How change of use is handled in the planning system.

Transcription

1 How change of use is handled in the planning system. 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? There has to be some means of defining development, and this is defined by Section 55 of the Town and Country Planning Act of 1990 which offers a twofold definition of development as: the carrying out of building, engineering, mining or other operations in, on, over or under the land, or the making of any material change in the use of any buildings or other land In the legal case, Parkes vs Secretary of State for the Environment (1978), comments were made about this definition, stating that, the first half, operations, comprises activities which result in some physical alteration to the land which has some degree of permanence in relation to the land itself whereas the second half use comprises activities which are done in, alongside or on the land, but do not interfere with the actual physical characteristics of the land (Parkes v Secretary of State for the Environment [1978]) However, material is not defined in the act but by the courts, and there is substantial case law on what constitutes material or not. It is vital to judge the impact of a change of the use of the land or building, since adverse impacts on a residential neighbourhood or commercial area have to be kept to a minimum and one way of achieving this is through the requirement for planning permission for a change of use. The planning process enables that impact to be assessed and the use either refused or granted if conditions can be imposed to control the impact to an acceptable level. Impact is measured with regard to the intensification of use as well as cumulative impact, and the character of place. If change of use was not classed as development how would Environmental Impact Assessment requirements apply? Equally, securing S106 contributions would become difficult. The Use Classes Order not only defines uses and those which can be grouped together assessing where a change between these uses might have an impact, but it also grants permission for changes between some uses, where impact is deemed to be less damaging to the environment or to communities. This is important. Where changes of use are allowed between classes, the rationale is that the permitted changes generally constitute an environmental improvement.

2 (Cullingworth and Nadin, 2006) [ 1 ]. The RTPI considers that the system operates well enough through case law as this is fundamental to British planning law, where rules are built up through challenges and the subsequent emergence of case law. The basic premise of British planning law is that the system is discretionary and each application is dealt with on merit, providing great flexibility in the system to the advantage of applicants and regulators. It would be unnecessary duplication and also confusing to have different regulatory regimes looking at change of use and physical works separately, as well as being an extra burden on applicants. With regard to alternatives, members of the RTPI have discussed the following two: Zoning: this system is commonly used in other countries about which there is considerable research. A complex series of binding rules have to be set down within which development can occur. Such rules can be laid out for existing developed areas, as well as for new development areas. Developers have to comply with the rules, with limited freedom to build or change use, as long as their proposal complies with the rules set out which are legally binding. In a zoning system, the rules are inflexible, and often subject to legal challenge. This could have the effect of increasing regulations, not least because each zone would be different, removing the certainty that the current system provides. Zoning often results in a more inflexible system, which would be a very different approach to the British system of discretion in controlling and managing development. We also question how Environmental Impact Assessment would fit into such a system? Laissez-faire approach: to de-regulate changes of use so that no permissions were required would lead to immense bad neighbour problems for everyone. It would have adverse impact with regard to compatibility of uses, which is something which creates issues for residents and businesses. Cumulative impact is important too and whilst one change might be acceptable, an accumulation of change might not be. This might be the case, for example, in a retail area where many premises have changed from A1 (shops) to A2 (financial and professional) which can seriously affect footfall and hence vitality and viability of the shopping centre. Many local authorities have attempted to control these changes of use by limiting the number allowed in a particular area. Without the Use Classes Order, it would not have been possible to control the number of hot food takeaways in close proximity to schools (as done by Waltham Forest, Barking and Dagenham and others) as a way of tackling health issues in particular obesity in children. 1 Cullingworth, B. and Nadin, V. (2006) Town and Country Planning in the UK, 14 th Edition, London, Routledge

