by Hazel Nash
Recent announcements by Marks and Spencer, New Look and Debenhams as well as the purchase of House of Fraser by Sports Direct Founder, Mike Astley, signal that Britain’s high streets are struggling to stay relevant and attractive to residents, shoppers and visitors. Unsurprisingly, Chancellor, Philip Hammond, in the recent Autumn Budget (29th October 2018), emphasised the need to reform the planning system to encourage new businesses and homes. Consultation has begun with the publication of the Government’s Consultation Paper entitled: “Planning Reform: Supporting the high street and increasing the delivery of new homes”.
Permitted development rights (PDRs) have long been used as the means of enabling certain types of development and changes of use to be undertaken without the need for planning permission. The Town and Country Planning (Use Classes) Order 1987,SI 1987 No.764 as amended and the Town and Country Planning (General Permitted Development) Order 2015, SI 2015 No. 596 as amended set out various uses of land and buildings and types of operational development respectively that do not require express planning permission. Effectively these developments, subject to the conditions and limitations set out in the legislation, are not considered to pose a risk or harm and therefore do not need to be controlled through the planning determination process. They are, to all intents and purposes, authorised as of right.
Over recent years there has been a steady expansion of the scope of PDRs in order to create a faster and more responsive planning system. The Government’s current consultation paper has identified PDRs as a useful tool in helping to remedy the health of the high street. Indeed, the foreword to the document describes the role of the planning system in creating vibrant and successful high streets in the future as “critical”. Furthermore, the paper links the rejuvenation of the high street with the delivery of new homes. The proposed reforms to the planning system set out in the consultation document are introduced to “support our high streets to meet the demands of the 21st Century consumer and make the best use of land and buildings to deliver more homes”. In total, there are four parts to the consultation:
Part 1: Permitted Development Rights and Use Classes
Part 2: Disposal of Local Authority Land
Part 3: Canal and River Trust: Draft Listed Building Consent Order
Part 4: New Town Development Corporations: Draft Compulsory Purchase Guidance.
Here, my specific focus is on the widening of PDRs under Part 1 to adapt to changes in consumer demands and how this may affect the high street. This Part proposes new PDRs to allow existing premises in typical high street uses to change to a wider range of uses without the need for planning permission. Examples of such changes include allowing more leisure and community uses such as gyms, libraries, health care and office use as well as new homes. This reflects the Grimsey Review 2, published earlier this year, which argued that the future of the high street comprised of a wholescale transformation in which they become central hubs for communities where a range of diverse services and experiences are located together. My earlier blog, Reconsidering and repurposing the High Street, looked in more detail at the Grimsey Review 2. This argument appears to be gaining momentum with data from EG, the real estate intelligence firm, finding that 15 shops in British high streets are closing everyday and landlords of vacant retail units are struggling to find tenants. In fact, latest data from Radius Data Exchange show that just 1.89% of empty shops are relet within three months.
What would be the extent of these PDRs? And how would increasing the scope of PDRs help the high street?
The proposal includes the release of a variety of uses from the need for planning permission by providing greater flexibility to the Use Classes Order which would allow:
- shops (A1) financial and professional services (A2), hot food takeaways (A5), betting shops, pay day loan shops and laundrettes to change to office use (B1);
- hot food takeaways (A5) to change to residential use (C3).
The PDRs would be subject to prior approval by the Local Planning Authority (LPA) and are expected to operate in line with the existing change of use prior approval system including the more restricted timeframes for determination than that under the standard full planning application route – the “56 day rule”.
In order to better support the diversification of the high street, paragraph 1.12 of the consultation suggests a new class or scope to existing use classes A1, A2 and A3. This would potentially enable a mix of uses within these use classes beyond that which would usually be considered as an ancillary or complementary use to the dominant use of the unit.
Perhaps the greatest liberalisation to the current PDRs is the suggestion of deregulating upwards extensions for the creation of homes. This would allow, subject to prior approval, additional storeys to be built above certain buildings, particularly aimed at those in commercial or residential use (A1, A2, A3, B1, C3; paragraph 1.15). Whilst the proposal is limited in specifications and details it moots controlling the scope of such a PDR through either (i) a limitation to the height of buildings within a terrace of two or more joined properties where the roof of the premises extending in the airspace above would be no higher than the main roofline of the highest building in the set of existing terrace or (ii) permit upwards extensions to premises to a height no higher than the prevailing roof height in the locality. The latter of these set of conditions suggested to accompany the proposed new PDR is significantly wider in its scope than the former. In addition, tricky terms which will, undoubtedly, make many local authority planners shudder, such as “locality” and “prevailing roof height” are matters of subjectivity and debate. An already stretched resource could be bound up in semantics similar to those often encountered when determining development in the “open countryside”.
