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Planning matters

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The focus of press releases regarding The Levelling Up and Regeneration Bill has been on street votes, consultation, plan-making, digitisation, design and provision of infrastructure. The Development Management provisions are less obvious, but just as important, and would slot in quickly and easily to the existing English planning system. Some also have an immediacy to them, as they will not require regulations, other than commencement regulations, to give them full effect. Others are changes referred to in a policy paper about the Bill and will not form part of the Bill itself. The proposed changes to the development management system discussed in this blog are:   A new procedure to amend planning permissions - including their descriptions of development   The use or lose it provisions, designed in response to suggestions of land banking   Changes to section 38(6), which currently requires decisions to be made in accordance with the development plan, unless material considerations indicate otherwise   Potential increase to planning application fees   Changes to enforcement legislation, including all breaches being subject to enforcement for up to ten years   Changes to heritage legislation   Making pavement licence applications permanent   Section 73B – new route to vary a planning permission Section 73 of the Town and Country Planning Act 1990 (TCPA) allows applications to be made for permission to develop without complying with a condition previously imposed on a planning permission. It is commonly used to make minor material amendments to planning permissions. The Finney case, discussed in greater detail here, confirmed that section 73 cannot be used to alter a description of development. Therefore, multiple applications are often now needed where a minor material change to a scheme is proposed. To change a description of development, it is currently necessary to submit a s96A application, which should be approved if the change is non-material. The Bill would introduce Section 73B, a new route to vary an existing, express, original planning permission when making non-substantial changes, including to the description of development. This new route would only be permitted if the local planning authority (LPA) is satisfied that the changes will not create a substantially different permission. No further detail has been provided on what would constitute “a substantially different effect”. Under Section 73B, the authority should limit its considerations to the ways in which the variation would differ in effect from the existing permission and it will not be possible to use the new provisions to extend the time for implementing a permission. Section 73B could also be utilised to make changes to permission in principle. It appears that section 73B creates a new planning permission, thus meaning either the original or changed scheme can be implemented – unlike s96A, which amends a scheme and only the amended scheme can be implemented. The provision appears to be designed for changes in the course of construction and cannot be used to amend retrospective planning permissions. Related to this purpose, s73B would allow for existing section 73 planning permissions for minor material changes to the original planning permission, to be taken into account when determining s73B applications – albeit without permitting the amendment of s73 planning permissions. This might mean that a s73B permission creates single alternative scheme to the original, incorporating the preferred previously permitted changes. Such an amendment would probably still require the s106 to be varied, unless it already incorporated such amendments. One might assume that the CIL Regulations would be amended to expressly take into account section 73B, the absence of which could lead to a few LPAs refusing to entertain applications that would result in changes to floorspace, as they do with s96A applications that would do so at present.     Commencement and completion notices – use it or lose it Commencement notices Clause 99 would insert a new section, 93G (Commencement Notices), into the TCPA 1990. This new section would require those carrying out certain as-yet-undefined development types to serve a commencement notice to the relevant LPA, before any development has taken place. This notice would require the expected start date of development, the details of the planning permission, the proposed delivery rate of the scheme and other relevant information (as outlined in the explanatory notes of the Bill). The example in the explanatory notes of the Bill (see figure 1 below), suggests that the provision would most likely apply to large scale residential schemes, to prevent perceived land banking by developers.   