26th January 2021
Consultation Response Sent By Email From The Head Of Planning Policy And Economic Development.
Dear Sir/Madam,
Supporting housing delivery and public service infrastructure consultation
Thank you for your invitation to make a representation on the government’s consultation on the ‘Supporting housing delivery and public service infrastructure’ that is open for consultation between 3 December 2020 and 28 January 2021.
The consultation seeks views on proposals to provide a new permitted development right for the change of use from Commercial, Business and Service use (Use Class E) to residential (Use Class C3) to create new homes, measures to support public service infrastructure through the planning system, and the proposed approach to simplifying and consolidating existing permitted development rights following the recent changes to the Use Classes Order.
This letter refers to questions that have been posed within the consultation document and is the Council’s formal response to the proposed changes to the planning system.
Question 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)?
No.
The proposed permitted development rights would grant consent for changes of use that could ultimately deliver up to 150 homes within a single building without triggering an Environmental Impact Assessment (EIA). Such large schemes will increase pressure on existing infrastructure and would ordinarily be expected to make a contribution towards affordable housing and other social infrastructure through the section 106 legal obligations. In the short term, the impact on affordable housing delivery may be small given that there may be a temporary rise in the affordable housing threshold to either 40 or 50 homes as described in a previous consultation[1]. We also recognise that the government has consulted on proposals to include changes of use via permitted development rights into the amended Infrastructure Levy charging regime through the Planning White Paper. However, there is no guarantee that these proposals will be progressed at this stage and not before 1 August 2021. At present, new schemes under these proposals would not contribute to social infrastructure and either through section 106 planning obligations or via Community Infrastructure Levy (CIL), as no new net floorspace would be created.
If the government were to decide to progress this new permitted development right, we would support the introduction of a threshold which aligns with the definition of major development in the National Planning Policy Framework (NPPF). It is considered that this would strike a balance between the rapid delivery of much needed new homes but would not result in the loss of significant affordable housing or social infrastructure contributions.
A second concern with the absence of any size threshold is the quality of the homes that might be created. The Council acknowledges that the Government has sought to address some of the design quality issues associated with previous permitted development rights by requiring adequate natural light (in habitable rooms) and the application of national minimum space standards. We welcome these protections that will prevent some of the worst schemes associated with the existing office to residential permitted development rights, which has led to undersized homes with limited windows in certain cases.
Despite these minimum safeguards, we remain concerned that the proposed permitted development rights would not set the bar high enough in design terms. The lack of a size restriction will allow the conversion of department stores, supermarkets and larger light industrial units to residential without the need for planning control for the first time. These typologies are not easy to adapt to residential use while also ensuring good quality design. The MHCLGs own research concludes in relation to existing office to residential permitted development rights ‘that the larger scale of many conversions can amplify residential quality issues’[2].
The conversion of large commercial premises with floor plans that were never designed to be used for residential use may result in single aspect windows, awkward or unsuitable internal layouts, properties with poor outlooks and minimal access to private amenity space. Whilst this might not be the case for all conversions, the permitted development rights will apply in all cases and it is difficult to reconcile the government’s emphasis on better design and place making through the White Paper with these proposals. The Council believes that retaining planning control for the conversion of larger commercial buildings would safeguard against poor quality design, allowing for the approval of high quality conversions.
A third concern, with the absence of any size threshold, is the potential locations of these new homes, particularly in a rural district such as Wealden. It is noted that many existing buildings that are included within Use Class E (Commercial, Business and Service) are situated in unsustainable locations where there would be a presumption against delivering new homes, particularly at a larger scale. It is considered that the planning system should continue to be plan-led and that consideration should be given to whether conversions of existing commercial premises for ‘major development’ would be acceptable in rural locations.
A final concern relates specifically to the conversion of large retail units to residential and the impact this might have on the vitality and viability of our town centres. A number of Wealden’s town centres rely on a few large retail stores to act as anchor stores. The potential loss of these units would negatively impact the wider viability of those town centres. The loss of control to safeguard these units for commercial development and the potential introduction of dead frontages in our high street’s makes the curation and promotion of our town centres harder at a time of exceptional challenge.
