Planning matters

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Welsh Government consultation gives food (& drink) for thought
The Welsh Government (WG) is currently consulting on proposals to amend Use Class A3 (Food & Drink). Despite it being almost 15 years since England separated food and drink uses out into three use classes (A3 to A5), in Wales all food and drink uses have remained within a single Class A3 use. This now appears set to change, with new proposals currently under consideration.    The proposals form part of a wide-ranging consultation (running until 28 September 2018) that is considering changes to the Use Classes Order (UCO), 1987 (as amended) and the General Permitted Development Order (GPDO), 1995 (as amended). The consultation proposals are aimed at streamlining planning legislation in Wales for small and low impact developments, to reduce the burden on local planning authorities and to provide greater clarity for stakeholders. Throughout the consultation document, WG has also set out its intention to revise the UCO to reflect the differences in impacts between uses that currently fall within the same use class. There are also changes proposed to permitted development rights affecting a wide variety of areas from householder development, statutory undertakers and the demolition of buildings, to far more specialist matters such as, the temporary protection of poultry and captive birds (advice required anyone?). The intention is that once the consultation process has been fully considered, the existing UCO and GPDO will be united into one new piece of consolidated legislation. Whilst the consultation is wide-ranging, it is the proposed amendments to Use Class A3 (Food & Drink) that are attracting the most attention. The proposal is that the A3 Use Class will be split into three new ones; A3 (Cafes & Sandwich Bars – subject to opening hour restrictions), A4 (Restaurants and Drinking Establishments) and A5 (Hot Food Takeaways including drive through facilities). Perhaps to keep those planning consultants and commercial agents who work on schemes either side of Offa’s Dyke vigilant, the proposed new use classes and their associated permitted development rights do not match the equivalent uses classes that are already well-established in England (e.g. A3 ‘Restaurants and cafés’; A4 ‘Drinking Establishments’ and A5 ‘Hot Food Takeaways’). The below table summarises the proposed new food & drink uses in Wales and the proposed permitted development rights: In addition, it is WG’s intention to specifically exclude the consumption of food on the premises from the description of the A1 Use Class (Retail). WG acknowledges that many large high street department stores have cafés and therefore there is a recognition that consideration will be required as to whether such café uses remain ancillary to the main use, or whether the store constitutes a mixed use. Over the years, the UCO and GPDO have been subject to multiple amendments and revocations (not all of which apply to Wales). Revisiting and consolidating the legislation into a single new starting position should provide greater clarity. It also aligns with the findings of the recent Law Commission Review of planning law in Wales. Lichfields recognises that the diverse nature of food and drink uses that are currently all banded within the same A3 Use Class can give rise to significantly different impacts. For example, there can be issues associated with noise, traffic/footfall, litter, operating hours and even antisocial behaviour. Our own experience has shown that in many instances, the process of obtaining planning permission for an A3 use is often unnecessarily difficult because of concerns surrounding the wide range of potential occupiers and impacts that could arise. Moreover, in approving A3 uses we are aware of instances where local planning authorities in Wales seek to attach onerous conditions to limit what kind of ‘food & drink’ activities are permitted, or even to attach more restrictions that limit the permission to an intended occupier. This can be problematic, especially where applications are being taken forward for vacant properties that have no end-user lined up at the time of applying. As such, there is clearly merit in seeking to address the current situation and having more clearly defined use classes for diverging and diversifying food and drink uses would help in this respect. Identifying whether a unit falls within a particular use class or has a mixed use has not always been easy. It requires consideration as to what is the nature of the primary use and whether other uses are merely ancillary, or not; it typically also involves questions that are a matter of fact and degree. Notably, WG’s proposed approach is seeking to remove the grey areas and make it easier to categorise separate food and drink uses that often have many similarities, albeit different impacts. However, the proposed use of limited opening hours to provide an objective definition of an A3 use appears arbitrary. This approach also does not reflect WG’s push within TAN4  and emerging PPW to provide a varied night-time economy and improve the high street, as any cafés or coffee shops that seek to remain open beyond 7pm would instead fall within a different use class and therefore require a new permission. This would present potential problems, the obvious examples being the bureaucratic burden of further planning applications and associated costs to businesses, difficulties with enforcing breaches of planning and the stifling of entrepreneurial spirit. In addition, the highly subjective nature of what would constitute ‘limited sales for consumption off premises’ for an A3 use is not helpful as it lacks clarity and fails to remove the uncertainty that WG is so keen to avoid.   