Figure 1 Completion notices A new power would be given to LPAs, to serve a completion notice on a planning permission for development which has commenced, but which in the LPA’s opinion will not be completed within a reasonable period. A completion notice could be served no earlier than 12 months after the date stated in a planning condition for implementing a planning permission (i.e. at least 12 months after the development commencement deadline). A completion notice would set out a time limit (“completion notice deadline”) after which the planning permission would cease to have effect for any unfinished parts of the development. The deadline for compliance with the completion notice would be no sooner than 12 months after the notice was served. There would be a process for appeals against the serving of a completion notice. Given that the time period for commencing a development cannot be altered by any existing or proposed procedures for amending permissions, the date from which a completion notice could be served would not change if a permission was amended. The new completion notice power, under section 93H of the TCPA, would not require the Secretary of State to confirm when a completion notice can take effect in England. Under existing law, a section 94 completion notice can only take effect once it has been confirmed by the Secretary of State. Existing Section 94 of the Town and Country Planning Act 1990 (termination of planning permission by reference to time limit: completion notices), would only continue to apply in Wales. The Bill, its explanatory notes and its associated policy paper do not state that completion notices could only be served on certain types of development, whereas commencement notices would be limited in their coverage. However, the change in legislation is linked to lobbying for “use it or lose it” measures and the Housing Minister made clear that the provisions are intended to be used together, during a Parliamentary debate [1]: “There are measures in the Bill to try to address build-out rates, which are an important element that we have to tackle. Under the Bill, it will be necessary to supply the local authority with a commencement notice, an agreement on the number of houses that will be built each year and a completion notice. We are absolutely on this, and I assure my hon. Friend that we will do everything we can to ensure that the houses that have got permission are built.” The continued push for use it or lose it provisions comes despite land banking claims being routinely debunked – see this blog by Matthew Spry. Perhaps completion notices are applicable to all development to mask this provision being aimed at land promoters and larger housebuilders? A related provision, in terms of the desire to monitor land control and build out rates, would “improve transparency about the ownership and control of land” according to the Bill’s policy paper. The clause permits the Land Registry or equivalent “to collect information on the ownership of land, of relevant rights concerning land and others with the ability to control or influence (directly or indirectly) over the owner of a relevant interests or rights relating to land” – i.e. to centrally record the options taken on land.   Role of the development plan in decision making Clause 83 of the Bill relates to the role of the development plan and national policy in England. Currently, the Planning and Compulsory Purchase Act 2004 (PCPA) allows determinations to diverge from the development plan where material considerations indicate that this is justified. S38(6) of the PCPA would be amended so that determinations would be made in accordance with the development plan and national development management policies unless material considerations strongly indicate otherwise. These changes are covered in more detail here, but from a development management viewpoint the addition of the word ‘strongly’, would result in greater weight being given to the development plan than is currently the case, while also immediately placing national development management policies above other national policy. Given these proposed changes, a review of the NPPF is also expected to follow. As with other development management proposals, this change would not come into force in Wales.   Consultation on increasing major application fees by more than a third Alongside the publication of the Bill, the Government has committed to increasing planning fees for major applications by 35% and minor applications by 25%. However, they have made clear that an increase in fees must coincide with a better planning service for applicants. These proposed changes will first be subject to a consultation.   Enforcement – four year rule to be upped to ten for all breaches Chapter five of the Bill refers to the changes for Enforcement of Planning Controls. This the introduction of several private members Bills relating to enforcement (see Lichfields Planning News, October 2021). Of particular note, LPAs would have ten years to take enforcement action against unauthorised development for building, engineering, mining or other operations in England. This would be development in, on, over or under land up to ten years after the date on which the works were substantially completed. The time period for enforcement action will remain four years in Wales. The time period for the duration of temporary stop notices has also been increased in England to 56 days, from 28 days previously. This would remain 28 days in Wales. English LPAs would have the power to issue enforcement warning notices. These notices could be issued where a breach in planning control