Supporting housing delivery and public service infrastructure – Braintree District Council’s consultation response
Q.1: Do you agree that there should be no size limit on the buildings that could benefit from the new permitted development right to change use from Commercial, Business and Service (Class E) to residential (C3)? Please give your reasons.
No. Whilst the Council’s broader concerns in relation to the new right proposed are set out in more detail in response to Q.5 below, it does not seem well-considered to impose no size limit on the buildings that could benefit from the new permitted development right, as this will inevitably lead to an increased number of buildings being eligible for conversion to a residential use, without genuine regard to the acceptability of their location or the impact that their conversion would have on local infrastructure.
There is also concern that many of the largest commercial buildings are situated on the outer peripheries of settlements, within retail parks and business parks, where there are typically other uses present, such as industrial uses, that can conflict with residential amenity. Equally, conflicting uses can occur within high-streets and town centre locations, such as between a residential use and uses associated with the night-time economy, with bars, nightclubs and pubs all being potential generators of noise into the early hours of the morning. The consultation sets out several matters for prior approval in relation to residential amenity, including noise impacts, living conditions, and the acceptability of introducing a residential use in areas of heavy industry and waste management, but from past experience of existing permitted development rights, such matters are typically treated with a light-touch in the absence of plan-led approach to the assessment. The less rigorous approach to the prior approval matters is also borne out of the fact that such permitted development rights are inherently intended to be permissive and there is an implied acceptance that the change of use will be appropriate in most circumstances.
Additionally, whilst the proposed matters for prior approval have regard to the impact on future occupiers, there is no reference to managing the impact upon existing, adjacent premises and users. For instance, introducing large amounts of residential accommodation adjacent to, or within the vicinity of, a bar or nightclub could lead to additional licensing restrictions being placed on an established licensed venue. Essentially, the agent of change principle has been disregarded, which could in turn affect the viability of businesses.
The consultation acknowledges that ‘some’ retail and office buildings can be substantial in size and that as a consequence their conversion could result in a significant number of homes ‘the impacts of which would be managed through prior approvals’. Yet, despite this statement, there are appears to be almost no management of the wider-reaching impacts through the proposed matters for prior approval. In particular, there would be no provision for securing planning obligations and mitigation measures through S.106 legal agreements, a devastating omission given the already stretched capacity of local infrastructure across the country and the severe shortage of affordable housing.
It is noted that the new right proposed would not apply to development that is screened as requiring an Environmental Impact Assessment (EIA). However, this is likely to have a limited impact on the overall applicability of the new right proposed, seeing as it is highly unlikely that the conversion of an existing building, irrespective of its scale, would require an EIA.
Moreover, by not limiting the scale of the buildings to which the new right is proposed to apply to, there is concern that the subsequent planning applications for the external alterations to the buildings will become an exercise of damage limitation. For instance, it is difficult to envisage how a large supermarket building could be readily converted to a large number of dwellings when its scale and construction would not lend itself to a legible residential frontage, internal sub-division, or place making principles in general. There will ultimately be outcomes that are contrary to the Government’s other notable objective, one which has been labelled as a pillar of the future planning system, the achievement of good design and beauty. This is something that has been a major critique in respect of the current permitted development right for the conversion of offices to residential. Internal amenity is of course crucially important and it is acknowledged that there has been some positive progress on this matter, but the quality of the overall living environment is just as important and this encompasses much more than internal arrangements. More homes should not entail poor quality homes.
Q.2.1: Do you agree that the right should not apply in areas of outstanding natural beauty, the Broads, National Parks, areas specified by the Secretary of State for the purposes of section 41(3) of the Wildlife and Countryside Act 1981, and World Heritage Sites? Please give your reasons.
If the new right proposed is to be progressed, it is agreed that these well-established restrictions should be carried forward.
Q.2.2: Do you agree that the right should apply in conservation areas? Please give your reasons.
In the absence of further detail, there is concern about the application of the proposed right in conservation areas. This is because in their current format such permitted development rights do not typically apply to contexts where there will be direct heritage impacts resulting from the changes of use. From the list of prior of approval matters set out within the consultation, it seems apparent that there would be very limited scope, or no scope, to consider such heritage impacts, other than the loss of ground-floor retail space.
