MHCLG consultation on supporting housing delivery and public service infrastructure – Law Society response

The proposals

This technical consultation by the Ministry of Housing, Communities and Local Government (MHCLG) sought views on proposals for:

  • a new permitted development right for a change of use to residential to create new homes
  • measures to provide public service infrastructure more quickly through expanded permitted development rights and a new streamlined planning application process for hospitals, schools and prisons
  • the approach to simplifying and consolidating existing permitted development rights following changes to the use classes order

Our view

Maintaining the existing planning permission process with the requirement to secure a planning agreement to make the development acceptable in planning terms, but with policy changes, would be a better solution than the proposed automatic right for change of use.

The need to balance interests is best achieved through the usual planning process.

The main beneficiary of these proposals would be businesses currently owning commercial premises that might be vacant.

There may be marginal benefit for people wanting cheap residential accommodation because supply might increase, but this benefit could be cancelled out by poor quality. In all other respects, we believe the impacts on communities and local authorities to be negative and undesirable.

We take the view that change should be positively managed through local authorities relying on the planning system which provides the ability for change to be carefully managed so as not to have unintended consequences.

The resulting loss of legal certainty and local democracy is at odds with the plan-led system and the ability of authorities and local communities to positively manage the appearance and operation of their local areas.

We disagree with the proposal that there be no size limit on the buildings that could benefit from the new permitted development (PD) right because the bigger the building, the greater the potential for adverse consequences.

We take the view that big schemes should always go through the planning permission process because of the need to more carefully scrutinise the proposals because changes to a large building can materially change an area.

We would encourage MHCLG to adopt an evidence-based approach as to whether a national size limit should be set with perhaps a trial in a certain area to measure the effects in the first instance and to then compare any benefits to those of existing schemes that have gone through the regular planning process.

We disagree that the automatic right apply in conservation areas because of the potential for the right to undermine the conservation value.

The conservation area designation will be because of its character and/or appearance, and this is determined by local planning authorities (LPAs). The issue of having a “national” as opposed to “local” determination of what can happen will mean that the assessment of why it was a conservation area in the first place is unlikely to have been considered.

The planning for the future white paper sets out proposals for design codes, and community engagement in the planning system to provide certainty and encourage beauty.

We're concerned about the extent to which this proposal would run counter to the aspirations of the white paper.

It's difficult to foresee all matters that might be relevant to consider before changing a development.

A proposed uniform national right as sweeping as this doesn’t take into account any local variations as would ordinarily be considered through the Local Plan process and in determining individual planning applications.

The English planning code is a plan-led one, under the Planning and Compulsory Purchase Act 2004 and the Town and Country Planning Act 1990, so making a planning application with local authorities and planning officers with local knowledge is always likely to lead to better outcomes.

With all the changes that have been recently introduced – either through the PD rights or through changes of use – it would appear appropriate to review PD rights more generally.

However, we think any review should be evidence-led with a proper review of the impacts and benefits of the application of PD rights so far. There is a risk that without that further evidence, further changes could result in unintended and detrimental consequences.

A cautious, considered approach to reviewing PD rights is therefore required, as well as reflecting on what is appropriate for PD rights to deliver.

Planning applications are inherently very flexible in nature and involve the exercise of professional judgement about all relevant planning considerations.

We take the view it is better to use the planning application route but that UK government better resource LPAs to enable them to deal with applications more quickly and efficiently.

Planning is not a tick-box exercise and requires judgement in individual circumstances.

Next steps

This consultation closed on 28 January 2021.

See the consultation on the GOV.UK website

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