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Mishcon Academy: Digital Sessions - 2020 Planning Roundup: The Story So Far

Posted on 16 September 2020

Mishcon Academy: Digital Sessions are a series of online events, videos and podcasts looking at the biggest issues faced by businesses and individuals today.

In this session our planning team gave a practical overview of the opportunities and pitfalls presented by recent changes in the world of planning, including:

  • Changes to the use class order
  • New permitted development rights
  • An overview of the key themes and proposals arising from the 2020 White Paper - Planning for the Future.

The team highlighted the key elements of the proposals, provided legal insight and commentary on the Government’s approach, and considered the implications for developers, planners and landowners.

Guest speaker Robert Walton QC from Landmark Chambers joined to consider the key themes and issues arising from these existing and proposed regulatory changes.

This live session was held on 8 September 2020. All information was correct at time of recording.

Anita Rivera

Well, a big welcome to everyone to the Mishcon Academy Digital Sessions which is a series of online events, videos and podcasts where we look at the biggest issues faced by businesses and individuals today. There have been numerous changes to the proposed planning system and this webinar aims to provide a really high level roundup of what those changes are and some – definitely not all – of those associated issues arising from them. I’m Anita Rivera. I head up the Planning Team here and I’ll be your host. From the Mishcon Planning Team, introducing to you Tom Barton who is going to discuss changes to the use classes order. Roisin Hogan who will take us through recent new permitted development rights, and Martyn Hanmore who is going to provide a general overview of the planning white paper and highlight some of the proposals and we are also extremely grateful to be joined by Robert Walton QC of Landmark Chambers who will be participating in the Q&A sessions as well as a big part of the discussion but without any further hesitation I would like to hand over to Tom who is going to talk about the use class order. So, Tom over to you.

Tom Barton

Thanks ever so much Anita. So, yeah. I am going to walk you through the recent changes to the use class order. So, the big one. New use class E. So, this is described as commercial, business and service uses and the intention was all the uses that you might find going on in a typical city-centre mixed-use building would all be moved into a single class to allow fluidity of use without needing to apply for planning permission for a change use and what is included in there is shops, financial and professional services, cafes and restaurants, offices, health centres, creches, nurseries and gyms. So, let’s have a look at the next one, use class F1 – learning and non-residential institutions. So, that’s things like schools, training centres, museums, public libraries, public courts. All of these kind of uses that have a high cultural value but which aren’t necessarily particularly high yielding. Next up, use class F2. This is local community uses. Shops of no more than 280 square metres selling essential goods including food, at least 1 kilometre from another shop. Uses within F2 are halls and community meeting spaces, indoor and outdoor swimming baths, skating and outdoor sports. And last but not least, the use class which isn’t strictly a use class. So, sewage areas. So, this is uses that are considered to be without classification. In there now we’ve got public drinking establishments, formerly A4. Takeaways, cinemas, concert halls, bingos and dance halls. And now I’d like to invite Rob and Anita to come back and join us.

Anita Rivera

Hello. Thanks very much. I think Rob – let’s talk about conditions. There is so much case law on conditions seeking to limit the uses of that consent. And this sounds like it’s going to be a field day yet again. The interpretation of old conditions on new consents and I am just wondering, while the Government is seeking to expand flexibility, the likelihood is that Local Authorities will seek to constrict it as much as they can. What problems do you see being faced by developers with Local Authorities who seek to do that?

Tom Barton

The way I look at it is twofold. One we have to look at existing permissions and see whether there are restrictions in those conditions that actually stop you changing from a particular use to another, even though you might be able to do that through the use classes order now. And then secondly of course it’s what Authorities will seek to do in the future when they grant planning permission and whether they take an approach that’s perhaps more restrictive than perhaps the Government is wishing for at the moment. And as you say, there’s a whole raft of case law on how you interpret existing conditions. It will be a case by case piece of work to see what the precise wording of that condition says.