It is therefore unclear how local planning authorities will be able to discharge their statutory duties under s.66(1) and s.72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990. There will, for instance, inevitably be situations where non-listed buildings within conservation areas are converted to a residential use through the proposed right despite not preserving or enhancing the character or appearance of the conservation areas or the significance of listed buildings, not necessarily always through the change of use in itself, but certainly through the subsequent external alterations required to facilitate the change of use.
These unintended consequences are fundamentally important to consider as the preservation of our heritage assets is crucial to the achievement of sustainable development. Within the context of this consultation, it is particularly pertinent to acknowledge that heritage assets promote tourism and investment into local economies, the value capture of which could be hindered by the dilution of our historic places and their diverse offerings.
Q.2.3: Do you agree that, in conservation areas only, the right should allow for prior approval of the impact of the loss of ground floor use to residential? Please give your reasons
It is not entirely clear what the intention and rationale behind the inclusion of this matter for prior approval is. That is not to say that commercial uses and retail frontages are not important to conservation areas, but rather they can be equally as important outside of conservation areas. There is also a need for clarity on how the impact of the loss of the ground floor use should be considered by local planning authorities without any policy basis to direct the assessment. For instance, would it allow for the consideration of likely aesthetic changes required to a building or its façade? Or would it simply be in relation to the principle of introducing a residential use at the ground floor level? These are notable questions, the answers to which will have a direct impact upon the implications, scope, and usefulness of making the impact of the loss of the ground floor use to residential a prior approval matter in conservation areas.
Therefore, at this moment in time it is not possible to agree to the question posed, given there is a need for further clarity on the remit and intention of this prior approval matter.
Q.3.1: Do you agree that in managing the impact of the proposal, the matters set out in paragraph 21 of the consultation document should be considered in a prior approval? Please give your reasons.
As a starting point, notwithstanding the response to Q.2.3 above, the list of prior approval matters under paragraph 21 does not include consideration for the loss of the commercial ground floor use within conservation areas.
Compliance with the Nationally Described Space Standards is not listed either, however, it is recognised that the consultation is explicit in that this will be a mandatory requirement. This is a positive change, but it could have been introduced much sooner, or even right now, rather than the 6 April 2021. An opportunity has been missed to ensure that a larger number of future residents benefit from a good standard of internal living space.
That aside, the matters for prior approval set out generally reflect what can already be considered under similar existing permitted development rights.
Q.3.2: Are there any other planning matters that should be considered? Please specify.
There a large number of planning matters necessary for the achievement of sustainable development that will not be addressed or considered under the proposed right, due to the fact that there is a prescriptive list of narrow considerations and there is no ability to apply development plan policies to the assessment.
Nonetheless, one particular planning matter which Braintree District Council considers must be given consideration is the requirement for the developers to mitigate against the direct impacts of the resulting developments on local infrastructure. This is because the future residents are no less likely to generate a need for education places, affordable housing, NHS services, and road or public transport infrastructure, than those future residents of developments consented through express planning permission routes. It would also be utterly perverse for a doctor’s surgery to be converted to a residential use, as would be permitted, without off-setting the loss of such a vital part of local infrastructure. Yet, for some reason, this is not as important as protecting pubs.
In essence, the Government needs to act upon the issues it has already acknowledged within the Planning White paper, with a good starting point being to hold developers accountable for equitable planning outcomes, so that those who benefit most from the planning system pay their fair share towards the sustainable delivery of it.
Q.4.1: Do you agree that the proposed new permitted development right to change use from Commercial, Business and Service (Class E) to residential should attract a fee per dwellinghouse? Please give your reasons.
Yes, but it should not be capped at the maximum fee for 50 dwellings, which equates to just £4,800 under the current proposal.
Q4.2: If you agree there should be a fee per dwellinghouse, should this be set at £96 per dwellinghouse? Please give your reasons.
No. The intention here is clearly to reflect the fee structure for existing prior approval applications, yet, there was a recognition within the Planning White Paper that the Government will need to increase planning application fees. Likewise, within the same consultation, the Government set out the intention to bring forward a specific Spending Review proposal for the planning system.