3 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? The Use Classes Order allows for the consideration and adjudication of the compatibility of land uses. The answers to question one apply here. The RTPI favours the existing discretionary system as an approach to managing development. In particular, the current Use Classes Order was created in 1987 and it has been amended to take account of new uses, and in particular, some uses which have created problems. What is interesting about the changes is that generally they have introduced further sub-division of uses, such as the sub-division of the A3 food and drink use class in 2005, to create a class (A3) for food and drink (cafes, restaurants); A4 for pubs and bars; and A5 for hot food takeaways. Prior to this, it was possible to get planning permission for a restaurant, and then change it to a public house without planning permission. However, it was deemed that the change could have a potentially dramatic impact on amenity, traffic generation, noise, litter etc, and that permission ought to be sought. In response to the question, it is considered that the Use Classes Order is an appropriate tool for the discretionary planning system in Britain by removing the need to apply for planning permission for particular changes in use. A completely de-regulatory approach would result in a huge rise in bad neighbour uses, to the detriment of residents and businesses, and reduce the mix of uses in our shopping streets. One such example might be the use of a house in a residential street for a small family-run taxi firm. Whilst this might appear to be a small business which needs to be encouraged, its growth could have adverse impact with increased traffic and all its undesirable impacts, more noise, especially at night, safety issues for pedestrians and children, and so on. In conclusion, the RTPI considers that the Use Classes Order is an appropriate way to manage competing uses in urban and rural environments nationally. It allows changes between similar uses, and thereby promotes competition, without the need for planning permission. A single set of rules for the nation is desirable and is what developers and businesses ask for. This provides certainty which encourages appropriate development. 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?

4 Currently, planning regulations allow for the use of Local Development Orders which enable local authorities to define extended permitted development rights in certain areas to meet local planning objectives. To date, these have been little used. The RTPI favours this subsidiary approach, where a clear set of national rules can be modified at a local level to meet local needs, and in principle the proposals for Neighbourhood Development Orders fit into this where local conditions dictate the need for a different and distinctive approach. There is limited experience in the planning sector of the use of LDOs. The first, in Wycombe District, was only designated in June In other areas, Dacorum Borough Council, for example, are yet to adopt their LDO, however it has been found to be cumbersome and expensive to designate. A particular concern is that LDOs add to workloads both for councils and for developers in identifying whether a proposal fits in with the Order, especially where development is required to be carried out in accordance with council design guidance; this has resulted in the need for pre-development advice services or prior approval arrangements for aspects such as parking arrangements, and some local authorities are trying to charge for these services. The result is a concern that the LDO does not necessarily give the developer more certainty, nor does it free up the planning service. The PAS has done some research on LDOs. More information can be found on the PAS website including details of the two LDOs mentioned above. Further experience with Local and Neighbourhood Development Orders may help to address these issues, particularly as a library of workable orders is built up. An alternative to imposing increased flexibility through the UCO at the national level might be for DCLG to develop a range of model LDOs and NDOs to meet common objectives, that could more readily be applied, perhaps with modifications to meet local needs, at the local level. A range of pilot projects with government support could be used to test these model orders. While LDOs and NDOs will allow communities to create more flexible local rules, Article 4 Directions can continue to be used to restrict permitted development rights where there is a particular need to do so. These are used extensively for conservation areas, for example, to further protect urban and rural heritage. However, imposing an Article 4 direction is a cumbersome and lengthy process, involving liability for compensation and resulting in a loss of fee income. The fact that Article 4 directions can be used by local authorities to mitigate the imposition of nationally imposed liberalisation should not be used to excuse the blanket reduction of local discretion through changes to national permitted development rights. The RTPI considers that the current balance between national and local flexibilities to change of use is about right as it is now.

