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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  

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PANned: The existence or otherwise of an effective 5 year supply of land for housing
I’ve been watching an application for planning permission in my neighbourhood with interest. It’s a site I worked on years ago, before I moved to the area. An unsuccessful turn through the plan process alongside an application for around 1,400 dwellings led to an appeal against non-determination being made then subsequently withdrawn. The landowner and their development partner then opted to pursue a smaller development of 300 homes in the context of an apparent shortfall in the 5 year supply of effective land for housing. This again led to an appeal against the failure of the planning authority to make a decision. I haven’t had any professional involvement in this site in a long time. My interest stems partly from my history with the site, but predominantly in the hope that if it’s consented and developed then a pedestrian link to the adjacent train station might become more direct from my back garden. Selfless, I know. Earlier this week my interest piqued, but this time for professional reasons, as the appeal decision was issued. The reporter’s conclusions have shone a bright light on the implications of the Scottish Government’s Planning Advice Note 1/2020, which was issued as the industry broke for Christmas last year. 5 Year Effective Supply of Land for Housing The maintenance of an effective supply of land for housing remains a bone of contention to developers and planning authorities. The property industry has maintained for many years that the correct way to calculate whether a planning authority has sufficient land is to take the annual housing land requirement from the development plan, multiply it by 5 (representing the coming 5 years) and add on any under-delivery in previous years since the plan baseline as well as demolitions that have taken place in that time. This means that the amount of homes that were being planned for at the beginning of the plan period continue to be planned for throughout the lifetime of the plan, regardless of delays. The nature of this calculation and semantics around it have been played out for years during local plan examinations and planning appeals, with nary a consistent approach being established. In December last year, the Scottish Government sought to establish a standard calculation via PAN 1/2020. The PAN offers a simple calculation to work out the 5 year effective land supply requirement. “5 year supply of effective land requirement = (development plan housing land requirement / plan period) x 5 ” It’s as simple as that. No factor allowed to consider residual need built up as a result of under delivery since the plan’s baseline evidence was prepared, no allowance for demolitions, and indeed no allowance for over-performance in delivery. This is a very simplistic approach, but one which it was hoped would dampen some of the contention in planning for housing and bring clarity to the appeal process. The Decision Back to my neighbouring site. The appeal was dismissed and there were a number of reasons referenced, but the most striking was that in relation to the housing land supply. The reporter acknowledged that at the time the appeal was made, PAN 1/2020 had yet to be published, and agreed that using the residual method which takes into account under delivery in the early years of the plan period there was a shortfall in the 5 year effective supply. The total supply was 4.6 years, leaving a shortfall of 549 homes. However, using the PAN 1/2020 method, the shortfall vanishes and the same supply becomes something between 5.6 and 8.4 years’ supply (depending on how the HLR is calculated). The supply of land for housing hadn’t changed, nor had the housing land requirement in the development plan. The existence of a 5 year effective supply arose purely through the disregard of past completion rates and the fact that the land supply hasn’t delivered as it was supposed to. Some thoughts… Will this approach contribute to delivering much needed homes? It wouldn’t appear so. Or will it result in the same old sites being rolled forward in successive housing land audits with little to no impact on delivery? That seems to be the danger.  Under this method will the Housing Supply Target set at the beginning of a plan period definitely be delivered during the lifetime of the Plan?  It is no way guaranteed and would seem unlikely… This got me thinking and I am off now to look at the implications PAN 1/2020 might have for housing delivery in other local plan areas. Look out for some Lichfields research in the coming weeks which will explore this issue further and see what the implications are elsewhere in Scotland.    If this has piqued your interest and would like to discuss these matters with me please get in touch: Gordon ThomsonPlanning Director, Edinburgh07964912360 gordon.thomson@lichfields.uk  

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