As such and in order to ensure that local authority planning teams are appropriately resourced, the fee for this type of application should be set at a level which adequately reflects the time taken to determine it. This would accord with the principles set out in the Planning White Paper. Introducing a new prior approval process, with an insufficient planning fee as proposed, will place an additional and unacceptable burden on local planning authorities.
Q5: Do you have any other comments on the proposed right for the change of use from Commercial, Business and Service use class to residential?
Please specify.
Braintree District Council understands the reasoning behind the need to increase flexibility within our towns and villages. This is because there has evidently been a shift in consumer behaviour over recent years with online shopping proving to be increasingly popular. Likewise, there has been a notable increase in employees working from home. These shifts have undoubtedly been accelerated at pace over the last year in response to the financial impacts of the COVID-19 pandemic and the need to enforce social distancing. There are, as a consequence, going to be an increasing number of vacant units within villages, towns and cities across the country which will be in need of re-purposing. This will also, unfortunately, result in many people needing new employment opportunities. For instance, a recent report produced by KPMG, titled ‘The future of towns and cities post COVID-19’, has predicted that there could be 400,000 job losses in retail alone.
Therefore, as we begin to emerge from the pandemic over the next year or so, with the continual hope offered by the vaccination programme, careful consideration needs to be given to how we plan for the future, so that an appropriate balance is struck between the delivery of housing, employment, cultural and leisure opportunities when revitalising England’s cities, towns and village centres. The introduction of Class E in the Summer has already dramatically increased flexibility within our high-streets and beyond, by allowing commercial premises to adapt quickly to changing circumstances, with planning permission no longer required to move between a wide array of uses. This flexibility could be undermined by the new permitted development right proposed. There would, for example, be a dramatic impact on property markets which value residential uses above commercial uses, leading to the potential for residential conversions being favoured before other viable commercial uses have even been considered.
The short-sighted approach has to be questioned whether it is the right approach in the long term, as when conditions start to return to some form of normality there will still be a demand for social contact and interaction. People will, for instance, want to return to their shops, restaurants, cafes and gyms. They will also need employment opportunities. To achieve positive transformation there will need to be a mix of uses, including residential, retail, leisure, cultural, and more traditional employment uses, not a homogenous environment comprising of pre-dominantly converted buildings. If the latter future is realised it will be a very dire situation indeed, especially when having regard to the very limited influence that local planning authorities would have over the quality of the resulting environments. As aforementioned, there are many factors beyond internal amenity that contribute towards successful place-making, as has been recognised by the Government within the National Design Guide it published, which sets out 10 detailed characteristics for well-designed places, very few of which would be addressed under the new right proposed.
As an alternative to the proposed permitted development right, Braintree District Council believes that more appropriate measures could be implemented through revisions to the NPPF, in combination with focussed changes to local planning policy. For instance, town-centre boundaries could be redrawn, and a more relaxed approach could be taken to the types of development and uses which are considered to be appropriate to their edges. This would enable a more balanced approach to addressing the issue at hand, without such far reaching implications, whilst also retaining public participation and democracy in the process. To put it bluntly, a planning policy approach would be far better at delivering sustainable planning outcomes than a broad-stroke permitted development right.
An increasing reliance on prior approval processes to deliver new homes is a worrying trend, one which was also embodied within the recent Planning White Paper. It fundamentally undermines the most basic principle of planning law, the primacy of the development plan. How can Braintree District Council, and other local planning authorities in the process of adopting a new local plan, be expected to progress a local plan at pace when basic principles of land use planning are be eroded by legislative changes that have such far reaching and unintended consequences. Local planning authorities are being mustered to adopted up-to-date local plans, but the reality is that changes to the planning system are so frequent at present that it is difficult to do so, with significant changes, like the introduction of Class E, having not even diffused into the NPPF at all yet. The continual piecemeal changes to the planning system are not helpful in the current climate. Local planning authorities are already under significant pressure to deliver economic recovery and this is not conducive with the need to constantly divert resources in order to respond to regular consultations, policy revisions, and legislative changes. If the Government is resigned to reforming the planning system, then it should give serious consideration to bringing the changes forward together, rather than in the current ad- hoc manner.
