26.We were told that local authorities had an important role to play in planning and shaping their communities. As the BPF put it, “the best town centres do not just happen but require active co-ordination at a local level”, and local authorities are central to this. The LGA said councils needed “the tools and resources” to shape vibrant places.” It is evident from its focus on Local Plans that the Government accepts they play an important role in planning development. As we heard, this assumption also runs through both the National Planning Policy Framework (NPPF) and the guidance on the Towns Fund and Future High Streets Fund. Para. 15 of the NPPF states: “The planning system should be genuinely plan-led. Succinct and up-to-date plans should provide a positive vision for the future of each area”. Our predecessor Committee’s report, High streets and town centres in 2030, also concluded that planning was “crucial to high street and town centre transformation” and that councils “should be actively encouraged to develop town centre masterplans and use their powers positively to renew their town centres”.
27.One of the most common criticisms of residential PDRs raised in our evidence was that they undermined this ability of local authorities to shape communities. Rachel Blake, Member of the Environment, Economy, Housing and Transport Board at the LGA, said they were undermining local government’s “place-shaping role” and the “long-term sustainability of neighbourhoods, high streets and communities”. British BIDs, an organisation representing business improvement districts, said the new class MA right would “take control away from local authorities at a time when our high streets’ future depends more than ever on strong local leadership and vision”. The District Councils’ Network (DCN) said the class MA right threatened “to undermine councils’ ability to develop and deliver on the long-term vision of economic stability for local areas, high streets and town centres”
28.According to the TCPA, as a result of the post-2013 changes to permitted development, local authorities now have little control over change in their area, particularly town centres, which makes it difficult “to implement a range of other policy priorities around regeneration” and “creating healthy, walkable, compact neighbourhoods”. The ATCM said uncontrolled conversions to residential use removed one of the few tools available to local authorities seeking to plan development and hindered “new town centre visions and regeneration”. London First said it undermined LPAs’ ability to “curate the balance of uses that they feel is needed for a mixed and sustainable community”.
29.The two main mechanisms by which LPAs can attempt to control the use of PDRs are the prior approval process and Article 4 directions.
30.Some PDRs require developers to submit an application for prior approval to the LPA. This allows the LPA to assess the impact of the development in respect of certain prescribed matters and in some instances to reject the application. For the new class MA right, prior approval will be required in respect of flooding; transport impacts; contamination, impacts of noise from existing commercial premises; adequate natural light; the impact of the loss of ground floor commercial, business and service use on the character and sustainability of a conservation area; impact on future residents in an area the authority considers important for heavy industry, waste management, storage and distribution; and impact of the loss of health centres and registered children’s nurseries. In addition, the Government recently introduced a further prior approval in relation to fire safety. The matters that can be considered under prior approval differ slightly between PDRs. For example, prior approval for the new class ZA right, which permits the demolition and rebuild of some vacant and redundant buildings, permits LPAs to reject an application based on the design and external appearance of the proposed development; no such condition applies to the class MA right. LPAs have 56 days in which to respond to an application for prior approval. If they do not, approval is automatically granted.
31.As Clifford, Ferm, Livingstone and Canelas explained, since “prior approval is more a process of checking against a pre-set list of considerations, a planning officer cannot take a holistic view of a scheme in the way they can with a normal planning permission.” Given this inability to consider a scheme holistically, we were told the prior approval list needed to be more comprehensive if councils were really to have the power to control development in their areas. London Councils said the prior approval criteria for the class MA right were “too narrow and should be further extended in consultation with LPAs”. Ojay McDonald, Chief Executive Officer of the ATCM, said councils should be able to protect ground-floor premises on high streets. At the moment, only ground-floor premises in conservation areas are protected. Sarah Bevan, Programme Director, Planning and Development, at London First, called the omission of adequate private amenity space “a real oversight” and said that unit mix should also be included. The TCPA asked for the inclusion of design, the health and wellbeing of future residents, access to greenspaces and contribution to the Government’s zero carbon target. Mark Worringham from Reading Council cited such omissions as “the impact of the loss of commercial floorspace” on the local economy and “the types of home provided” and the “provision of outdoor amenity space”. The British Retail Consortium (BRC) proposed that the impact on the commercial viability of a high street or town centre be added to the list of prior approval.
32.There was concern, however, that the longer the list of prior approval criteria, the more like the traditional planning process it becomes and the less useful it is as a tool for speeding up planning decisions. City of York Council said the “vastly expanded use” of prior approval had “introduced matters of judgement into the PDR regime” and so arguably moved PDR beyond its traditional role within the planning system. Mark Worringham, whilst welcoming recent additions to prior approval, acknowledged that the longer the list got, the less obvious became the rationale for not dealing with applications through the full planning system. As Reading Council pointed out, if prior approval covered all the points of concern, there would be no justification for not subjecting these developments to the fully planning permission process. Given the complexity of the prior approval process, Rachel Blake from the LGA wondered “why we would not want it to go through the planning application process” instead. London Councils said many of the “new prior approval processes will be of an equivalent complexity to that of a planning application”.
