2011 Response to UCO consultation (August)

Introduction

Resident groups usually only arise where a problem affecting residents is sufficient to persuade them to join together to protect and improve their environment. Their concerns almost always arise from the effect of developments that impinge on their ability to enjoy their property. They view the planning regime developed during the last century as a logical mechanism to meet the needs of those promoting development and the concerns of those affected by it. It is their only facility which allows them to influence those changes. Their role in the planning process is to assess the effect of proposed developments on their environment and to try to modify the proposals where the effect appears to them to be undesirable.

The problem facing those managing the planning process is one of balance. Our environment is forever changing, and residents understand that changes are inevitable, but their prime concern is to ensure that developments are so managed that their environment is protected and where possible improved. Ever since the Barker Report of December 2006 argued that development was hindered by the then existing planning regime, governments have endeavoured to change the balance of power in favour of developers whilst trying to protect the interests of the community. This has, however, led to a steady erosion of the planning regime, and now there is a clear danger that the support given by residents, currently aimed at facilitating development in such a way that their interests are protected, is beginning to be undermined. They see many of the changes are turning the planning system into a ‘developers' charter’ rather than a cooperative mechanism for development management.

It is for these reasons that this organisation, representing residents groups from all over the country, is wary of the apparent wish to modify or even dismantle the Use Classes Order. The Order is an attempt to rationalise development, and it is a useful and vital tool. It is not broken and does not need replacement, but it may merit some modification. This response is designed to preserve the structure whilst retaining its usefulness. The use of ‘permitted changes’ allows some flexibility, but too many will destroy its value.

Planning applications for change of use are not common and comprise on average two to three percent of all planning applications. Since over 90% of all planning applications are now determined by planning officers using delegated powers, nearly all such applications are likely to be determined within six weeks of registration. If there is controversy over the change of use, clearly it will take longer, but that surely is appropriate.

NORA members see the planning regime as the tool to facilitate desirable development, to modify development with undesirable components and to resist unacceptable development. They wish to preserve this ability, because they do not want to lose the wonderful environment generations of entrepreneurs and visionaries have created in our country.

An initial draft response to this enquiry was circulated to all NORA members, all modifications were incorporated in the final form of the response and it has been approved by all members.

Responses to questions

1. Should material change of use continue to be considered as ‘development’ and handled through the planning system? If not what alternative approach might be used?

Yes.

The classification in the Use Classes Order is easy to understand and provides logical guidance to the determination of the meaning of ‘material change’. To dismantle it will remove a vital component of the planning regime. If an alternative approach were to be proposed, it would need to maintain a fair balance between developers (householder or commercial) and the community.

2. Is the Use Classes Order an effective deregulatory tool to simplify the approach to managing change of use nationally in the planning system? If not, do you have views on what an alternative deregulatory approach to managing change of use might look like?

It is not clear what is meant by the term ‘deregulatory’ in this context. The Order is a useful guide, which defines the start of the planning process for examining changes of use. It may merit modification but not replacement. If any modifications were to be proposed, they would need to maintain a fair balance between developers (householder or commercial) and the community.

3. The Use Classes Order and associated permitted development rights currently are a national regime for changes of use without planning applications. However, they can be extended locally to meet local needs through Local Development Orders (and in future, through Neighbourhood Development Orders). Is this model effective and is it sufficiently flexible to meet most circumstances?

Yes.

It is essential that the planning regime is a national process, because numerous local regimes would be a recipe for conflict and disaster. We suspect that many developers prefer a national scheme, as it would be difficult and expensive for them to cope with a multiplicity of different local schemes. This suggests that the preferred approach is a clear national framework with the minimum of local variations. Because of the current financial stringency local authorities will not have the funds or the manpower for each one to ‘reinvent the wheel’ on change of use on a local basis.

Nevertheless the use of LDOs does provide some local freedom to modify the regime to suit local circumstances. We have reservations about the proposed Neighbourhood Orders, because we fear they could lead to undesirable planning decisions damaging the Green Belt and diminishing social cohesion in communities.

4. Do you think that the current classes of use in the Use Classes Order are still appropriate?

Yes.

The classification is logical, acceptable and easy to comprehend.

5. The current regime seeks to secure balance between deregulation and protecting the citizen. Has the right balance been struck or should there be more deregulation than currently allowed through the Use Classes Order and permitted development rights?

Yes, the balance is right.

In our opinion further permitted developments would not be in the interest of maintaining the fair assessment of the effect of changes of use. Changes between classes should continue to be limited in order that appropriate assessments can be made, and the balance between the interest of the developer and the concern for the environment can be ascertained. Changes between classes allow scrutiny, for example, a change from a Class A1 use to a Class A5 use in a residential area could be assessed to decide whether the change would be a serious loss to the community and whether the change to a hot food take-away would be a source of social problems.

Some changes between classes have proved useful and acceptable. For example, changes within Class A are only allowed to Class A1 use, and this provides some protection for the retail element in a shopping street. To our dismay some recently permitted development rights to allow changes of use without the need for planning consent have resulted both in unforeseen consequences and predictable problems (see answer to question 10).