Some final thoughts, specific to the new permitted development right proposed, would be to allow consideration to be given to the impact on the viability and vitality of rural communities, where say a village shop, café, restaurant, or any other use falling under Class E, can be equally as important as pubs. Applying the proposed right so broadly could lead to previously sustainable locations for new housing being unsustainable. This could be to the detriment of one of the key objectives underpinning the new right, the delivery of additional homes.
Q6.1: Do you think that the proposed right for the change of use from the Commercial, Business and Service use class to residential could impact on businesses, communities, or local planning authorities? If so, please give your reasons.
Yes, but that is clearly the very intention of the proposed permitted development right. The point made by the consultation in relation to the anticipated reduction of planning applications received by local planning authorities is not particularly well- founded, as it infers that all such changes of use would have come forward anyway through express planning applications, something that is simply not true. There would likely be a significant up-take of the proposed change of use and this will not reduce the workload of local planning authorities as claimed.
It should though be made explicitly clear that main priority of Braintree District Council is ensuring the quality of new developments is acceptable, not the number of planning applications received.
Q6.2: Do you think that the proposed right for the change of use from the Commercial, Business and Service use class to residential could give rise to any impacts on people who share a protected characteristic? If so, please give your reasons.
No comments.
Q7.1: Do you agree that the right for schools, colleges and universities, and hospitals be amended to allow for development which is not greater than 25% of the footprint, or up to 250 square metres of the current buildings on the site at the time the legislation is brought into force, whichever is the greater? Please give your reasons.
There are no objections to this approach.
Q7.2: Do you agree that the right be amended to allow the height limit to be raised from 5 metres to 6? Please give your reasons.
This is a very modest increase to the existing provisions and it is not objectionable subject to the imposition of the proposed restriction that the height increase will not apply where the buildings are within 10 metres of the site boundary or curtilage.
Q7.3: Is there any evidence to support an increase above 6 metres? Please specify.
No comments.
Q7.4: Do you agree that prisons should benefit from the same right to expand or add additional buildings? Please give your reasons.
There are no objections to this approach.
Q.8: Do you have any other comments about the permitted development rights for schools, colleges, universities, hospitals and prisons? Please specify.
There are no further comments to add.
Q9.1: Do you think that the proposed amendments to the right in relation to schools, colleges and universities, and hospitals could impact on businesses, communities, or local planning authorities? If so, please give your reasons.
No comments.
Q9.2: Do you think that the proposed amendments to the right in relation to schools, colleges and universities, and hospitals could give rise to any impacts on people who share a protected characteristic? If so, please give your reasons.
No comments.
Q10.1: Do you think that the proposed amendment to allow prisons to benefit from the right could impact on businesses, communities, or local planning authorities? If so, please give your reasons.
No comments.
Q10.2: Do you think that the proposed amendment in respect of prisons could give rise to any impacts on people who share a protected characteristic?
If so, please give your reasons
No comments.
Q11: Do you agree that the new public service application process, as set out in paragraphs 43 and 44 of the consultation document, should only apply to major development (which are not EIA developments)? Please give your reasons.
Yes, if the new public service application process is to be taken forward, it would be appropriate for it to apply to major developments which are not EIA developments.
Q12: Do you agree the modified process should apply to hospitals, schools and further education colleges, and prisons, young offenders’ institutions, and other criminal justice accommodation? If not, please give your reasons as well as any suggested alternatives.
There are no objections to this approach.
Q13: Do you agree the determination period for applications falling within the scope of the modified process should be reduced to 10 weeks? Please give your reasons.
It is understood why there is a desire to reduce the statutory timescales for determining public service infrastructure projects and that the number and frequency of the associated planning applications will likely be relatively few and far between. Therefore, Braintree District Council does not object to the 10 week timescale for the modified process, albeit on the condition that the Government does not have an issue with these applications being prioritised over other major development applications, including those in relation to housing and other commercial projects.
It must also be recognised that the same prioritisation would need to be impressed upon statutory and technical consultees. There are a number of reasons why delays can occur in the determination of planning applications, with outstanding consultation responses being a common contributor, alongside mutual negotiations to ensure a high-quality of design is achieved. The success of the proposed measure will be dependent on sufficient front-loading and efficient, timely engagement between stakeholders.
