres, instead of the longstanding 4 or 3 metres, introduced as a three-year experiment in 2013, is to be made permanent, still subject to the prior approval procedure.
- Proposal E – To promote activity in the high street it is proposed to “strengthen the retail offer” by incorporating into Use Class A1 (retail) most uses currently in Use Class A2 (financial and professional services), excluding the current government’s bêtes noires betting shops and payday loan shops (still A2) and precluding changes to A2 from other uses without planning permission.
- Proposal F – The current temporary measure which allows a two-year change of use from A1 (retail) to A3 (café/restaurant) is to be extended to include A2 uses and those sui generis uses cited in Proposal B, subject to a prior approval scheme and a size limit of 150 sq m, but without any indication that this would be for a temporary period only.
- Proposal G – To allow any A1, A2 or cited sui generis uses to change to D2 (leisure) use, subject to prior approval but excluding listed buildings or sites in conservation areas.
- Proposal H – to improve the capability of retail outlets to provide home delivery or click and collect facilities by allowing small curtilage buildings, bigger delivery doors and large mezzanine floors.
- Proposal I – new permitted development rights make the temporary use of land or buildings for film and TV locations easier.
- Proposal J – improved PD rights to allow the installation of photo-voltaic panels on commercial buildings, up to one megawatt, the current limit being fifty kilo watts (5% of the proposed level).
- Proposal K – the expansion of shops, offices, factories and warehouses, increased on a temporary basis in 2013, is to be made permanent, confirming A1/A2 extensions at 100 sq m,. B1a extensions at 100 sq m, B1c/B2/B8 new build at 200 sq m and extensions at 50%, with no completion deadline.
- Proposal L – facilities to make easier the replacement of plant and machinery at waste management premises.
- Proposal M – the extension of PD rights for sewerage undertakers.
Associated with these proposed changes, there would be couple of administrative tweaks:-
- Prohibiting the use of Article 4 Directions to remove PD rights after prior approval has been given.
- To made compensation payable when PD rights are withdrawn by Article 4 Directions and,
- To introduce a fee regime for prior approval of
a) changes of use (£80), b) change of use with physical changes (£172) or c) physical development alone (£80).
THE USE OF PLANNING CONDITIONS
The government is rightly “concerned that too many overly restrictive and unnecessary conditions are attached to planning permissions with no regard given to the additional costs and delays”. The consultation paper therefore seeks to address two main issues, identified as:-
- The imposition of too many conditions, and
- Delays in discharging conditions
There are four proposals on which comments are invited:-
- Proposal 1 – the introduction of a scheme whereby conditions are deemed to be discharged, with some exceptions, provided that after six weeks the applicants give the LPA two weeks’ notice of their intention to consider the consent to be deemed.
- Proposal 2 – to make the application fee refundable on discharge of conditions applications after 8 weeks instead of 12.
- Proposal 3 – to require that, for major applications, draft decision notices are shared and discussed with applicants.
- Proposal 4 – to make LPAs justify their use of conditions to be discharged by deadlines, e.g. pre-commencement, pre-occupation, etc., particular reference being made to landscaping.
- A reduction in the requirement for statutory consultations, especially English Heritage and the
- Alterations to procedures involving consultation with railway infrastructure managers, and
- Produce a consolidated Development Management Procedure Order.
Previous changes in this regard include making it a legal requirement for validation requirements to be “reasonable”, removing the Design and Access Statement requirement for non-major applications and allowing validation disputes to be dealt with by appeal.
The proposals to further “improve” this aspect of the application process relate to:-
THOUGHTS AND SUGGESTIONS
The government’s approach to the planning system and its inherent problems, as regular readers will know, is not to grasp the nettle but rather to do a little judicious pruning leaf by leaf, and the worrying thing about such gardening is that, when all is said and done, it is still a nettle. Without straying too much into Titchmarsh territory, it might well be time for the government to pull the thing up by the roots and plant something that does the job or perhaps leave us all in peace and accept that even some of the best gardens have the occasional nettle.
Before considering the proposals one-by-one, it is worth remembering that the concept of a prior approval procedure was not one which the government promoted or wanted when many of those changes were first proposed. It was prised out of them, somewhat reluctantly, as a means whereby the poorly received measures of office to resi conversions and large house extensions were made acceptable. Now the whole process seems to be a foundation to the planning structure. It has become the halfway house between development that requires permission and that which does not require it at all, a third tier of the planning process. In this regard it is a seemingly radical change to the system, albeit one that has come about by accident and against the initial wishes of those who now have it up there with sliced bread.
Given that the changes introduced in 2013 have been in place for barely a year, it might be considered premature to be assuming that they have worked, or even that they are working, but that explains why so much of the consultation seeks not only views but feedback as to the impact of the temporary changes. By the time the consultation is concluded, analysed (and ignored?), the government may well have moved onto tinker and tweak elsewhere.
It remains open to serious doubt whether the country’s housing crisis is to be resolved or even dented by making it easier to convert warehouses, factories, casinos and launderettes into living accommodation. There does not appear to be a great deal of evidence, if indeed there is any, to suggest that developers, landowners and prospective householders have hitherto been bemoaning the difficulty in making these properties available for housing, unless it was an episode of Grand Designs or Escape to the Industrial Estate that Walsingham Planning missed.
The change of use from offices to residential has probably promoted sufficient developer interest to warrant it being made a more permanent fixture in the planning system, even though its popularity still does not extend to most planning authorities. There are currently more than 600 potential houses within the planning appeal system because the LPAs’ unwillingness to go down the prior approval route without kicking and screaming. We can expect more of this behaviour, especially when those areas currently benefitting from the protection of the exemption process are exposed to the full thrust of Class J.
