Planning matters

The Communities Secretary, Rt Hon Robert Jenrick MP, has issued a Written Ministerial Statement (WMS) confirming changes to the policy on Article 4 Directions in paragraph 53 of the National Planning Policy Framework (NPPF), following a consultation held at the start of 2020. The consultation also covered a number of other proposals the Government has yet to respond to (see our previous blog for more detail on these).

The changes will be included in a revised NPPF expected later this year, but have been announced now “so that local authorities and communities can take it into account from today when they consider bringing in any new Article 4 directions”.

Article 4 directions allow a local planning authority to withdraw a specified permitted development right within a defined area. With the Government having introduced a number of new permitted development rights over the past year, primarily intended to deliver new homes and make more efficient use of existing sites in and around town centres and high streets, the changes to national policy seek to limit the use of Article 4 Directions that withdraw permit development rights that permit new homes.

The Minister’s Statement confirms the new wording of the NPPF will be as follows.

• where they relate to change from non-residential use to residential use, be limited to situations where an Article 4 direction is necessary to avoid wholly unacceptable adverse impacts (this could include the loss of the essential core of a primary shopping area which would seriously undermine its vitality and viability, but would be very unlikely to extend to the whole of a town centre)
  
  
• in other cases, be limited to situations where an Article 4 direction is necessary to protect local amenity or the well-being of the area (this could include the use of Article 4 directions to require planning permission for the demolition of local facilities)
  
  
• in all cases, be based on robust evidence, and apply to the smallest geographical area possible.”

The text for paragraph 53 of the framework previously read:

“The use of Article 4 directions to remove national permitted development rights should be limited to situations where this is necessary to protect local amenity or the well-being of the area (this could include the use of Article 4 directions to require planning permission for the demolition of local facilities). Similarly, planning conditions should not be used to restrict national permitted development rights unless there is clear justification to do so. .”

The WMS from the Minister says that the new wording will enable the measures to be used in a highly targeted way to protect the thriving core of historic high street areas, while ensuring they do not “unnecessarily restrict the ability to deliver much needed housing through national permitted development rights”. While there is nothing within the policy which limits the application of Article 4 Directions to ‘historic areas’ only, it seems likely that the presence of a conservation area or listed buildings may help justify a council’s decision where it intends to designate one, given that the WMS itself is also national policy.             

The changes will likely make it more difficult for councils to implement Article 4 directions for larger areas of land within town centres, for example. This may support the Government with its aims of making more effective use of land in urban and rural areas. The new policy also applies to Class M (take-away, betting shop, pay day loan shop or launderette to residential), Class P (storage to residential) and Class Q (agricultural to residential).

The WMS is clear that the policy on limiting Article 4 directions relating to change of use to residential does not apply to change of use between houses of multiple occupation and dwelling houses.

In either instance, the area to be protected will need to be tightly defined and justified by “robust evidence”.

Within the Statement, the Minister also said:

“Councils should recognise the value to housing supply and increasing resident town centre footfall from supporting ‘flats above shops’; for example, councils can consider applying different policies to residential conversions above ground floor level.”

This seems to imply that where councils seek to restrict changes of use to residential by way of Article 4, they should consider limiting this to just residential development permitted by Class MA, while allowing for new homes created in the upper floors above existing commercial uses (under the existing Class G of the GPDO which allows for certain high street uses to become mixed-use).

Currently, Class G of the GPDO allows for a change of use for the spaces above shops, financial and professional services, betting shops and pay day loan shops to change to mixed use with up to two flats. In a separate technical consultation on the consequential changes to the GPDO (discussed in detail here), it was proposed that this PD right would be continued and extended to encompass all of the new Class E categories.

This recent consultation confirms that Class G (or equivalent) would continue to allow for up to two new flats to be created. Changes of use that would result in the creation of more than two flats may instead benefit from PDRs under Class MA, therefore allowing the authority greater powers to consider and mitigate any impact via the prior approval process.

The Minister’s statement also says that he intends to make the other changes to the NPPF proposed in the consultation - presumably those relating to design, plan-making and environmental protections - later this year.

The changes to the permitted development rights required as a consequence of the introduction of use Class E are expected to be laid before Parliament very soon.