Where Next for Permitted Development Rights?
Introduced in 2013, Permitted Development Rights for change of use were intended as a tool to address the housing crisis by accelerating the delivery of new homes through the planning system in specific circumstances. But as local authorities increasingly find means to refuse PDR applications, is the standard planning application route the simper option?
Introduced in 2013, Permitted Development Rights for change of use were intended as a tool to address the housing crisis by accelerating the delivery of new homes through the planning system in specific circumstances.
Whether PDR has delivered homes of a requisite standard is a much-debated point and even the greatest exponent of PDR will admit that there have been some notable failures. And as local authorities become more aware of how to thwart unwanted PDR applications, the question of whether PDR has the ability to accelerate housing is being called into question.
In some circumstances, notably in London boroughs, we are finding that the traditional route of submitting a planning application for change of use is not only a more thorough and satisfactory route to a quality conversion, but also a faster one.
Permitted development rights are technically an automatic grant of planning permission which can allow change of use to be carried out through prior approval through the Town and Country Planning (General Permitted Development) (England) Order 2015.
Initially the take-up of PDR was substantial, although not without controversy.
Classes E and MA
The introduction, in August 2021 of Use Class E (which replaced a wide range of commercial, business and service use classes, bringing them into one single Use Class) and Class MA which enables the conversion of Class E buildings to residential use, was technically a significant boost for change of use: colloquially referred to as ‘Class Everything’, it seemed that with the introduction of Class E, few buildings would be exempt from the potential for residential use.
But as Government policy has introduced increased flexibility, local authorities have increasingly pursued a retaliatory path – to the point that in many boroughs PDR applications are regularly stalled.
The implementation of Class MA brought an eight-stage prior approval process and with many of these factors requiring a professional report, the administration connected to a PDR application is considerable.
Furthermore, we have experienced situations whereby change of use applications via PDR are refused on erroneous technical grounds as a result of having been delegated to junior officers who have misunderstood the legislation. In such circumstances, re-submission or appeal are the only recourses – but re-submission could result in another erroneous determination, and an appeal typically adds 78 weeks to a decision, at considerable cost.
Our recent experience in London is that boroughs are increasingly resisting Class MA and can be suspicious of evidence which claims that buildings fall into Class E, which can itself result in change of use being thwarted.
Article 4 Directions
Furthermore, Directions under Article 4 of the General Permitted Development Order 2015 have been used as a tool to prevent change of use since the introduction of PDR. No fewer than 60% of all London councils have Article 4 Directions in place. This compares (according to analysis in Planning in 2021) 28% in the south east, 24% in the East, 7% in the West Midlands, 5% in Yorkshire and Humber, just 3% in the East Midlands, North West and South West, and none in the North East.
The power of Article 4 was increased in the Government’s revisions to the NPPF in July 2021: what was formally the MHCLG tightened the rules governing how local planning authorities may secure exemption from PDR through Article 4, removing the word ‘necessary’ in relation to ‘protecting an area’s local amenity or well-being’, and replacing it with ‘essential to avoid wholly unacceptable adverse impacts’. Paragraph 53 was revised to state that Article 4s should be applied where the loss of a primary shopping area’s essential core would seriously undermine its vitality and viability. The revisions clarified that such a Direction would be very unlikely to cover entire borough centres and that Article 4s should be limited to the smallest geographical area possible and be based on robust evidence.
But despite the bar for Article 4s having been set higher, local authorities are becoming increasingly canny as to their use, creating Article 4 directions on pockets of land throughout a high street for example, as a strategy to prevent conversion through Class MA.
At the moment there is window of opportunity for change of use: some LPAs are currently using Article 4 directions to ban the original Class O change of use, rather than Class MA, as Class O is due to expire on 31 July 2022. In these circumstances, therefore, developers can be more confident in applying for change of use under Class MA until the point at which the LPA introduces the new form of Article 4.
But what is the longer-term future of class MA? Many LPAs, especially in London, have little support for Class MA and consider that the benefits will not outweigh the potential harm caused to town centres and the loss of commercial floorspace. So it would not be surprising to see LPAs introduce a number of Article 4 Directions primarily focused on town centres and employment sites to remove Class MA PDRs.
The need to maintain (or increase) high street vitality is unquestionable but so too is the need to resolve the housing crisis. Class MA had the potential to address this, but with little support from local authorities, its use is severely curtailed and both crises are far from resolved.