5 4. Do you think that the current classes of use in the Use Classes Order are still appropriate? In general, the RTPI is of the view that the current classes of use are appropriate. It is important to have a classification of uses, and they have, generally speaking, stood the test of time. It has already been stated that uses can change through time and some start to present problems. To date, some alterations have been made which address this, including the division of the old A3 Food and drink class in to A3, A4 and A5. There remain some anomalies and the RTPI considers it might be useful to commission some further research into these, some examples are given below: Does the A class address sufficiently the current issues and trends in high street uses? Changes in shopping habits and the expansion in the range of retail formats from large out-of-centre hypermarkets, superstores and DIY sheds to in-centre supermarkets to local corner shops might indicate that Use Class A1 could be sub-divided. There is clear evidence that different types of retailing have different land-use impacts in terms of their hours of operation, servicing and deliveries, traffic generation, numbers of customers and noise from air conditioning and refrigeration units. Nationally this was highlighted in the House of Commons debate on urban supermarkets on 13 September debates/part008.html. Cornered Shops by the London Assembly Planning and Housing Committee (July 2010) provides further evidence. In Bristol the issue has been raised by the Neighbourhood Planning Network, a network of voluntary groups within the Bristol area, working together to help themselves and each other get better involvement in how their neighbourhoods are developed, through the planning system ( ) Some examples in Bristol include: Tesco Express, Knowle permitted change of use from pub Co-operative, North Street change of use from furniture shop (did not require permission) Sainsbury Local, Gloucester Road change of use from off-licence (did not require permission) Tesco Express, Cheltenham Road change of use from comedy venue (the comedy club use ceased and the administrator applied for A1 use which was approved. The administrator then disposed the site to Tesco.) Tesco Express, Southmead permitted change of use from pub

6 They have generated a high level of community interest. Some people have opposed the developments, while others have welcomed them. The issue is not whether they go ahead or not, but about bringing them within the development management system so that, for example, legitimate planning concerns about the impact on local residential amenity of servicing and deliveries can be addressed through the use of planning conditions. A convenience store format supermarket like a Tesco Express or Sainsbury Local will have daily deliveries by a large lorry (serving a number of stores) and a number of refrigeration units, both on the shop floor and in storage area. This is very different to, say, a bookshop, computer shop or clothes shop which will have deliveries by parcel post, deliveries from wholesalers or the proprietor calling in at the cash and carry on the way to the shop. While for others, such as large electrical goods or furniture shops, they act more as a showroom, with items bought being delivered to people s home from a warehouse rather than the shop itself. Whilst it is recognised that planning regulations should not interfere unnecessarily in markets, there may be a way to address some of these problems, perhaps through a new definition which allows for distinguishing by size of unit, or by distinguishing between shops that sell a combination of fresh and chilled food produce (i.e. supermarkets and convenience stores), and those that sell inert products, such as clothes or books. Requiring applications for planning permission in these instances comes from a desire to enable local people to voice their concerns and for the planning authority to impose conditions to successfully manage the impacts of the proposed use, rather than simply seeking to refuse such a change. Treating different sizes of retail units differently Another anomaly which could have an impact on the high street and the general objective to encourage independent retailers relates to the size of the unit, especially where amalgamation of units is proposed. This amalgamation and sub-division of retail units would not be considered permitted development and would thus be subject to planning permission. This would mean that proposals to merge a number of small shops ( sq m) together to create a larger store or supermarket would need planning permission, or vice versa. Sandwich shops There is an anomaly in that there is a grey area between shops that sell sandwiches, and cafés/take-aways. A general principle is that a shop that sells a variety of products, including sandwiches (and similar pre-packed food items) such as a branch of Boots is classed as an A1 shop. As the amount of hot food or drink, food prepared on the premises, or availability of seating within the premises, increases, the more likely it is that the premises would be classed as A5 (hot food take-away) or A3 (restaurant or café). The anomaly comes where