33.As a result of the increased complexity of the prior approval process, many witnesses also raised concerns about the burden permitted development was placing on council resources. In partial recognition of the problem, the Government has said it will introduce secondary legislation “at the first available opportunity” to increase the prior approval fee for the class MA right to £100 per dwellinghouse up to a maximum of £5,000. The evidence from local government representatives agreed, however, that even with the increase the fees were not enough. Mark Worringham from Reading Council said they did not “cover the cost of determining” the application, although he recognised this had become more of a problem as the list of conditions had grown whilst also welcoming the fact that it had grown. Reading Council said it had lost an estimated £1.53 million in planning application fees since the introduction of residential PDRs. London Councils said the fees should be “commensurate with the work involved”.
34.The prior approval process is the principal mechanism by which local planning authorities can control permitted development in their areas, and we welcome the recent inclusion of more criteria, but we are concerned about its increasing complexity and the consequent impact on councils’ resources. This tension—between setting necessary limits on the PDR regime and the negative impacts of greater complexity—is difficult to resolve. The efficacy of permitted development depends on whether it can speed up planning decisions and make the outcomes more predictable for developers. The expanded use of prior approval unavoidably compromises its ability to do this. It also places a burden on local authorities that is not commensurate with the fees charged, and at a time when their resources are already strained and they are therefore not equipped to provide a quick service.
35.As we have already recommended, the Government should review the role of permitted development rights in the planning system. As part of that review, it should consider how to amend the prior approval process to both simplify it and give local authorities the tools they need to shape their communities in line with Local Plans. In addition, the Government should calculate the cost to local authorities of processing prior approval applications and increase the fees accordingly.
36.Article 4 of the 2015 Order allows LPAs to consult with their local communities about whether to withdraw particular PDRs over a specified area. Schedule 3 to the Order states that a local authority may apply a direction where it considers development “would be prejudicial to the proper planning of their area or constitute a threat to the amenities of their area”. Where an Article 4 direction is in place, the specified PDRs no longer apply and a full planning application must be submitted. In August 2019, some 57 LPAs in England had applied Article 4 directions in their area. According to the NPPF, they “should be limited to situations where this is necessary to protect local amenity or the well-being of the area”.
37.Article 4 directions require consultation and are costly to secure. Councils are also liable for the commercial impact on a developer of depriving them of their right to develop unless they give a year’s notice. Since the liability of an immediate Article 4 is unlimited, in practice there will always be at least a year between the introduction of a new PDR and the first directions taking effect. Moreover, though Article 4 directions are confirmed by LPAs, the Secretary of State must be notified and has wide powers to modify or cancel most directions at any point.
38.In January 2021, the Government launched a consultation on proposed changes to the NPPF that would have further restricted the circumstances in which a local authority could apply an Article 4 direction. Under the changes, where a proposal relates to a change of use to residential, directions would be limited to situations “where this is essential to avoid wholly unacceptable adverse impacts”, or, alternatively, “where this is necessary in order to protect an interest of national significance”, and “in all cases” be applied “to the smallest geographical area possible”.
39.There was a lot of concern in our evidence about the Government’s proposals to restrict the use of Article 4 directions. Mark Worringham from Reading Council said the proposals set a bar for their use that would be “almost impossible” to clear except in exceptional circumstances. James Wickham, representing the London Property Alliance, said if the Government made one change it should be to scrap its proposals to restrict the use of Article 4 directions as the current rules had “worked reasonably well”. London Councils said the proposals would “almost completely nullify” Article 4 directions and called on the Government to enable councils to make greater use of them, rather than further limiting their use. The TCPA said they were a “crucial tool for local authorities” and the Government, instead of restricting their use, should amend the wording in the NPPF to reflect that in schedule 3 of the 2015 Order. Brighton and Hove City Council said the existing wording was “well-established”, “effective” and “appropriate” and pointed out that the Secretary of State already had powers to modify or cancel a direction where necessary. Policy Exchange welcomed the proposals, however, but on the same grounds that others criticised them. It said Article 4 directions would “become the exception rather than the rule, as seems originally intended”.
40.The BRC criticised the time it took, under the existing regime, to implement an Article 4 direction. It said the process could be “time consuming” and “expensive”, “with the process potentially taking a year and requiring approval by the Secretary of State”. It said a “significant amount of harm can occur in a year through inappropriate changes of use” and recommended the Government reduce the time it takes to implement directions “so that local communities are better able to use planning mechanisms to protect local areas from harm”. This chimes with what our predecessor Committee said in its 2019 report, High streets and town centres in 2030, in which it concluded that Article 4 Directions did not “give councils adequate ability to remove PDRs quickly and without liability to pay developers compensation” and recommended that where PDRs conflicted “with particular designations in the Local Plan or other established planning documents, councils should be given greater freedom to suspend PDRs in the affected area.”