Question 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?
Yes.
More than half of Wealden District is covered by the High Weald Area of Outstanding Natural Beauty (AONB). It is recognised in the NPPF (February, 2019) that the scale and extent of development within these designated areas should be limited and that planning permission should be refused for major development other than in exceptional circumstances. It is considered that these permitted development rights should align with national planning policy in this respect.
We therefore support the retention of planning control for the conversion of commercial, business and service uses into residential in these areas to ensure that the quality of design and the impacts upon those nationally designated landscapes are not harmful. It will also allow the continued consideration of social and economic factors that could impact those who live within designated landscapes, such as rural facilities, services and employment, for example.
Question 2.2 – Do you agree that the right should apply in conservation areas?
No.
It is considered that the primary reason for the inclusion of conservation areas is to ensure that town centres are covered by the new permitted development rights. The Council considers that proposing blanket permitted development rights across all town centres to allow for the conversion of retail and other commercial premises to residential regardless of local circumstances (such as the value of designated conservation areas) could have a negative impact on the vitality of our town centres. It could lead to dead frontages in areas, which are designated specifically for their special architectural or historic interest. The proposals appear to run counter to the principle of a plan led system, by introducing an approach that does not take into account the role and function of individual town centres or their relative strengths or indeed their draw (i.e. historic character).
Where local evidence suggests there is a surplus of retail and other commercial floorspace in a centre, a Local Plan can set an appropriate strategy to allow residential conversions at appropriate locations such as at the edge of town centres. The difference between commercial and residential values means that these proposals are likely to exacerbate the decline of the high street by encouraging an acceleration in loss of retail and other commercial uses to residential. This will have a positive impact on housing delivery in Wealden and may bring more footfall to town centres and we recognise this is an important consideration. However, this would be at a cost in terms of the availability of shops, restaurants, offices and other services that allow our communities to meet their needs locally.
More practically, there will be good quality non-designated historic assets in conservation areas that would then be susceptible to conversion to residential uses. This could lead to the loss of well-designed shop frontages, signage and the architectural/historic characteristics of local high streets. Conservation areas are designated by local planning authorities because of their special architectural or historic interest, and these new permitted development rights may devalue such areas if there is only limited control of design in such locations.
If the government progresses with these proposals, we would suggest an additional requirement for the unit to be vacant for a specified period. The aim of this additional requirement would be to help target surplus floorspace (under Use Class E) and help to prevent otherwise occupied and viable retail and other commercial units from being lost to residential.
Question 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?
Notwithstanding the answer to question 2.2 above, the Council agrees that if the permitted development right is allowed in conservation areas, prior approval of the impact of the loss of ground floor use to residential should be introduced.
However, the proposed provision does raise a number of issues as to the nature of what the Council should assess in this context. For example, does this provision relate to protecting particularly special (but unlisted) historic shopfronts that have conservation value? Would it include consideration of the loss of the commercial use, which contributes to the character and appearance of conservation areas covering high streets? The proposed provision would require further detail to ensure that the matters covered under this provision are clarified.
The Council would also wish to consider other issues associated with the loss of ground floor commercial uses, such as impact it might have on key shopping areas (i.e. town centres). These safeguards already exist in the General Permitted Development Order (GPDO) 2015 for certain changes of use in Classes C, J and M. We would therefore support the inclusion of the local authority’s prior approval ‘where the building is located in a key shopping area, on the sustainability of that shopping area’.
Question 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?
Yes.
It should be noted that the matters set out in paragraph 21 of the consultation document would form part of the considerations for the current planning application process. It should be noted that some matters may require external advice. For example, matters relating to transport would need due consideration by the local highway authority also (i.e. which in two tier authorities, would include the County Council).
Question 3.2 – Are there any other planning matters that should be considered?
Yes.
As explained above, the Council would wish to consider the impact of any proposed changes of use to residential on the sustainability of key shopping areas or the vitality and viability of designated town centres.