7 A1 premises have a similar impact to A5 or A3, as can often be the case with outlets such as Subway or Pret-a-Manger (indeed these types of outlets occupy premises classified in a number of different ways). 5. The current regime seeks to secure a 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? The RTPI is of the view that the right balance is achieved between deregulation and protection in relation to protection of the public interest. In the recent consultation on Planning for Schools the RTPI felt that the Use Classes Order served the public well but it expressed some concerns about the simplification of the change of use to allow schools to be provided more easily. Read the RTPI response to the Planning for Schools consultation (submitted ) There are other issues with which it is essential to take care to ensure that the public interest is protected. These relate to houses in multiple occupation where the regulations need further clarification to prevent areas from becoming swamped by houses in multiple occupation by students or other groups; to care homes where the element of care takes this group out of one class and puts it into another (Haringey and Bexley have examples of problems with this); betting shops should not necessarily fall into A1 use class; live-work units might be classified as sui generis to protect them. It is important to note that town planners use their professional judgement to advise members in relation to applications and breaches, taking into account the matter of fact and degree of the potential impact of a change of use. This professional judgement reflects well on the planning profession who are qualified to apply this level of knowledge and experience in their dealings with applications and enforcement of the law. It is the planning system which gives local communities a voice in changes which can significantly affect their surroundings. The RTPI is greatly concerned that a reduction in the categories of use classes or a liberalisation of changes of use allowed between classes will lead to the use of more conditions in planning applications or many more Article 4 Directions to restrict changes of use. This is considered to be generally undesirable and might raise complexity for both planning authorities and applicants. Notwithstanding these anomalies, it is considered that the Use Classes Order works well most of the time.

8 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? Yes. The currently operation of the Use Classes Order strikes the right balance between protecting the environment and the interests of those who may be affected by development, and enables appropriate developments to take place without unnecessary hindrance. 7. How should ancillary uses be treated within the Use Classes Order? Ancillary uses are a smaller/secondary use that takes place within premises classified by their main use. A popular ancillary use is the café/restaurant element of a garden centre. The planning system is designed to be generally flexible with ancillary uses, and only usually engages where the impact of the ancillary use becomes such that it changes the impact of the overall premises. In such circumstances the ancillary use is effectively no longer ancillary, and the premises should be reclassified as either a mixed use, or if the former ancillary use has become predominant, as that use (a planning application may be required in such cases). We refer to earlier comments about fact and degree and the professional judgement of planners, along with case law which offers guidance. However, where there is frequently occurring debate and uncertainty on what constitutes a material change of use, guidance would be helpful. Clearly, mixed uses are a factor in many developments, but then planning permission would be required for the whole development, as they would if there was intensification of use. As noted above, there are some uses, such as sandwich shops, where a combination of main and ancillary uses (A1 shop and A5 hot food take-away, for example), or an equal mix of such uses, is so common that an additional use class might be considered. 8. Are the current permitted development rights relating to the temporary use still appropriate? If not, how do you think they should be amended? The RTPI s view is that the regulations regarding temporary uses are appropriate and do not need amendment. Occasionally there are enforcement issues with regard to some uses but this mainly relates to their monitoring when use is restricted to a certain number of days in the year. However, these are not governed by the Use Classes Order, so changing that order will not have an impact on this. 9. Should change of use of buildings be allowed on a temporary basis without the need for a planning application?

9 It is considered that such an approach would lead to confusion among developers, businesses and local authorities. In particular, the monitoring and enforcement of temporary uses would be resource-intensive and problematic for local councils. The best way to deal with the need for temporary permission is through the existing planning application process. As already stated above, there might be a risk to removing barriers for temporary use which could cause harm, such as noise (e.g. motor sports in rural areas); traffic generation (e.g. car boot sales). In general, communities seek greater control of these kinds of uses, not less. 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. In general, consultations by the RTPI demonstrate that the current Use Classes Order is generally fit for purpose, and has served the country well since it was first created. The Use Classes Order is a good way of reducing applications as it allows for some change of use between uses which would otherwise require planning permission. Occasional amendments have been introduced in response to emerging problems and these are likely to continue as new uses become common, or when existing uses become problematic. We are strongly of the view that reducing local discretion on development rights and opening up the Use Classes Order would have an adverse impact on community relations, the management of land and housing supply, monitoring, enforcement and public confidence in the planning system (when determining a planning application the public can see the process, however this is not evident via the Use Classes Order),. If there was a loss of certainty as a result of changes to the Use Classes Order, this could seriously undermine the basis of existing land valuations (thereby further destabilising the funding institutions, such as banks and pension funds) and cause a major problem when assessing compulsory purchase of land for major infrastructure. Unregulated development that adversely impacts on other businesses and residents is bad for the economy.