Paragraph 1.18 of the Consultation Paper then recommends limiting the maximum number of additional storeys which could be constructed under the proposed upwards extensions PDR to a limit of 5 storeys from ground level once extended. This is based upon an additional storey not exceeding 3 metres in height. This seems a slightly odd specification, with no clear basis on how these figures were arrived at and contradicts the earlier observation that context, locality and local amenity impacts would all be considerations in the prior approval. Similar to other PDRs, Class Q (agricultural to residential) springs to mind. It will undoubtedly be in the real application of such PDRs and exercising the limitations, conditions and considerations that the scope of such a PDR will be clarified through decisions, appeal decisions and ultimately the courts.
The closing date for the consultation is 14th January 2019 so there is plenty of time to submit responses, provide suggestions and offer opinions and insights. It will be interesting to revisit this consultation in the New Year and monitor the development of these proposals along with the imminent outcome of the current Housing Communities and Local Government Inquiry into high streets and town centres in 2030.
 Development is defined under section 55(1) of the Town and Country Planning Act 1990 as: “the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.
 Office of the Deputy Prime Minister. (December 2005) The Government’s Response to Kate Barker’s Review of Housing Supply. HM Treasury, London, paragraph 2.2. Available online at: http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/05_12_05_pbr05_barker_553.pdf [Correct 14/11/2018].
 Ministry of Housing, Communities and Local Government. (October 2018) Planning Reform: Supporting the high street and increasing the delivery of new homes. MHCLG, London. Available online at: https://www.gov.uk/government/consultations/planning-reform-supporting-the-high-street-and-increasing-the-delivery-of-new-homes (correct 29/11/2018).
 Child, J. (29/10/2018) Shops are taking longer and longer to relet. Available online at: https://www.egi.co.uk/news/shops-are-taking-longer-and-longer-to-let/ (Correct 29/11/2018).
Child, J. (2018) Shops are taking longer and longer to relet. Posted 29/10/2018. Available online at: https://www.egi.co.uk/news/shops-are-taking-longer-and-longer-to-let/ (Correct 29/11/2018).
Commons Select Committee (2018) High Streets and Town Centres in 2030 Inquiry. Available online at: https://www.parliament.uk/business/committees/committees-a-z/commons-select/housing-communities-and-local-government-committee/news/high-streets-and-town-centres-in-2030-launch-17-19/ (Correct 29/11/2018).
Ministry of Housing, Communities and Local Government (October 2018) Planning Reform: Supporting the high street and increasing the delivery of new homes. MHCLG, London. Available online at: https://www.gov.uk/government/consultations/planning-reform-supporting-the-high-street-and-increasing-the-delivery-of-new-homes (correct 29/11/2018).
Office of the Deputy Prime Minister. (2005) The Government’s Response to Kate Barker’s Review of Housing Supply. HM Treasury, London, paragraph 2.2. Available online at: http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/05_12_05_pbr05_barker_553.pdf [Correct 14/11/2018].
Shepley, C. (2016) “The redevelopment of our beautiful laundrette”. The Planner 13/05/2016. Available online at: https://www.theplanner.co.uk/opinion/the-redevelopment-of-our-beautiful-launderettes. (Correct 29/11/2018).
The Grmsey Review Team (2018) Grimsey Review 2. Bill Grimsey, Corham. Available online at: http://www.vanishinghighstreet.com/wp-content/uploads/2018/07/GrimseyReview2.pdf (Correct 29/11/2018).
Town and Country Planning Act 1990, c.8.
Town and Country Planning (General permitted Development) (England) Order 2015, SI 2015 No.596.
Town and Country Planning (Use Classes) Order 1987, SI 1987 No.764.
Dr Hazel Ann Nash, Senior Lecturer in Planning Law, Birmingham City University.
Hazel joined BCU in January 2018. She is a planning and environmental law specialist. She has worked in Central Government and local government in planning policy and development management positions.