has occurred, but the LPA judges that there is a reasonable prospect of planning permission being granted for the development if a planning application was submitted. If the application is not received within the specified period, the LPA could take further enforcement action. There would also be an extension of the circumstances in which the ability to lodge a ground (a) appeal against an enforcement notice issued in England is removed so that there is only one opportunity to obtain planning permission retrospectively after unauthorised development has taken place. In Section 174 (2) of the Town and Country Planning Act 1990, a ground (a) appeal is submitted on the grounds that that planning permission should be granted for what is alleged in the enforcement notice (or that the condition or limitation referred to in the enforcement notice should be removed). New subsection (2AC) of the Bill explains the different circumstances in which a related application ceases to be under consideration. Subsection (2B) clarifies the day on which the application ceases to be under consideration for the purposes of calculating the two year period in which an enforcement notice must be issued if a ground (a) appeal is to be prohibited. Furthermore, the Secretary of State would have new power to dismiss an appeal in relation to an enforcement notice or an application for a lawful development certificate in England if the appellant is deemed to be causing undue delay to the appeal process. The appeal could be dismissed unless the appellant takes the action specified in the notice within the outlined period. The penalty for noncompliance with a breach of condition has also been increased to an unlimited fine, as has noncompliance with a section 215 completion notice (which are rarely issued at present, and different to the proposed s93H completion notices, see above). It also increases the maximum daily fine in England to the greater of either one tenth of a level 4 fine (currently £2,500) or £5,000. The Secretary of State would have a new power, via regulations, to provide relief from enforcement of planning conditions against a developer or individual, for non-compliance with specified planning conditions or limitations, for a specified period. This would allow greater flexibility in the enforcement regime. Instead of issuing specific persuasive but non-binding guidance regarding taking enforcement action, for example as the Government did regarding delivery hours conditions etc. during the height of the Coronavirus pandemic, the Government would be able to rely on these new laws.   Heritage With regard to heritage, the Bill would insert a new section ‘duty of regard to certain heritage assets in granting planning permission or permission in principle’ into the TCPA 1990. New section 58B (1) would specify that a local planning authority or the Secretary of State must have special regard to preserving or enhancing a heritage asset or its setting when considering planning applications in England. “Heritage assets”, would include Scheduled Monuments, Protected Wreck Sites, Registered Parks and Gardens, Registered Battlefields or World Heritage Sites, so that they would have parity with listed buildings and conservation areas in law, as well as the existing policy parity. The Bill would also amend section 16 of the Listed Buildings Act to require consideration of preservation or enhancement, instead of solely preservation, when determining listed building consent applications. Another proposal is to amend the Listed Building Act so that a temporary stop notice could be issued on work to a listed building for up to 56 days while also making it an offence for breaching this notice. The proposed ‘removal of compensation for building preservation notice’ is expected to have significant impact. LPAs can serve a Building Preservation Notice (BPN) on the owner and/or occupier of a building, which is not currently listed, but is considered to be of special architectural or historic interest and is at risk of being demolished or changed, which would affect this status. Currently, under section 29 of the Listed Buildings and Conservation 1990 Act, a person who has an interest in a building which has been served a BPN can make a claim to the LPA for compensation for any loss or damage as a result of the BPN. The Bill would amend the Listed Building Act and remove this right.   High Streets and pavement licences As discussed in greater detail in this blog, the Bill proposes a new power to instigate “high street rental auctions” of selected vacant commercial properties in town centres and on high streets which have been vacant for more than one year. The Bill also sets out when a town centre may be designated. The Bill defines “high street use” too – essentially uses that the Government is looking to protect or considers desirable, with no reference to use class. This is not directly relevant to development management, but it is interesting to see the uses that the Government would like to actively encourage on High Streets. The Bill would also make permanent, subject to some changes, the measures that facilitate pavement licensing which were first brought in as the high street reacted to COVID which are outlined here.   