Another concern relates to the proposed Use Class C4 (Restaurant and Drinking Establishments). It is proposed that both public houses and restaurants fall within the same class, although this use class - unlike the existing arrangements or proposed A3 and A5 uses - would not include permitted development rights. The reason for this is given as being to safeguard public houses ‘in communities where their loss would unacceptably affect the local amenity’. The impact, though, would be far further reaching; necessitating a planning application for the change of use of any restaurant or drinking establishment (whether vacant or occupied) to an alternative retail use, regardless of its location. This reduces flexibility to allow for the creation of more vibrant and attractive retail and commercial centres; something which national policy has consistently promoted. The proposed changes to the food and drink use class would create one of the more stringent controls on town centre land use, is at a time when the high street is increasingly under pressure and justifying the need for fewer and not more obstacles to commercial enterprise. Furthermore, the proposals would result in an increased requirement for applications for planning permission for changes of use. This would increase the workload of planning departments, contrary to recent Welsh Government announcements that have emphasised the need to alleviate pressures on them. Having had since 2005 to consider the impacts of amendments to use classes covering food and drink in England, WG has sought to provide a bespoke approach that addresses the problems that the English system has faced. At a time when town centre businesses need more confidence to justify investment, perhaps the long-established system of use classes in England and related permitted development rights (including related case law) may have been a more appropriate route to follow, rather than seeking to re-invent the wheel.     Should you wish to discuss the implications of the consultation further we would be happy to assist.  

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Revised NPPF: a new beginning at the end of a long and winding road?
The final version of the revised National Planning Policy Framework (NPPF) was published on 24 July 2018, on the very last day before summer Recess and avoiding Parliamentary debate. In contrast, the draft version (published in March for consultation) had been announced by the Prime Minister Theresa May at a dedicated launch event. Much has changed in the make-up of Government in the four months since the consultation started (not least, the Housing Secretary and Housing Minister); however, and notwithstanding the huge amount of responses received (almost 30,000), changes made to the final version of the revised NPPF focus on clarifications and re-wording, with very few more significant amendments. Naturally, wider implications and potential impacts of the new policies will become clearer over time; for now, we have identified eleven points where changes have been made following the draft NPPF’s consultation and which are worth bearing in mind. 1. Using design policies as a key to boosting house building The revised NPPF gives a new centrality to design policies, as they are considered instrumental in delivering new homes. In his Written Ministerial Statement announcing the launch of the revised Framework, Housing Secretary James Brokenshire said: ‘[…] Critically, progress must not be at the expense of quality or design. Houses must be right for communities. So the planning reforms in the new Framework should result in homes that are locally led, well-designed, and of a consistent and high quality standard.’ Chapter 12 ‘Achieving well-designed places’ is where this renewed rhetoric is translated into policy. Paragraph 124 specifies that ‘being clear about design expectations, and how these will be tested, is essential’ for achieving sustainable development. Effective engagement e.g. with local communities (including through workshops), the use of ‘local design standards or style guides’, and the refusal of permissions for developments of poor design are some of the ways the revised NPPF aims to achieve this objective. Crucially, para 130 requires local planning authorities (LPAs) to make sure that the quality of approved developments does not materially diminish ‘between permission and completion, as a result of changes being made to the permitted schemes’. 