The Council would also wish to assess the sustainability and suitability of the proposed locations for residential use. As discussed in our answer to question 1, the growth of new residential development in unsustainable locations (particularly on a large scale) would be contrary to a plan-led system. The NPPF (paragraph 79) confirms that planning policies and decisions should avoid the development of isolated homes in the countryside unless one or more tightly defined circumstances applies. This new permitted development right may lead to the development of isolated homes in the countryside.
The proposal to carve out areas close to heavy industry and waste uses, although supported, do not go far enough. They do not prevent new homes being located in business parks or industrial areas away from other necessary retail/community services. These sites will provide a sterile environment for residential uses and have been assessed previously as being ‘extremely poor locations in terms of residential amenity’[3].
It would be helpful also, if the availability of residential parking and the impact and issues associated with residential car parking in a town centre or high street be considered. This is especially if there is to be no size threshold on changes of use to residential.
Question 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?
Yes.
If the new permitted development rights are to be implemented, prior approval applications will require Council resources to assess and approve. It is considered that the applicant, who would financially benefit from the scheme, should continue to pay for this resource cost. This is a principle that is set out in the government’s recent Planning White Paper, which notes that ‘the cost of operating the planning system should be principally funded by the beneficiaries of planning gain – landowners and developers – rather than the national or local taxpayer.’
Question 4.2 – If you agree there should be a fee per dwellinghouse, should this be set at £96 per dwellinghouse?
No.
This represents less than a quarter of the fee a developer would pay through the traditional planning application process and yet the amount of work associated with processing the prior approval application is unlikely to be significantly lower. The government’s recent White Paper states that ‘planning fees should continue to be set on a national basis and cover at least the full cost of processing the application.’
The existing fee for a full planning application for a new dwelling is £462. This is likely to be a small fraction of the total value generated through the conversion of an existing business premise to residential – a point made in this consultation in relation to the proposed £96 fee. A lower fee is therefore not necessary to incentivise the uptake of these rights and is unlikely to recover the monies required to resource the processing of such applications.
Setting such low fees runs counter to the White Paper’s principle that the beneficiaries of planning gain should meet the costs of the system. A fee of £96 is likely to exacerbate existing resourcing issues within the local authority planning departments, which is an issue the government has stated it wishes to address through a resources and skills strategy.
The Council would therefore wish to see that a fee commensurate with the work that would be involved in dealing with prior approvals should be applied and considered in relation to the scale of the prior approval and the resource required to deal with the application. It is not considered that a cost associated with an application will have any impact in relation to the aim of delivering further new homes.
Question 5 – Do you have any other comments on the proposed right for the change of use from Commercial, Business and Service use class to residential?
The Council supports the general need for more homes and a strategy to help town centres adapt to unprecedented challenges, which we recognise might include increasing flexibility and the role of town centres to support other supporting commercial uses such as cafes, restaurants and offices.
However, the Council is concerned that the introduction of these rights may accelerate town centre decline as landowners understandably wish to maximise the value of their existing assets. We remain concerned that the new rights will deliver poorer quality homes, occasionally in poorly located areas (i.e. isolated homes or where there are limited amenities) and will not make any contribution to affordable housing or other social infrastructure that such schemes may generate a need for. The Council suggests that the government give consideration to the introduction of a size threshold of 1,000 square metres for the new permitted development rights and to introduce further protections to ensure the homes created are in suitable locations and will not have a significant adverse impact on the role of existing town centres.
Question 6.1 – 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?
Yes.
We are concerned that the high values associated with residential uses in Wealden will lead to the loss of retail, leisure, business and service uses across the District. The effect is likely to be felt most acutely in the shopping areas of the District with high residential values, which have largely been exempt from existing retail to residential permitted development rights (as they are often located within conservation areas). This could mean the loss of essential shops and services in our larger villages and towns with only a smaller convenience retail offer retained through the protection provided by the Class F2 ‘local community’ use class.