41.In oral evidence to our inquiry, the Minister said the Government wanted “to retain the opportunity for Article 4 exemptions” but was keen to see them used “in a targeted and measured way.” Simon Gallagher, Director of Planning at MHCLG, said they should be used “only in certain limited circumstances” and acknowledged that even the current wording was “quite restrictive”. When asked if the proposed new wording would make them effectively impossible to apply, the Minister disagreed but noted that the Department was still working through the responses to its consultation to the proposed changes. Simon Gallagher said he did not think it was “designed to be quite as narrow” as that but that “we have heard that point and that is part of the representations we are considering”.
42.In July 2021, after the evidence-gathering phase of our inquiry, the Government announced the outcome of its consultation. The proposal has been amended to clarify that a direction may be applied to prevent “the loss of the essential core of a primary shopping area”. The full text of the revised paragraph 53 will now read:
The use of Article 4 directions to remove national permitted development rights should:
43.Local councils should be able to protect certain areas from permitted developments rights where they have legitimate concerns about the impact on town centres, high streets and commercial centres. We welcome the amendment to the proposed changes to the National Planning Policy Framework clarifying that Article 4 directions may be applied “to prevent the loss of the essential core of a primary shopping area”. This is an improvement on the original proposal, although it is too early to say if it goes far enough. It is also not clear why the Government feel it necessary to amend the current wording or what problem it is trying to fix. In addition, we still believe that councils should not have to wait one year before being able to apply a direction without also being liable to pay compensation to developers.
44.The Government should clarify why it considers it necessary to amend paragraph 53 of the National Planning Policy Framework, and set out how the new wording addresses the issues it is seeking to resolve. In addition, we recommend that the Government monitor whether the changes to paragraph 53 give councils the power they need to protect high streets and town centres from permitted development rights for change of use to residential. If the evidence suggests they do not, the Government should amend the wording again to give councils greater freedom to restrict the use of PDRs in certain areas. We also recommend that the Government allow councils to apply Article 4 directions more quickly without having to pay compensation to developers.
60 British Property Federation (); [Rachel Blake, Mark Worringham]; Local Government Association (); London Councils (); South East Strategic Leaders (SESL) (); Reading Borough Council (); Town and Country Planning Association ();
61 British Property Federation ()
62 Local Government Association ()
63 British Property Federation (); Institute of Place Management (); District Councils’ Network (); British BIDs ()
64 MHCLG, National Planning Policy Framework, (February 2019), p. 8
65 Housing, Communities and Local Government Committee, Eleventh Report of Session 2017–19, , HC1010, p. 4
66 Institute of Place Management (); Levitt Bernstein (); District Councils’ Network (); Town and Country Planning Association (); London First (); Association of Town and City Management (); [Rachel Blake, Mark Worringham]; [James Wickham]; Dolphin Living (); London Councils (); London Borough of Bromley (); Tunbridge Wells Borough Council (); Professor Tony Crook (Emeritus Professor at The University of Sheffield); Hon Professor Vincent Goodstadt; Emeritus Professor Christine Whitehead; Emeritus Professor John Henneberry; Professor Nick Gallent; Hon Professor Janice Morphet; Professor Matthew Carmona; Professor Cecilia Wong; Professor Malcolm Tait; Professor Gavin Parker (); The Heritage Alliance (); British BIDs ()
68 British BIDs ()
69 District Councils’ Network ()
70 Town and Country Planning Association ()
71 Association of Town and City Management ()
72 London First ()
74 ; Crawley Borough Council ()
75 Clifford, Ferm, Livingstone and Canelas ()
76 Town and Country Planning Association (); London Councils (); [Mark Worringham]; [Sarah Bevan]; British Retail Consortium ()
77 London Councils ()
79 , para 7.8
81 Town and Country Planning Association ()
83 British Retail Consortium ()
84 City of York Council (); London Councils ();
85 City of York Council ()
87 Reading Borough Council ()
89 [Matthew Davis]; [Sarah Bevan]
90 , paras 7.11 and 7.18
91 [Mark Worringham]; London Councils (); Reading Borough Council (); London Councils ()
93 Reading Borough Council ()
94 London Councils ()
96 MHCLG, , (July 2020), p. 14
97 , para 53
99 MHCLG, , p. 20
100 MHCLG, ;
101 London First (); Levitt Bernstein (); Clifford, Ferm, Livingstone and Canelas (); [Mark Worringham, Rachel Blake]; London Councils (); Local Government Association (); Reading Borough Council (); Town and Country Planning Association (); CIH (); Brighton & Hove City Council (); London Property Alliance (); Dolphin Living ()
104 London Councils ()
105 Town and Country Planning Association ()
106 Brighton & Hove City Council ()
107 Policy Exchange ()
108 British Retail Consortium ()
109 Housing, Communities and Local Government Committee, Eleventh Report of Session 2017–19, , HC1010, para 98
112 HC Deb, 1 July 2021, col [Commons written ministerial statement]