Anita Rivera

Yeah. Exactly and I think – you know – also because there are policy constraints to the ability to impose a condition that’s not purely related to the consents. Particularly when the Government initiative is to actually increase kind of flexibility. Well, we’re going to chug on through. I’d like to introduce next Roisin, who is going to talk about permitted development rights.

Roisin Hogan

So, good afternoon everyone. I hope you are all well. So, PD rights allow building works and changes of use to be carried out without the need for planning permission. This light-touch regime usually requires certain matters to be approved by the Council before a PD right can be exercised and this is known as prior approval. This year we have seen Government respond quickly and introduce PD rights as a reaction to Covid and the resulting economic downturn. These new rights allow restaurants and cafes to operate as takeaways. This right is time-limited and will expire on the 23 March next year. There’s also a right to use land for any purpose for not more than 28 days and this right is also time limited and will expire at the end of this year. And alongside that there’s another right for Local Authorities to hold markets and they can do this for an unlimited number of days and again this right is also time limited and will expire on the 23 March next year. Alongside this the Government has also introduced a number of PD rights to allow residential uses to supplement traditional town centre uses. So, alongside the existing PD right for office to residential conversions, it’s also now possible to add additional storeys to dwelling houses, add additional storeys to commercial, mixed-use or residential buildings to create new flats and controversially, there is also a new PD right to demolish a detached commercial or residential building and replace it with an individual block of flats or a detached dwelling house. So, a campaign group in the last couple of weeks has launched a judicial review challenge against the introduction of these new residential PD rights. The grants of challenge are threefold. They cover the lack of proper consultation and Parliamentary debate, the failure to carry out an environmental assessment and the lack of an appropriate equality impact assessment. There’s a rolled up hearing that’s due to take place in October. The Judge will decide (1) whether to grant the campaign group permission to take the JR challenge and then will go on to actually hear the substantive JR challenge if permission is granted. So, I will now ask Rob and Anita to re-join to discuss some of the wider impacts of these PD rights.  

Anita Rivera

Thanks Roisin. If you’re a Lawyer you probably have read the grounds for the JR challenge and I have to say, they were quite persuasive and compelling. Robert, what do you think about the strength of that challenge that’s been launched?

Robert Walton

I think there is – definitely a robust defence can be put in. What they’ve got to show just in very brief terms is that the first ground is that the legislation is a plan or programme for the purposes of the SEA directive and I think they’ve got some difficulty on that just because it doesn’t seem to me to meet the definition. But we’ll see how that goes. The other grounds, for example a lack of consultation – absolutely. Even if that can be proved and all that’s required is a witness statement from the Secretary of State saying, ‘I did take that into account’. Well, where do we go from there? Even if it got quashed, I think absolutely. We can see the Government’s intention here and so slightly ironically despite the lack of consultation, even if there were further consultation it would be quite surprising wouldn’t it if the Government didn’t come up with something very similar to what they’ve got on the table already.

Anita Rivera

So, Tom and Roisin have just talked about the changes to planning law which have already come into force and we’re now going to focus on the changes that are proposed so that are still the subject of some consultation. I’d like to hand over to Martyn who will be discussing the white paper. So, Martyn over to you.