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Change coming to your High Street (and beyond) – more new PD rights for 2021
As explained by Planning Practice Guidance, permitted development rights (PDRs) are a national grant of planning permission which allow certain building works and changes of use to be carried out without having to make a planning application, subject to conditions and limitations intended to protect local amenity. It is the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO) that grants this national planning permission in England. The Town and Country Planning (General Permitted Development etc.) (England) (Amendment) (No. 2) Order 2021 (Amendment No. 2 Order 2021) came into force on 1st August 2021 and has introduced a wide range of changes to the GPDO. The primary purpose of the amendments is to amend the GPDO to reflect last year’s changes to the Use Classes Order - which introduced greater flexibility (as well as protections) for certain town centres uses - primarily by tying up loose ends and anomalies created by the new class E. In addition to the changes made by the Amendment No. 2 Order 2021, new Class MA commercial, business and service to residential permitted development rights that came into force in April, but which require prior approval that could not be sought until 1st August 2021, are now available. While PDRs continue to divide opinion, the Government sees them as playing a pivotal role in providing new homes. Housing Minister Christopher Pincher showed his support for the latest changes when giving evidence to the Housing, Communities and Local Government Committee, stating: “We believe that permitted development rights, as evidenced by the last five or six years of data, demonstrate that additional houses that may not otherwise have been built have been brought forward. We see them also as a means of high street revitalisation.” There are live challenges to both the Use Classes Order and to amendments to the GPDO. Anjoli Foster of Landmark Chambers is acting for the Government, led by Rupert Warren QC, and advised via LinkedIn this morning that  "The challenge by Rights:Community:Action against the new Use Class E and PD rights to build upwards, which was dismissed by the High Court last year, is due to be heard by the Court of Appeal on 5th October 2021. A challenge has now also been made by the London Borough of Islington against the new PD right Class MA (change from Class E to residential). A date for the hearing in the High Court is yet to be set". As noted above, the Amendment No. 2 Order 2021 came into force on 1st August 2021. The most substantial amendments apply to the following Parts of the GPDO: Part 3 Changes of use and Part 4 Temporary buildings and uses. These Parts grant planning permission for changes of use only, with exception of the permitted development rights for agricultural building, launderette, betting office, pay day loan shop, hot food takeaway, casino or amusement centre to residential, which permit specified building operations. Therefore, planning permission is required for building operations where this is not provided by the GPDO, for example to remove a shopfront to convert a shop to a dwelling. The Lichfields Guide to the Use Classes Order has been updated to reflect the permitted development rights available from 1st August 2021 – it should be used as a general guide only, because it does not provide details of limitations (e.g. floorspace maxima), restrictions, conditions and details of any requirements for any application for determination as to whether the prior approval of the local planning authority will be required. Main PDRS that have been withdrawn The PDR that allowed for change of use from general industrial (B2), or storage and distribution (B8) to light industrial/business (formerly B1, now part of Class E) has now been withdrawn. The Government's rationale behind this is that change of use from class B2 or B8 to class E “could in future see the development of inappropriate uses such as nurseries or day centres, in industrial areas”. However, the PDR which allows change of use from Class B2 to B8 will remain in place under Class I, though as before, the floorspace of the converted development must not exceed 500sqm. The PDRs relating to a number of the former assembly and leisure use class D2 have also been withdrawn due to the reforms to use classes in 2020, which split Class D2 into the Commercial, Business and Service use class, Class E, Class F.2 and into their own class (sui generis). Part 3 Class J, which allowed change of use from shops (formerly A1), financial and professional services (formerly A2), betting office or pay day loan shop to assembly and leisure (formerly D2) and Class K, which allows change of use from casinos to (former) Class D2, have all been withdrawn. Changes to PDRs for permanent change of use Part 3 Class R will remain in force, allowing for the change of use of an agricultural building to a ‘flexible use’ falling within Class E. The change of use of agricultural buildings to former D2 uses such as cinema or live music venues is however no longer available. PDRs which allowed for changes of use between typical town centre and retail uses, Part 3 Classes A-F and PDR Class JA, have been replaced with a new right to change from casino, betting office, pay day loan shops, take-aways to use Class E with no limitations or conditions. Part 3 Class M, change of use from retail to residential, will be partially retained to allow the sui generis uses to continue to benefit from Class M – i.e. hot food takeaways, betting office, pay day loan shop or launderette to residential.   