There were proposals within the Planning White Paper surrounding the reduction of decision timescales for planning application more broadly. Braintree District Council objected to those proposals and would not wish for this current proposal to become a blueprint for the reduction of determination timescales more broadly.
Q14: Do you agree the minimum consultation/publicity period should be reduced to 14 days? Please give your reasons.
Civic engagement is a fundamental tenet of the planning system and major development proposals tend to generate significant public interest. One of the direct implications of the proposed 10 week determination period for public service infrastructure projects is that there will be less time to consult meaningfully with local people. This is a trade-off that the Government will need to weigh-up going forward, but given the nature of such projects, their importance, and their anticipated frequency, there may be a case for reducing the consultation period to 14 days in this particular circumstance.
The quality of the reduced consultation period will though be of great importance. In the summer, as part of the Planning White Paper proposals, the Government promised to bring forward new world-leading, data-driven, digital forms of civic engagement and we look forward with anticipation to further details on when and how this will be achieved.
Q15: Do you agree the Secretary of State should be notified when a valid planning application is first submitted to a local planning authority and when the authority it anticipates making a decision? Please give your reasons.
Concern is expressed at a requirement being introduced to notify the Secretary of State at the Validation stage, as this places an additional burden on local planning authorities. The timescales for determination would be prescribed, so we can therefore see no need to advise on the anticipated timescales for determination. Details of the actual decision and timescales for reaching the decision, could be included within the Council’s PS2 Returns to MHCLG.
Q16: Do you agree that the policy in paragraph 94 of the NPPF should be extended to require local planning authorities to engage proactively to resolve key planning issues of other public service infrastructure projects before applications are submitted? Please give your reasons.
There are no objections to incorporating other public service infrastructure projects into paragraph 94 of the NPPF. Nevertheless, it should also be emphasised that the very premise of a positive and proactive approach is that it is a two-way process, so the responsibility also lies with the Applicant to engage positively and proactively as part of the planning process. Moreover, applicants should be firmly encouraged to utilise the pre-application advice services offered by local planning authorities prior to the formal submission of a planning application, as this is the most efficient and effective way of front loading the planning process and adding value to developments.
The Planning Advisory Service has consolidated a series of guidance documents, referred to as the ‘Pre-application suite’, which highlight the vital importance and many benefits of effective pre-application advice and the positive and proactive engagement it fosters. Crucially, the use of pre-application advice by prospective applicants allows local planning authorities to recover the costs they have incurred in providing the advice, rather than the undesirable alternative of having drawn out negotiations during the course of a planning application, perhaps culminating in a refusal of planning permission, which can be more costly to both parties. Planning
Performance Agreements (PPA) can form another important part of that positive and proactive approach, particularly for the scale and complexity of major development projects related to public service infrastructure.
Q17.1: Do you have any comments on the other matters set out in this consultation document, including post-permission matters, guidance and planning fees? Please specify.
No further comments to offer, Braintree District Council has already made its position clear on planning application fees in response to Q4.2 above.
Q17.2: Do you have any other suggestions on how these priority public service infrastructure projects should be prioritised within the planning system? Please specify.
No comments.
Q18: Do you think that the proposed amendments to the planning applications process for public service infrastructure projects could give rise to any impacts on people who share a protected characteristic? If so, please give your reasons.
No comments.
Q19.1: Do you agree with the broad approach to be applied to the review and update of existing permitted development rights in respect of categories 1,2 and 3 outlined in paragraph 76 of the consultation document? Please give your reasons.
Since Class E was incorporated into Use Classes Order in September 2020, it would be appropriate for the General Permitted Development Order to be updated to reflect the change which has already occurred. There are no inherent objections to the broad approach proposed.
Q19.2: Are there any additional issues that we should consider? Please specify.
No comments.
Q20: Do you agree that uses, such as betting shops and pay day loan shops that are currently able to change use to a use now within the Commercial, Business and Service use class should be able to change use to any use within that class? Please give your reasons.
There are no objections to the approach proposed.
Q21: Do you agree the broad approach to be applied in respect of category 4 outlined in paragraph 76 of the consultation document? Please give your reasons.
There are no objections to the approach proposed.
Q22: Do you have any other comments about the consolidation and simplification of existing permitted development rights? Please specify.
No further comments.