Changes within a class are mostly acceptable. In some classes, however, the variety of uses within the class is too great, and it allows ‘material changes’ to escape scrutiny when they really merit assessment. This is a result of the effects of changes in use that had not been predicted. The development of supermarkets from the closure of a group of small retail outlets in a parade currently avoids scrutiny, but the effect on other traders and on the community may be undesirable. There is growth for the supermarket but not for the traders whose stores were closed.

Accordingly we suggest that changes to certain enterprises, which currently can avoid scrutiny, ought to be in a sub-class created by dividing Class A1 into two parts Class A1a and Class A1b. Class A1a would comprise retail outlets with up to 250 sq.m floor space devoted to sales, and those with over 250 sq.m floor space devoted to sales placed in Class A1b. Class A1a would replace Class A1 as the end game for any other member of Class A.

6. Does the current operation of the Use Classes Order go far enough to remove inappropriate barriers to growth and allow for potential for changes of use that boost growth?

Growth is implicit in any material change of use, and growth must inevitably be at the expense of the current use. The ‘barriers’ to growth are the same barriers that apply to all material changes of use. They include planning policies – national, regional and local – the effect on the environment, and the amenity of the community. In some instances the effect on other traders in town and city centres may also be included. Accordingly ‘boosting growth’ would be part of the relevant planning policies applicable to the local planning authority rather than the Use Classes Order. The existence of the Use Classes Order cannot be blamed for being a barrier to ‘growth’, since it is just part of the planning process leading to the granting or the refusal of planning consent. If the material change of use is compatible with the relevant policies, and its effect on the environment and the amenity of the community are acceptable, then consent follows. If it does not and modification is unacceptable to the applicant, then refusal will follow.

One type of growth difficult to control is the current popular change of use, whereby a significant proportion of outlets quickly becomes a dominant element in high streets. For example, over the last 20-30 years we have ‘waves’ of changes to the uses of high street shops, at various times in favour of estate agents, building societies/banks, charity shops and more recently for restaurants and take-aways. Beyond a certain point over-abundance of a particular usage can seriously reduce the vitality and vibrancy of a shopping to the detriment of the community and existing traders alike. Since need is no longer a factor in determining planning consent, it is just the market that decides whether or not the ‘wave’ is successful, but the result is a loss of the diversity, which makes a shopping street successful and viable. It is growth of a particular use but a damaging one. Perhaps the ‘needs’ element should be re-instated to manage this aspect of the change of use.

7. How should ancillary uses be treated within the Use Classes Order?

Ancillary uses of buildings or land unrelated to the primary use merit planning consent. For example, this should apply to residential, industrial or entertainment use on retail premises or retail, entertainment or residential use on industrial sites in view of the consequences for local services and potential nuisance to neighbouring premises. Without control it is easy for an ancillary use to become the main use, so that, for example, a delicatessen with a small cafe use can become a restaurant, which may not be desirable.

8. Are the current permitted development rights relating to the temporary use still appropriate? If not, how do you think they should be amended?

No.

The legislation in the Town & Country Planning Order 1995 Class B permitting certain temporary changes of use in land as described in B2 (markets, motor vehicle races) is abused and causes damage to the environment and nuisance to the community. We consider this section should be repealed, so that those wishing to engage in these activities need planning consent.

9. Should change of use of buildings be allowed on a ‘temporary’ basis without the need for a planning application?

No.

This would lead to ‘creep change’.

Changes of use of a building could entail much investment, so that after six months of a ‘temporary use’ a trader could argue cogently that the investment and effort would all be wasted if the use were not made permanent. Even if the use was in breach of relevant planning policies, this argument would be difficult to refute in court or on an appeal.

10. In addition, the review team would welcome any further views or evidence on how the current Use Classes Order and associated permitted development regime is working.

There are several serious problems consequent on some of the permitted developments that have been implemented in recent times. Several changes have been and continue to be particularly destructive of the environment.

The first is the granting of permitted development rights for the change of dwelling houses to houses of multiple occupancy. To have defined a new category of Houses of Multiple Occupancy was welcomed, because there are important consequences to adjacent properties and to the general environment when a family dwelling is converted into an HMO. To have made changes from Class C3 to Class C4 permitted development has created a disservice to the community, since it cannot comment on the changes nor does the planning authority have any record of the change. This permitted development has removed family homes from the housing market, and in many instance small dwellings that would have been affordable to first-time buyers have also disappeared. Because first-time buyers are at the bottom of any chain of house sales, such a loss stagnates the whole system. Once the proportion of HMO in an area rises to a certain level, the social cohesion in a whole neighbourhood collapses.

The second is the granting of permitted development to allow extensions of premises in relation to the size of the land not occupied by the relevant premises. Property in rural areas may have considerable open land around them, and this permitted development allows virtually unrestricted extensions so that the original building can become obliterated.

Proposals for more permitted development include the freedom to change empty or redundant commercial buildings to residential use, which may result in inappropriate development. Examples would include changes on industrial estates or business parks where there are no facilities for residents and their families, and changes to buildings where the roads are inadequate to cope with increased traffic and parking.

Another proposal to allow schools to be set up anywhere could be disastrous for adjacent communities especially where the road pattern and the lack of open space may be crucial to the protection of the environment and the amenity of the community.

The pressure to dismantle the planning system must not be allowed to damage seriously the need to protect the environment and the amenity enjoyed by residents. After all the residents comprise a key part of the community.

August 2011                                                Alan B Shrank - NORA chairman