In most other instances Class M is now superseded by the new Class MA. As noted above, Class MA also becomes available on 1st August, having to come into force on 21st April 2021. This allows for changes of use from Class E to residential. As discussed in Jennie Baker’s blog , Class MA has replaced Class O office to residential and partially replaced Class M retail. The controversy of Class MA lies in the fact that many properties within Class E will be able to change to residential without consideration of the impact on the High Street if the proposal is outside of a conservation area and limited consideration if it is within. Only listed buildings and their curtilage and properties in the most sensitive locations such as World Heritage Sites, National Parks and Areas of Outstanding National Beauty will be excluded from the new PD right. This use class reflects the Governments current priorities of increasing housing supply and creating more efficiency for existing developments in and around town centres and highs streets. The PDR does not apply if more 1,500sqm of cumulative floorspace is to be converted. In reality, this restriction will have a minimal impact on retail sites within town centres, as most of the floorspace of most retail premises within town centres is below 1,500 sqm. Part 4 Class G of the GPDO now permits change of use from Class E to Class E and up to two flats, from betting office or pay day loan shop to Class E and up to two flats or as betting office or pay day loan shop and up to two flats. It has also been amended so that a requirement is in place for an application for local consideration of matters of prior approval from 1st August 2021. However, development begun before this date may continue to proceed irrespective of whether an application for prior approval has been made. Changes to PDRs for temporary change of use Part 4 Class D previously provided a mechanism for shops, financial, cafes, takeaways to change to several other uses on a temporary, flexible basis but since the introduction of Class E the role of Class D has been superseded. Despite this, Class D will be retained in a modified form, with the Explanatory Memorandum explaining this is to allow start-ups to trial alternative uses. The right has been amended to provide for the temporary change of use from Class E, hot food takeaway, betting office and pay day loan shop to another Class E use, or to specified F1 Learning and non-residential institutions uses art gallery, museum, public library, public hall or exhibition hall. Should a developer wish to retain a sub-category of use Class E that their building falls within as the lawful use, then they will need to notify the local planning authority that they are seeking to benefit from this temporary permitted development right. Conclusions These changes provide a necessary update to the GPDO, bringing the legislation in line with last year's amendments to the Use Classes Order. Some might question whether the Government missed an opportunity to not provide a proper consolidated version of the GPDO, merging together the many various amendments made over the years. In combination with the expansion of PDRs over the last year, national policy for Article 4 directions has also been adapted, with the intention of stymieing councils’ attempts to introduce Article 4 Directions for large areas of land within town centres (see Lichfields’ blog ‘Summer appetiser). The wording in the NPPF has been altered to ‘The use of Article 4 directions to remove national permitted development rights should: 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) Related to these changes, the Government has also recently outlined its strategy to regenerate high streets with its ‘Build Back Better High Streets Strategy’ which further underlines the emphasis on building homes on high streets. Housing Minister Christopher Pincher has said, “We all know of the challenges that the high street faces. We believe that building new homes on or near high streets will better revitalise those places that have suffered a great deal over the last few months and, indeed, the last few years.” Lichfields recent Insight, 'Moving on up', also discusses the Government’s strategy of regenerating England’s high streets, focusing on northern England. The Insight highlights that there is hope for an optimistic future in England’s high streets as the town centre sector benefits from innovation and £4.8 billion of funding from the Governments Levelling Up Fund. What is clear from all of this is that the Government regards town centres and high streets as a key component to its levelling up pledge as well as providing much needed new housing. The seismic changes to PDRs and alterations to Article 4 directions within the NPPF demonstrate how important the Government views these changes to meeting its targets, resulting in some of the biggest changes to planning in several years, which may be coming to a High Street (…or retail park, business park or agricultural building) near you very soon.   The Town and Country Planning (General Permitted Development etc.) (England) (Amendment) (No. 2) Order 2021Housing, Communities and Local Government Committee, Oral evidence: Permitted development rightsUK Parliament, Written statements, Revitalising High Streets and Town centresMHCLG, Build Back Better High Streets

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