Towards the end of last year, the government consulted on one of the most radical and controversial planning proposals of recent history – the introduction of a permitted development right allowing the change of use of buildings from Class E “commercial” uses to residential. The consultation closed on 28 January 2021 and, from the responses published to date, seems to be very unpopular. A wide range of industry bodies have opposed the move, with particularly fervent criticism coming from the British Property Federation, the Construction Industry Council and the Royal Town Planning Institute.
To understand why the consultation has proved so controversial, we need to take a step back and look at precisely what Class E contains. The new use class, which was introduced in September 2020, consolidates a number of former retail, business and commercial uses into a single use class, and then throws in some community uses for good measure. It contains:
- shops;
- restaurants and cafés;
- indoor fitness and recreation;
- financial and professional services;
- offices and light industrial uses;
- medical or health services; and
- day nurseries.
Moving between any of these uses no longer requires planning permission authorising the change of use – although physical alterations to the property may still need consent.
The proposed PDR would allow any building that fell into one of the above categories on 1 September 2020 to be converted to residential without the need for a full planning permission for the change of use – subject to a relatively light touch prior approval process, similar to that currently in place for office to residential conversions, and some very limited geographical restrictions. It is this lack of a robust prior approval process, together with the broad application of the PDR, both in terms of the uses to which it would apply and its geographic reach, that is the reason it is proving to be so unpopular.
Despite the rhetoric surrounding the consultation, the impact of the proposed right would extend far beyond the traditional high street. As drafted, the PDR would apply to the vast majority of high streets, offices, dentists, GP’s surgeries, retail parks, business parks, gyms, nurseries, and light industrial units in England.
The potential application of the right to business and industrial parks has raised real concerns among business improvement districts across the country. On 9 February, the chair of the BID Foundation and the chief executive of British BIDs joined 25 other industry leaders in signing an open letter to Robert Jenrick, the secretary of state for housing, communities and local government, calling for him to reconsider the proposals.
The letter was not sent in isolation. A number of individual BIDs have also responded to the consultation, criticising the proposed PDR. In its response to the consultation, the largest BID in the South East, Manor Royal BID, stated:
“If implemented these new rules would mean even the very largest offices could be turned into flats anywhere in Manor Royal without any controls or requirement to make a planning application.
It is the opinion of the Manor Royal BID that this would have a devastating and lasting impact on the business district and undermine its established use as a location for business and jobs. Introducing housing into Manor Royal in an unplanned way would also have a detrimental impact on business operations as it is likely that controls would need to be put in place to protect the quality of life of residents from the noise and disruption that are part and parcel of a business park like Manor Royal.”
These concerns are far from unjustified. In the form set out in the consultation, the new PDR only allowed the council to consider the following at prior approval stage:
- flood risk;
- transport and access issues;
- contamination risk;
- the impacts of noise from existing commercial premises on the intended occupiers of the development;
- the provision of adequate natural light in all habitable rooms;
- fire safety; and
- the impact on the intended occupiers from the introduction of residential use in an area the authority considers is important for heavy industry and waste management.
There is an additional prior approval matter for conservation areas, which would allow councils to consider the impact of the loss of ground floor use to residential on the conservation area. Outside of conservation areas, however, there is no ability to consider the impact of the introduction of residential uses on the areas in which they are to be located.
As the Manor Royal BID has highlighted, this is a real problem for specialist employment areas, where the introduction of residential uses could impact on the ability of neighbouring businesses to continue to operate because of issues over noise, health and safety, and security. This is particularly apt given the inability of local planning authorities to take the “agent of change” principle in the National Planning Policy Framework, or wider requirements of national planning policy, into account when considering prior approval applications.
The conflict between a local council’s duty to plan for and provide employment uses in their local plans (as set out in the NPPF), and both the introduction of Class E and the new PDR, so far appears to have bypassed the government. The latest planned revisions to the NPPF make no changes at all to its employment or retail policies, either at plan-making or decision-making stages – despite the fact that many of these (including town centre first policies for retail and offices uses) are now largely unenforceable following the consolidation of so many formerly separate uses into Class E.
If successful employment areas are to continue to be able to thrive, moving forward, then it is a conflict that the government cannot ignore much longer.
Nicola Gooch is a partner in the planning team at Irwin Mitchell
