Paternalists, pragmatists and permitted development rights

In case you have not heard the government is committed to reshaping the planning system to make it accessible, efficient and more predictable. Permitted development (PD) rights, which are kryptonite to the paternalistic planner and cocaine to the free marketeer, have come in from the shadowy fringe to take centre stage in this government’s reshaping process.

From September last year a new use class brought together commercial, business and service uses ‘to provide greater flexibility and enable businesses to respond rapidly to changing market demands’. It seemed to me that most commentators agreed that moving between such uses without the need for a planning application was a good thing on the basis perhaps that one of those activities is better than no activity. ‘Class E’s are good’ someone who came of age in the ‘90s might say.

Hot on it’s heels though came another consultation in December on a proposed new PD right for the change from that new Class E to residential. My sense here is that, perhaps lost in the respective Standard Method, Brexit and Covid Christmas brouhahas, some in the profession have not yet appreciated just how huge an additional step this would be.

The existing residential conversion PD rights have applied only to certain commercial uses (offices, light industrial units, shops, professional services premises and hot food takeaways), but the rights for shops, professional services and takeaways only benefited buildings smaller than 150m². This is the reform that created places like Terminus House in Harlow and if (like most right-minded people) you did not like that then you really will not like what could be in store now because the new right would apply to all of the other uses that were added to Class E like restaurants and cafes, doctors' surgeries, clinics, creches and nurseries, day centres, and indoor sport and leisure facilities. I have heard of LPAs ‘sweating’ brownfield land registers as hard as possible for residential capacity, but PD rights for homes in gyms is perhaps taking things a little too far.

The paternalist planner, keen to promote the stewardship of places over time, thinks that more planning is required not less. The free-marketeer, keen to unleash the awesome power of private enterprise, thinks that any planning is a barrier to that. The politician though, looking no further ahead than next year’s net additional dwelling stock statistics and having had their toe nipped in the piranha-filled pool of actual qualitative planning reform, just knows that, quantitatively, for every fifty flats in an empty town centre office building fifty less houses need to be built on a field on the town’s periphery. The town planning ideologue, the dreamer who sees the world as it should be rather than as it is may as well go and whistle in the wind. More PD rights are coming whether we like it or not. What is the pragmatist to do in this situation though? How can these proposals at least be made better?

There are practical points that need making. The new right would apply in conservation areas, for example, where previous PD conversion rights did not.

Similarly, whilst the new right would be subject to space standards and a requirement to provide natural light, it would not allow, as with previous PD conversion rights, LPAs to refuse schemes on design grounds or a negative impact on neighbouring uses.

The new right, with no size limit proposed to the buildings benefitting from it, would not trigger affordable housing or other Section 106 contributions, and a flat rate fee of £96 per home might not cover the LPAs application handling costs.

I wonder though whether, beyond those points, there could be scope to improve the operation of any new PD rights in principle as well as in practice. To better marry the case for transformational change, which is compelling, with the case for managed change, which is equally compelling.

As the consultation document highlights, “high streets and town centres have felt the effect of structural changes in consumer spending and retailing such as the shift to online shopping for a number of years, but over the 12 months from June 2019 to June 2020 there has been a net reduction of 5,350 units in town centres in England. The COVID-19 pandemic has magnified these problems.” There will inevitably be a surplus of commercial, as well as retail, space in some places as a result of the pandemic, but that will be differ from town to town and from city to city. Some places might need transformative change. Some might just need change.

As the consultation document also highlights, the government is “delivering long-term structural support through a range of interventions, including investment from the £3.6 billion Towns Fund, and has brought forward over £80m of this funding this year through the Future High Street (FHS) Fund to support immediate improvements in town centres.” Some places might be proactively seeking out funds to initiate that transformative change and some might not, but what are those that are, those recent recipients of a FHS Fund award for example, to make of a parallel government initiative that might drive a coach and horses through the schemes that those bids were based on?

As far as I am aware whilst FHS Fund submissions needed to include strategic, commercial and management elements within a business case for comprehensive intervention that might have led applicants to prepare a masterplan, a masterplan itself was not a formal bid requirement. Some projects will be standalone, one-off investments based solely on project details, but some will be large, centre-wide, and transformative over time. Some such proposals, like those to tame a sprawling retail core, might include the conversation of some streets to residential use, but not others. What would blanket PD rights across the whole centre do to that project?

It seems to me, therefore, that to go beyond exempting existing primary frontages and to better deal with the irreversible disruption that would be caused by a twelve month period until Article 4 directions could be put in place, the introduction of this wholesale PD right change should be linked in some way to the extent to which a place is planning positively for the future of it’s centre. Places that are already doing so (by way of a masterplan or a strategic regeneration framework or even a local development order) should not be discouraged from doing so, but equally, places that are not planning positively need to be encouraged to do so. For the paternalist planner, the LPA could maintain current degrees of overall control rather than see it fragmented and distributed across individual building owners. For the free-marketeer, if the LPA is not planning positively to assess and reuse space and buildings then the PD rights could come into play. A presumption in favour of permitted development rights if a plan for a town centre does not exist in the same way that a presumption in favour of sustainable residential development is triggered if a local plan is out of date or if a 5 Year Housing Land Supply cannot be demonstrated. A middle way. The kind of reasonable, pragmatic compromise you might expect from a Centrist Dad like me.

Whilst writing, I could not help but offer comment on the measures to support public service infrastructure through the planning system that the government is also consulting on. “We want to ensure planning supports the faster delivery of the new schools, hospitals, and other public service infrastructure developments which the country needs”. Quite right too.

There are two elements to this. There is the inevitable (relatively minor) PD right provisions, but ‘the key change we propose is to speed up the process of determining these planning applications by providing for a 10 week statutory determination period for development, which will require LPAs to prioritise these decisions over other applications for major development’.

Where does one even start with this? Presumably it would just mean the LPA writing to itself or another public agency to request a time extension at ten weeks instead of thirteen? If it is a good application that accords with the development plan and is well-supported technically and politically why is it not being dealt with in 10 weeks already? This is tokenistic tinkering at it’s worst.