2. Planning application viability assessments as exception to be justified The front-loading of viability assessment at plan-making stage (rather than when determining applications) was already anticipated by the draft revised NPPF, as the expectation was to be for plans to set out the levels and types of affordable housing and other infrastructure that would be required from proposed developments. However, changes included in the final version are quite significant when compared to both the original NPPF and the draft revision, particularly around paragraphs 34 and 57. The revised NPPF’s paragraph 34 on development contributions removes the possibility for plans to set out circumstances when further viability assessment may be required in determining individual planning applications. The reasoning is in para 57: the revised NPPF puts the burden on applicants ‘to demonstrate whether particular circumstances justify the need for a viability assessment at the application stage’. Furthermore, para 57 goes on to state that it will be for the decision maker to decide about the weight to be given to the viability assessment ‘having regard to all the circumstances in the case’ (including whether the plan/evidence is up to date, and potential changes to site circumstances). 3. Standardised methodology and Housing Delivery Test confirmed (for now) The new standardised methodology to assess housing needs and the Housing Delivery Test are two of the most anticipated changes to housing policy that the Government is bringing forward, and they are reflected in the revised NPPF (and accompany documents). Unsurprisingly, neither has been significantly amended when compared to previous consultation versions, probably reflecting the inherent complexities behind their ‘construction’. However, of interest in relation to the standardised methodology is the Government response to the draft revised NPPF consultation which highlights: ‘[…] it is noted that the revised projections are likely to result in the minimum need numbers generated by the method being subject to a significant reduction, once the relevant household projection figures are released in September 2018. In the housing White Paper the Government was clear that reforms set out (which included the introduction of a standard method for assessing housing need) should lead to more homes being built. In order to ensure that the outputs associated with the method are consistent with this, we will consider adjusting the method after the household projections are released in September 2018. We will consult on the specific details of any change at that time.’ In short, the methodology is confirmed for now, but everything may change, following the release of household projections in September 2018 (see this Lichfields blog for further details). 4. Lower requirement for small (and medium) sized sites The draft revised NPPF’s requirement for at least 20% of the sites identified by LPAs in their plans to be half a hectare or less has been changed and potentially made more achievable. The final version of the revised NPPF now expects LPAs to accommodate at least 10% of their housing requirement on ‘small and medium sized sites’ (up to one hectare) through their development plans and brownfield land registers. Furthermore, it is recognised that the 10% target may not be achievable in all circumstances; in such cases, the preparation of the relevant plan policies should detail the ‘strong reasons’ that make the target unachievable. 5. More clarity on strategic and non-strategic policies The draft NPPF’s reference to ‘strategic’ and ‘local’ policies - which caused confusion in relation to spatial development strategies, and appeared to undermine the need for local plans - has been clarified. The final revised NPPF now distinguishes between strategic policies (which should look over a minimum of a 15-year period) and non-strategic policies (included in local plans, when these are not considered strategic policies, and in neighbourhood plans). Both ‘strategic’ and ‘non-strategic’ policies are defined in more detail in Annex 2: Glossary. 6. Town centre diversification promoted The rapid changes that are affecting the retail sector and, as a consequence, England’s town centres are acknowledged and reflected in the final version of the revised NPPF. It recognises that diversification is key to the long-term vitality and viability of town centres, to ‘respond to rapid changes in the retail and leisure industries’. Accordingly, planning policies should clarify ‘the range of uses permitted in such locations, as part of a positive strategy for the future of each centre’. The draft revised NPPF’s reference to town centres in decline has been removed, possibly because of its unclear wording and most probably in wider recognition of the effects that changed shopping habits are already having on town centres.    7. Land assembly and compulsory purchase Reflecting wider debates about the role of LPAs in bringing forward enough land for housing developments to meet their identified needs (and the Government’s 300,000 homes/year target), paragraph 119 now details some of the powers that proactive LPAs should use. These include specific reference to facilitating land assembly, where possible, and using compulsory powers where this is considered beneficial to ‘meeting development needs and/or secure better development outcomes’. 