Before moving onto pastures new Nick (“if I’m still Planning Minister after the next election, shoot me”) Boles announced that there are thousands of Class J schemes in the pipeline, so the proposed change is likely to lead to widespread flooding, especially at £80 a pop for a prior approval notice, no affordable housing and no CIL.
Most people would probably have expected the government to accept that the eight metre extension was a horrible mistake – are governments allowed to say that? – and to call it a day. That it’s to be made permanent is therefore a surprise, though not perhaps to those of us whose gardens are big enough to take a flat-roofed excrescence bigger than most affordable homes. Illustration of the time honoured principle of ”if you have made a mistake in Government, never own up to it”.
Quite how a proposal to call banks, building societies and estate agencies shops can be promoted as a strengthening of the retail offer is a mystery. Planning authorities have, since the year dot, sought to protect the high street from these uses on the grounds that they undermine its viability and vitality. Now, apparently, all is forgiven and the blame for the demise of primary shopping frontages is placed squarely where it belongs, on Wonga-shops and bookies. Thank you, Mary Portas – we’re saved. Hands up if you think the high street will be improved by making it possible to convert an empty shop into another estate agency.
Walsingham Planning has fought many a hard battle to provide coffee shops and restaurants on the high street and there is still a lot of speculation as to whether the former are already A1 uses. The undoubted contributions that such uses make to the shopping experience does not necessarily justify a change which makes all A1 and A2 (bookies and payday loan shops) fair game for café and restaurant uses on a permanent basis. That said, when you’ve eaten your fill in the former shop, you can also go to the gym in another former shop to work off those calories, picking up your click and collect shopping from the 20 sq m (maximum) freebie extension at the back of the only shop that remains.
Thankfully, the burden on LPAs is at least to be relieved by the removal of those pesky applications for film location uses and they will still have the thrill of dealing with applications for leisure uses in military explosive storage areas.
Call me a cynic (please!) but isn’t it a “death by a thousand cuts” for the Use Classes Order, the Permitted Development Order and the High Street?
There can be little doubt that the use of planning conditions has grown like Topsy (who was Topsy?) over the last few years, and equally little doubt that, now that LPAs have eight weeks to discharge those unnecessary and unreasonable conditions, they are damned well going to take them. Although it has long been a requirement that conditions comply with six tests (necessary/relevant to planning/relevant to the development/enforceable/precise/jolly reasonable), and, although conditions should only be used as a means to prevent the refusal of an application, most conditions seem to come from what might be regarded as a standard Planners’ Guide on how to be obstructive, unhelpful, and request information which is either irrelevant, already provided or not needed for a planning decision at all as it is covered by other regulation. The system is long overdue a shake-up in this regard.
Anyone who might at some time make a planning application ought to be applauding the government’s objective to tighten up the planning condition process. They should also be responding to the consultation by saying that “the proposed changes don’t go far enough!”
Eight weeks is far too long to discharge a condition. Once a discharge of condition application is validated and therefore provides the required information, a reasonable period for a decision should not exceed four weeks. The concept of a deemed consent, again after a much shorter time, is a welcome one, for all conditions and not just a select few, but the prospect of developers having to put the LPA on two weeks’ notice of their intent to act on the presumption of a deemed consent is a nonsense. Take the fee, register the application, consult the body who thought the condition necessary and make a decision – all in four weeks – sorted. Deemed consent and £97 refunded if the LPA can’t do this.
LPAs do, indeed have a pre-occupation with pre-commencement conditions, and the Courts have already ruled that there are certain groups of conditions, notably landscaping, which have no business being so defined. A few enlightened LPAs have taken this to heart and time the discharge of conditions accordingly (“must approve the roof tiles before you put the roof on the building”) Most do not, with the predictable outcome identified in the consultation paper. Making LPAs justify the timings of conditions sounds like a step in the right direction, but so did the requirement that they explain how pro-active they’ve been on each decision notice and the planning system was not improved by that particular bit of bureaucracy. Some conditions have to be pre-commencement and it is surely clear what they are. Everything else, if it requires timetabling at all, has an obvious place in a development programme, like the roof or the landscaping and a proper six-tests condition should already identify what that place is. Any condition that is put in the wrong place is, by definition, unreasonable and in conflict with the NPPF. Grouping conditions in order of their place in a development programme would not be a bad start – well done, Birmingham City Council – and a far stricter discharge regime ought to follow.
The bane of most developers and consultants is the time allowed by case officers for consultations. How many applications and developments are delayed because, months after submission, the case officer has still not heard from someone on whose opinion he/she needs? The problem is not with the number of consultees but with the time allowed for their response. Consultation letters are usually computer-generated, and, to the applicant, their number is generally irrelevant. The process would be improved, not by making some consultations unnecessary but by having, on those consultation letters, a simple warning that a) if a reply is not received, say in three weeks, it will be assumed that the consultee has nothing to say, and b) any replies received after three weeks will be rejected. The appeal process has a timetable, strictly administered by the Inspectorate (even if it does not apply to them), so why not make sure that the application process runs more smoothly by having an equally strict timetable and by sticking to it?
This consultation paper is an important document and should not be ignored, even by those cynics such as yours truly who place no real faith in consultation exercises by central government.
The changes to the GPDO to promote housing in strange places can perhaps be glossed over for the tinkering that it is, but the proposed changes that affect the High Street warrant serious consideration and strong criticism. So too do the propositions regarding planning conditions, application processes and consultations, not because they don’t recognise the problems but because they don’t go far enough in dealing with them.
Right – off my high horse, time for an advert break.
If you feel strongly, one way or the other, about any of the issues raised in the consultation paper, or in this article, and would like help from Walsingham Planning in making your views known, give us a call. We are very reasonable, in all senses of the word.