The danger for our local communities is the loss of local employment or services and the creation of dormitory towns and villages, particularly where there are good connections to London and the South Coast. Our communities will have to travel further afield to access key goods and services. At the same time, these permitted development rights will make limited contribution to affordable housing and/or other social infrastructure that our local communities need.
In terms of the impact on local planning authorities, it is considered that these measures will further reduce our powers to plan and shape the development of our local areas through a local plan process. The reduction in fees is likely to increase existing resource pressures felt within local planning authorities as described under our response to questions 4.1 and 4.2.
Question 6.2 – 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?
Yes.
The lighter touch consideration of the design may lead to the creation of homes that are less suited or do not meet the needs of older communities, or those with a disability. In addition, should retail and services be diminished in our towns and villages then it will be necessary for people to travel further afield. This may impact on those who do not have access to a car, especially in rural areas where public transport is more limited or could impact those who have mobility issues where they are unable to travel distances.
Question 7.1 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?
The Council generally supports the flexibility proposed by government in seeking to aid with the delivery of public service infrastructure and we recognise the significant public benefits these can bring. We support the proposals to allow up to 25% of the footprint, or up to 250 square metres of the building under permitted development. However, we do also recognise that such infrastructure may be located in Areas of Outstanding Natural Beauty (AONB), National Parks or Conservation Areas and therefore, further restrictions may be needed in these areas (i.e. prior approval for landscape impact, or heritage impact for example).
Question 7.2 – Do you agree that the right be amended to allow the height limit to be raised from 5 metres to 6?
The Council has no objection to this change provided the new development is not within 10 metres of the boundary or curtilage of the site.
Question 7.3 – Is there any evidence to support an increase above 6 metres?
The Council has no evidence to support an increase above 6 metres in this case.
Question 7.4 – Do you agree that prisons should benefit from the same right to expand or add additional buildings?
There are no prisons located within Wealden District and therefore we do not have a view on this issue.
Question 8 – Do you have any other comments about the permitted development rights for schools, colleges, universities, hospitals and prisons?
No.
Question 9.1 – 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?
Yes.
The Council agrees with the government’s assessment that greater flexibility in public service infrastructure via permitted development rights could have a positive impact on businesses and communities in making it easier for providers to increase capacity and upgrade building stock to meet the needs of our communities.
Question 9.2 – 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?
Yes.
The new rights may make it easier for existing building stock to be upgraded, to make accessibility improvements that will be beneficial for those with a disability. Benefits of improved educational and health facilities are also likely to have positive benefits on people who share a protected characteristic.
Question 10.1 – Do you think that the proposed amendment to allow prisons to benefit from the right could impact on businesses, communities, or local planning authorities?
There are no prisons located within Wealden District and therefore we do not have a view on this issue.
Question 10.2 – Do you think that the proposed amendment in respect of prisons could give rise to any impacts on people who share a protected characteristic?
There are no prisons located within Wealden District and therefore we do not have a view on this issue.
Question 11 – 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)?
As Wealden District Council is in a two tier system, these proposals are unlikely to have a significant impact on our existing development management processes. The number of planning applications received for this type of infrastructure is likely to be relatively small. For example, new schools and extensions to existing schools would be determined by East Sussex County Council (ESCC) rather than Wealden District Council. The Council would however be an important consultee through the planning application process. We would not support a reduction in the time given to consultees to make representations on the very important development proposals falling into this category, particularly for the determination of complex schemes.
Proposals for public service infrastructure that meet the definition of ‘major development’ are likely to have significant impacts on issues such as highway infrastructure amongst other matters. Whilst they may be few in number, having sufficient time to assess these implications is important to ensure a development is well designed and ultimately delivers for the longer term.
The government should seek to identify the reasons for current delays. If that assessment shows that decisions are being delayed through a lack of resourcing within local authority planning departments, then greater funding should be made available to address this issue. If this is the case, a reduction in the time given to decide the application alone is unlikely to be effective, unless greater resources are in place. Prioritising these, may also impact on the set timescales for considering other applications also.
Question 12 – 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?