Martyn Hanmore

Hi everybody. Thank you for joining us. I’m talking about the Government’s white paper which is entitled ‘Planning for The Future’. So, the white paper, it’s divided into three what it calls pillars. The first one is called ‘Planning for Development Plans’ and this is a collection of proposals that are really set to shake up the way that the plan making system works. The way that the white paper proceeds really is to look at the heavy burden on Local Authorities of preparing a development plan. They don’t have a track record of getting plans in place that’s particularly fantastic and so the white paper proposals effectively fillet out elements of the plan making process that are riddled with problems, that cause some of the longest delays or the biggest debates and anywhere they can, their proposals are really just to chop those elements out of the system altogether. Where there are difficult issues that can’t simply be chopped out of the system, the idea is to hoover these up to a national level. To remove them from the Local Authority’s remit and take centralised control over some of the really critical aspects of development plans. The second one is called ‘Planning for Beautiful and Sustainable Places’. It’s difficult to define what planning for beauty really means but when you look behind that I think that actually there are some powerful ideas built into what the white paper is proposing. The other central plank of pillar 2 is all about simplifying the environmental assessments that are needed to get to the stage of having planning permission. Unfortunately, we don’t have a lot of detail yet on exactly how that simplification is going to happen. We’ve got very bold statements of wanting to sweep aside all of the red tape and the unnecessary process. All I can say at this stage if we could get to an outcomes-focused environmental impact assessment and other technical assessment regime that there is scope to significantly improve on what has become very paper driven, in some cases check box, often literally check box exercise. The last piece is the ‘Changes to Infrastructure’ and these are really, really important. They’ll affect every scheme. The proposal is to take seal and section 106 and mash them together into a single combined development tax effectively. And the really, really important thing about that proposal is that it includes affordable housing within the seal type tax. So, at that point if I can invite Rob and Anita back to your screens.

Anita Rivera

I’d like to kind of discuss three of the pillars. So, a fundamental question for each one of the three pillars. Robert, what do you see the role of the appeals process changing under more kind of rules-based development management system?

Robert Walton

So, this rule-based situation is, is absolutely that the aim is to you know, when the plan is adopted people know what’s coming. And if you can have a design guide alongside that, prepared for example at a local level, then somebody should be able to sit down with those at the top and pretty much envisage what’s coming forward. The rules should get rid of so much of that debate at appeal stage as to whether the building is in fact a bit too close to. If there’s someone saying, ‘Look 10 metres back at 3 storeys in height is fine’ then you do risk everything. But then there will still be that element of ‘Well, does it comply with what we’re trying to see here by way of good design?’ so hopefully less, but still some I fear.

Anita Rivera

Well, that kind of leads quite nicely into this concept of beauty.  You know, historically these design guys. I mean neighbourhood planning has basically been the forefront of creating great design guides. Widespread adoption of a design guide is really ambitious. What lessons do you think that developers should carry from neighbourhood planning successes in terms of garnering local support for design guides that basically support their developments?

Robert Walton

I think it’s always going to be engagement isn’t it at local level, if it looks like there might be a design guide coming forward at that very local level. But there is the fallback situation where there isn’t a neighbourhood level design guide coming forward then actually it's going to default back ultimately to the national design guide. So, developers shouldn’t be too concerned about that process stalling at local level but if they get traction with it and get engagement properly it’s only going to help.

Anita Rivera

So, coming onto the final pillar, the third pillar which I think a lot of our audience will be incredibly interested to talk about, is infrastructure. Do you think that there’s going to be some sort of role for quid pro quo in the form of agreements between developers and Councils which potentially, even in advance of submitting their application is sorted out to, basically ensure that some of the funding is allocated, even if borrowed if necessary, early enough to meet the need and actually benefit a specific development.

Robert Walton

So, this is all about front loading and your point there about borrowing, the encouragement for Councils to borrow to get the infrastructure in place ahead of development coming forward and then if the money’s recovered from developers further down the line so be it. It’s that heavy lifting that’s going to be absolutely critical. I think there is a real problem in terms of putting that all on Local Authorities or, currently being proposed. What we need is national oversight to ensure that Authorities are delivering at the local level upfront because that then de-risks everything in terms of delivery and the impacts that can arise if it’s not in place. So, they are going to need some help to get to whether it’s the Homes England approach, whether it’s Growth Deals. It’s those Growth Deals infrastructure, those sorts of things have to be put in place to make this successful.

Anita Rivera

We are coming to the end of our time but could I invite Tom and Roisin back? I would just like to say a huge thank you to the audience for attending this session and also to our speakers. Martyn, Tom, Roisin and to our lovely guests Robert Walton. Thank you so much for joining us today. Thank you hugely again for all attending.

The Mishcon Academy Digital Sessions.

To access advice for businesses that is regularly updated please visit Michcon.com.

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