Planning matters blog | Lichfields

Planning matters

Our award winning blog gives a fresh perspective on the latest trends in planning and development.

Minister confirms national policy change on Article 4 directions
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. “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) 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.   UK Parliament, Written Statement, Revitalising high streets and town centres  


Project speed gathers pace – more permitted development rights for education, hospitals, prisons and ports
The latest batch of new and revised permitted development rights seek to set the foundations for ‘Project Speed’, the Government’s strategy to bolster England’s public infrastructure and harness its economic recovery, following the impact of the pandemic and the UK’s exit from the European Union. The Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021 will introduce revisions to The Town and Country Planning (General Permitted Development)(England) Order 2015 (GPDO). The legislation is set to come into force on 21 April 2021, though the timing of certain provisions may vary. While the property press headlines focus on the introduction of the new permitted development right for converting vacant buildings that fall under the new Use Class E to residential (covered in this blog, Class MA: Mercantile to Abode ), this blog looks at other changes, which are focused on supporting public bodies construct new buildings and structures and carry out other alterations and renovations. These also sit alongside separate permitted development rights which will grant port operators the same powers as those vested to airports, which will allow for small scale development without the need for planning permission. Commenting on the changes, Communities Secretary Robert Jenrick commented: “The public also want improvements to public services as quickly as possible and so these changes will also help schools and hospitals to adapt quickly to changing needs with a new fast track for extending public service buildings. This will help deliver more classrooms and hospital space by helping them extend further and faster.” The changes will significantly increase the envelope of what is considered as acceptable without making an application for planning permission. We cover the key changes in detail below: Greater flexibility for schools, colleges, universities and hospitals to extend The big change for public service providers is the amendments to Part 7 Class M of the GPDO (2015). This permitted development right allows for the “extensions etc for schools, colleges, universities and hospitals”. The amendments increase the threshold for the amount of new floorspace permitted, while also now allowing prisons to benefit from the right, alongside education providers and hospitals. This class of the GPDO allows for new buildings as well as extensions, though these must be within the same use or ancillary to the existing use, while any new development must be situated within the curtilage of the premises’ boundaries. Buildings benefiting from Part 7 Class M will now be allowed to expand their facilities significantly - by up to 25% of the footprint of the current buildings on the site as of 21 April 2021, or by up to 250 square metres, whichever is the greater. This was previously limited to 25% square metres of the ‘original building’ or 100 square metres (with the exception of schools which were already capped at the new lower limit of 250 square metres). The height limit for new buildings (which does not include plant) has also increased from five to six metres, though this will remain capped at five metres within ten metres of a boundary of the curtilage of the premises. The “original building” continues to exclude buildings already erected under Part M. And the provision stating “where 2 or more original buildings are within the same curtilage and are used for the same institution, they are to be treated as a single original building in making any measurement”, does not appear to have been changed. Whereas some other permitted development rights, such as those for upward extensions, expressly provide for related building operations, such as access and egress, related storage, waste and plant etc; Part 7 Class M as amended only refers to buildings. Permitted development rights for the provision of hardstanding already exists for schools, hospitals and universities under the Class N of Part 7 of the GPDO. Surprisingly, perhaps, these remain unchanged though are limited to just 50sqm in total. No prior approval is required for schools, colleges or hospitals wishing to benefit from the extended PD rights. However, where the expansion of a school results in any increase in the school’s admission numbers, a travel plan must be submitted for the site within six months from the date of completion. This will need to outline the long-term management strategy for providing sustainable transport to and from the premises. Given the relative scale of many universities and the central and sometimes sensitive locations they often occupy, prior approval is however required for the following matters: transport and highways impacts of the proposed development; the design and external appearance of the erection, extension or alteration; or the impact of the development on heritage and archaeology. Where an application for prior approval is required, as with other prior approval procedures, development must not begin before the LPA either determines prior approval is not required, grants prior approval or the expiry of 56 days following valid application submission, without the LPA giving a decision. The Explanatory Memorandum confirms that secondary legislation is expected to introduce a fee of £96 for prior approval applications made by universities. As with the current requirements for Class M, development is not permitted within the curtilage of a listed building. Furthermore, the Class M materials condition relating to development on Article 2(3) land (i.e. national parks, Areas of Outstanding Natural Beauty, conservation areas, the Broads, and World Heritage Sites) will also continue to apply, requiring new buildings and extensions to use materials of a similar external appearance to those used of the original buildings. This would only be assessed where external appearance is a prior approval matter – i.e. for universities. For schools, colleges, hospitals and prisons it would be for the developer to ensure that this condition is met. Expanded PD rights for ports, canals and other water related transport systems The new legislation has also expanded the permitted development rights for docks, harbour, water transport, canals and other inland navigation undertakings. The new measures relate to previous commitments made following the Government’s Freeports consultationlast October. Article 10 of the Amendment Order will widen the scope of Class B of Part 8 of the GPDO to provide, as the explanatory memorandum states, “dock, pier, harbour, water transport, canal or inland navigation undertakings greater flexibility to undertake development, supporting ports as an important economic agent further to the exit of the UK from the EU”, while also permitting such development to be undertaken by the statutory undertaker’s agent of development, allowing for works be undertaken by others on the behalf of the operator. The amendments include text, stating that development is now deemed to fall within Class B of Part 8 where: a.  it is urgently required for the efficient running of the dock, pier, harbour, water transport, canal or inland navigation undertaking, and b.  it consists of the carrying out of works, or the erection or construction of a structure or of an ancillary building, or the placing on land of equipment, and the works, structure, building, or equipment do not exceed 4 metres in height or 200 cubic metres in capacity The changes now bring PD rights for ports and similar water transport infrastructure in-line with those available to airports. With the UK now outside of the EU, there will likely be other planning changes in tow aimed at supporting the movement of goods, and the Government’s objective of delivering growth and regeneration through the introduction of Freeports. The Government had also previously stated it will consider a review of the current National Policy Statement for Ports (NPSP). Conclusions The changes reflect the general direction of travel for the planning system, with Ministers streamlining the application process for certain types of development, by expanding permitted development rights and simplifying the classification of use classes; for once the Government has very little to say about the design or appearance of development, except where this may potentially impact on designated heritage assets. The added flexibility will likely be welcomed by some operators, allowing for greater flexibility in adding additional capacity, while also allowing for the reconfiguration of existing buildings – something which many businesses and organisations have grappled with in responding to COVID-19. Clearly some public service and port infrastructure development will fall outside the remit of the newly expanded permitted development rights. In its response to the December consultation on these changes, the Government has confirmed that it will go forward with its plans to streamline the application process for ‘major development’ in this area, which will likely be brought about principally through amendments to the Town and Country Planning (Development Management Procedure) (England) Order 2015. It has stated that these will involve: reducing the statutory determination period from 13 weeks to 10 weeks; shortening the statutory consultation period from 21 to 18 calendar days; requiring that local planning authorities notify the Secretary of State when they anticipate making a decision; and making clear that the policy in paragraph 94 of the National Planning Policy Framework about the importance of pre-application engagement is extended to these types of development. Although we await further detail on these additional measures, the Government has stated it intends to introduce them by the end of August 2021.   The Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021MHCLG, Government response to consultation ‘Supporting housing delivery and public service infrastructure’