The Council supports prioritisation of public sector infrastructure development through the planning system, including the categories outlined in this question. However, we are concerned that the reduction in the time to determine the planning applications, and moreover, the time period consultees have to consider the issues required may not address the root causes of delay that we currently see.
Question 13 – Do you agree the determination period for applications falling within the scope of the modified process should be reduced to 10 weeks?
As already stated, prioritisation of public sector infrastructure is supported by the Council. A reduction in the time a local authority has to decide a planning application from 13 weeks to 10 weeks could be supported in principle. However, the reduction in the time given to decide planning applications alone is unlikely to be effective if it does not address the underlining reasons for existing delays. The government is encouraged to consider additional resourcing to supporting local planning authorities where evidence indicates this would be effective. The Council also supports the government’s stated aim that it will consider the role and resourcing of statutory consultees.
Question 14 – Do you agree the minimum consultation/publicity period should be reduced to 14 days?
No.
Major planning applications for public sector infrastructure could have potentially significant impacts, which should be properly considered and scrutinised by statutory consultees and our local communities. This proposal risks sacrificing proper scrutiny and good design for relatively small time savings in the context of a significant development project.
Question 15 – 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?
Yes.
This is considered to be a small additional administrative burden for local planning authorities and the Council would not object to it.
Question 16 – 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?
Yes.
The Council supports the resolution of key planning issues for other public service infrastructure prior to applications being submitted. We already consult and liaise with the relevant clinical commissioning groups through the plan-making process to understand their infrastructure requirements.
Question 17.1 – Do you have any comments on the other matters set out in this consultation document, including post-permission matters, guidance and planning fees?
No.
Question 17.2 – Do you have any other suggestions on how these priority public service infrastructure projects should be prioritised within the planning system?
Yes.
The government could consider how existing prioritisation methods in the planning system, such as Planning Performance Agreements (PPA), could be used to assist in prioritisation of public service infrastructure projects brought in alongside additional funding for local authorities to deliver the agreed PPA outcomes throughout the planning process. This would be particularly beneficial for all larger schemes, including public service infrastructure projects.
Question 18 – 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?
No.
It is unclear what impact the proposals to speed up decision making will have on the quality of the public service infrastructure provided at this stage, given the existing length of such projects outside of the planning system.
Question 19.1 – 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?
Yes.
The Council agrees that any existing permitted development rights that allow changes of use between uses that now both fall within Use Class E will no longer be required. These changes of use would no longer constitute ‘development’ and would fall outside of planning control (see category 1). Similarly, we agree that no changes are required to be made to permitted development rights unaffected by recent amendments to the Use Classes Order (see category 2).
The Council’s views on the replacement of existing permitted development rights with the proposed new permitted development right allowing changes of use from Class E to residential have been stated in our answers to the questions above (category 3).
Question 19.2 – Are there any additional issues that we should consider?
No.
Question 20 – 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?
Yes.
The Council would support flexibility in allowing betting shops and pay day loan shops to convert to commercial, business or service uses within Class E. Such flexibility could help support Wealden’s key shopping areas. We would not support flexibility in the other direction, given the potential negative impacts an uncontrolled proliferation of betting and pay day loan shops could have on the well-being of our local communities.
Question 21 – Do you agree the broad approach to be applied in respect of category 4 outlined in paragraph 76 of the consultation document?
Yes.
The government have not provided details of specific proposals or changes it wishes to make in regard to permitted development rights falling within category 4 and therefore it is difficult for the Council to provide any detailed comments on this matter.
Question 22 – Do you have any other comments about the consolidation and simplification of existing permitted development rights?
No.
I trust that the above comments are helpful at this stage. If you have any further queries, then please do not hesitate to contact us.
Yours faithfully,
Chris Bending
Head of Policy and Economic Development
[1] Changes to the Current Planning System – Consultation on Changes to Planning Policy and Regulations, August 2020.
[2] MHCLG, Research into the quality standard of homes delivered through change of use permitted development rights, July 2020.
[3]MHCLG, Research into the quality standard of homes delivered through change of use permitted development rights, July 2020