8. Green Belt: of course it’s here to stay Unsurprisingly, Green Belt policies have not changed significantly from the draft version published for consultation; however, two minor changes in wording are of interest. Paragraph 136 on exceptional circumstances to amend Green Belt boundaries now refers to these being ‘fully evidenced and justified’, an addition since the draft revised version. While this might appear to be a more stringent requirement, new para 137 specifies that, to justify the existence of exceptional circumstances, an LPA ‘should be able to demonstrate that it has examined [it was ‘should have examined’] fully all other reasonable options for meeting its identified need for development’; this might seem like a minor change, but it could give more flexibility and a clearer path for LPAs considering releasing Green Belt in exceptional circumstances. 9. Heritage policies retained and restored Heritage and historic environment policies are generally in line with those proposed in the draft revised NPPF. Importantly, LPAs are now expected to maintain ‘or have access to’ a historic environment record (paragraph 187). One of its purposes is to be used to ‘predict the likelihood that currently unidentified heritage assets […] will be discovered in the future’. Changes to the way the impact of proposed development on the significance of designated heritage asset is assessed, which were already anticipated in the draft revised NPPF, are now confirmed and further clarified; paragraph 193 states that ‘great weight should be given to the asset’s conservation […] irrespective of whether any potential harm amounts to substantial harm, total loss or less than substantial harm to its significance’. Finally, where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, ‘this harm should be weighed against the public benefits of the proposal including, where appropriate, securing its optimum viable use’. The term ‘optimum viable use’ was included in the original NPPF but not in the draft revised NPPF. 10. A change to transition The policies in the revised NPPF are material considerations to be taken into account in determining planning applications ‘from the day of its publication’ (i.e. from 24 July 2018). Importantly, the policies in the 2012 NPPF still apply to examining plans submitted on or before 24 January 2019. Interestingly, footnote 69 is amended to clarify that for spatial development strategies, ‘submission […] means the point at which the Mayor sends to the Panel copies of all representation made’; this is an amendment specifically made to reflect the stage reached by the draft London Plan, particularly when compared to the draft revised NPPF wording (which referred to ‘submission’ being a later stage, specifically the point in which copies of the strategies intended for publication are sent to the Secretary of State). Accordingly, the new draft London Plan will be examined against the original NPPF policies – a relief to the Mayor no doubt. 11. ‘Social rent’ back in and starter homes loosen up The revised version of the glossary at Annex 2 includes reference to social rent again, as an ‘affordable housing for rent’ product rather than in its own right; any reference to social rent housing was previously deleted from the draft revised NPPF’s definition of affordable housing. Further amendments have been made to the definition of ‘affordable housing’, particularly in relation to starter homes. Interestingly, previous reference to the maximum annual household income of eligible buyers (£80,000, or £90,000 in London) has now been removed and left as a matter for secondary legislation; this is to reflect the fact that the Housing and Planning Act 2016 does not explicitly refer to those income thresholds. Might this signal the ‘resurgence’ of starter homes? Unlikely. Overall, the impression is that the process of updating and reviewing the 2012 NPPF has been more complicated than many expected it to be, and the continuous changes in the Department and then Ministry surely have not helped (five Housing Ministers and three Secretaries of State since the NPPF review was first announced). Perhaps as a result of it having taken a good while, the revised NPPF seems to better reflect the new approach taken by the Ministry, the renewed centrality that housing policies have within the Government’s agenda and all of the case law that has come about from testing the 2012 Framework in the courts. The new NPPF even reflects Sir Oliver Letwin’s emerging findings on housing delivery, by effectively recognising that the quality and design of housing development is crucial to ensuring greater community support. Some reforms do seem ambitious, particularly around viability assessments and given the English plan-led system, and the practical impacts of these reforms ought to be tested and monitored over a longer period of time to understand whether Government has struck the right balance. As acknowledged in James Brokenshire’s Written Ministerial Statement, the revised NPPF alone will not be enough solve the housing crisis; other reforms, the support of central Government, cooperation with/between stakeholders, local authorities and communities are all crucial elements in addressing the housing challenges the country is facing. As usual in these cases, whether the revised NPPF represents a new beginning or rather a false start is too soon to be said, as its final judgement will be solely based on its achievements and/or failures. See the ‘Revised National Planning Policy Framework’ suite of documents here Lichfields will publish further analysis of the consultation on the draft revised NPPF and its implications. Click here to subscribe for updates.

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