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New Midfielder for Planning United FC – but will the tinkering ever stop?

INTRODUCTION

It’s been months since the last shake-up of the planning system. How on earth have ministers been filling their time since last having a bash at it? For the most part they’ve been changing jobs in the departmental transfer window. We’ve lost Bolesy and have a new Minister for Planning – Brandon Lewis. While bums on seats have been shifting, there has also been a good deal of turmoil in the fraught world of planning tactics and strategy, to get Planning United FC working as the Premier League outfit that it should be.

DCLG published an important consultation paper which picked up on a lot of the 2013’s temporary measures, on a lot of ideas thrown up by the autumn statement, Queen’s speech and budget and on some crackpot notions that seemed like a good idea at the time.

The consultation period has ended, but 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 few laugh-out-loud jokes, but here is a brief summary and commentary which will hopefully allow a meaningful and timely understanding of the new proposals if, and when, they are formally adopted.

THE PROPOSALS

The proposals are set out below, in no particular order.

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 (and 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 (C3) is to be made permanent, though still subject to the prior approval process, with current exemptions ceasing in May 2016 (GPDO – Class J).
  • 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, the retail offer will be strengthened by incorporating into Use Class A1 (retail) most uses currently in Use Class A2 (financial / professional services), excluding the 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 prior approval and a size limit (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 PD 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 kilowatts (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 administrative tweaks:-

  • Prohibiting the use of Article 4 Directions to remove PD rights once prior approval is given.
  • Making compensation payable when PD rights are withdrawn by Article 4 Directions.
  • Introducing 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 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:-

  • 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, some time, maybe, never.

PLANNING APPLICATIONS

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:-

  • A reduction in the requirement for statutory consultations, especially English Heritage
  • Alterations to procedures involving consultation with railway infrastructure managers, and
  • Production of a consolidated Development Management Procedure Order.

PRIOR APPROVAL

Prior approval is a relatively new tier in the Planning United FC, slotting in between the strike force of permitted development and the defensive line, development. As the new boy in the team, perhaps a reminder of his CV is warranted. Any judgement as to whether planning permission is needed starts with the definition of development in S55 of the 1990 Act. While there are a number of woolly definitions (when is a change to the external appearance a material one?) which allow LPAs to err on the side of development, S55 defines the two outer limits. In between, at the attacking end of our diamond midfield, is permitted development, not exempt under S55 but nonetheless allowed by the General Permitted Development Order 1995 (as amended umpteen times). The new boy slots into the centre of the midfield. He is permitted development, but with the proviso that a) you have to tell the LPA that he is, and b) under certain circumstances, the LPA can tell you that he’s not. Those circumstances generally relate to transport or flooding issues, but, in the residential case (Proposal D), it involves the LPA in consulting with direct neighbours, who, if they object, can make a planning application necessary. As noted above, there will be a fee involved, and the timescale is generally five weeks, with appeal possibilities.

Proposal C (officers to resi) has been the most controversial in its trial period, with LPAs using prior approval rejections and Article 4 Directions (a local order removing permitted development rights) as a means of forestalling PD changes of use. Use of this controversial defensive midfielder has now been upheld by the Courts, although, once prior approval is conceded, the new changes, if confirmed, will take away this extra line of LPA defence.

THOUGHTS AND SUGGESTIONS

The government’s usual approach to poor performances by Planning United FC is not to grasp the nettle but rather to do a little judicious pruning leaf by leaf, although, 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.

Before considering the proposals one-by-one, it is worth remembering that Prior Approval was not a player which the government wanted in the team when he became available. His introduction into the team was forced on 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 team seems to revolve around this midfield dynamo. He has become the halfway house between the defence that all development that requires permission and the attacking line where none does. 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 the Director of Football at the DCLG.

Given that the changes introduced in 2013 have been part of the team for barely eighteen months, the assumption that they deserve regular first team play may be premature, and results have not been conclusive. By the time the consultation is analysed, the government may well have moved on to tinker and tweak elsewhere (weren’t they TellyTubbies?)

THE PROPOSALS

It remains open to serious doubt whether the country’s housing crisis is to be addressed 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, maybe none at all, 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 “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 player in the team’s midfield, even though its popularity still does not extend to all spectators. There are more than 600 potential houses within the planning appeal system because of the LPAs’ unwillingness to have prior approval in the team without kicking and screaming. We can expect more of this behaviour, especially when those few areas currently protected by the exemption process are exposed to the full thrust of Class J. The Courts are likely to be busy, as Class J seems as popular with developers as it is unpopular with LPAs.

Before moving onto a different team, 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 confirming and extending Class J, without exemptions, especially at £80 a pop for a prior approval notice, no affordable housing and no CIL, will only increase this.

The loss of job-generating potential, in boroughs with housing land to meet their targets, is a serious one, sufficient to warrant legal challenges and other ruses. As serious for LPAs is the fact that the change of use of lawfully occupied (six months in last thirty six) offices to residential may not attract CIL and, with no S106 Agreement, no commitment to affordable housing. The extent to which office, factory and warehouse conversions, perhaps in less salubrious locations, will generate affordable housing as a default remains to be seen, but, it seems unlikely, looking at wharfside development on the Thames.

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 people whose gardens are big enough to take a flat-roofed horror bigger than most affordable homes. Most worrying in this part of the field is the six metre extension on terraced houses, often HMOs, which have little enough garden to start with and which, with PD roof enlargements, can become monsters (subject to prior approval, of course). If you’ve made a cock-up, never own up to it. Maybe it will be forgotten or, if not, blamed on a previous government.

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. Hands up if you think the high street will be improved by making it possible to convert a temporarily empty shop into another estate agency.

There are those (not at Walsingham Planning) who might dare to suggest that there are too many coffee shops and restaurants and there is, of course, 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 need to be enhanced by 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 at the back of the only shop that remains. The High Street is in safe hands (not).

Thankfully, the burden on LPAs is 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. There can be little doubt that the use of planning conditions has “Grown like Topsy (definitely a TellyTubby), and equally little doubt that, now that LPAs have eight weeks to discharge conditions, they are usually 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; reasonable), many are applied by rote, with little justification. If an LPA’s condition is necessary, officers should at least deal with it as a matter of urgency.

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 saying that “the proposed changes don’t go far enough!”

Eight weeks is far too long to discharge a condition. Four weeks should suffice. Deemed consent, after a much shorter time, would be welcome, for all conditions, 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 which 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. Some LPAs already time the discharge of conditions accordingly (“must approve the tiles before the roof goes on”) Most do not, making is a pre-commencement requirement. Making LPAs justify the timings of conditions is a positive step Some conditions have to be pre-commencement and it is surely clear what they are. Everything else, if it requires time-tabling 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.

The bane of most developers and consultants is the time allowed by case officers for consultations. Developments are delayed because, months later, the officer has still not heard from someone whose opinion he/she needs? The problem is not with the number of consultees but with the time allowed for their response. The number of consultation letters is generally irrelevant. The process would be improved, not by making consultations unnecessary but by using, a simple warning that a) if a reply is not received 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, so why not make sure that the application process runs more smoothly by having a strictly enforced timetable?

CONCLUSIONS

This consultation paper should not be ignored.

Apart from offices, the changes to the GPDO to promote housing in strange places can perhaps be glossed over for the tinkering that it is, but the 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.

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 sure that you understand and make the most of the opportunities that it will offer, give us a call. We are very reasonable, in all senses of the word.

Mark Thackeray
Principal Consultant

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