Developing in Wales – Is Welsh Government making it Mission Impossible?

March 19th, 2024

It does seem at times that Welsh Government is on a mission to use the planning system to make repurposing of existing commercial space in Wales more difficult. We only need to look at a few recent changes to give credence to this view.

Biodiversity Net Benefit was embraced by Welsh Government some years ago but only recently has it sought to enforce this through planning decisions. The intention is of course laudable, but unlike in England where the equivalent system includes some exceptions, it applies to all forms of development. Quite right, I hear you say. We want all development to support the environment, right? Well, per Section 55 of the 1990 Act, development also includes change of use. So a business wanting to take up a vacant employment or commercial unit that needs a change of use consent will now not get that permission unless they now show an enhancement of biodiversity.

In practice that presents some real problems. As a result of the extremely poor economic climate, new leases are often very short term and the new tenant often has little scope, either physically or financially, to make physical changes to the building. How do you provide a biodiversity net benefit on a shop unit in the heart of St Davids Shopping Centre, for example? Apart from putting a few cactuses on a shelf, that is it. You are stuck.

Green Infrastructure Statements, too. Utter nonsense for change of use of urban premises or existing industrial or business units, especially where the intended tenant is on a short term lease.  The guidance does say that GISs should be proportionate to the use; but it does not make any exceptions for the requirement.

What about Gigabit broadband. Again, a great idea. Wales does need to be better ‘connected’. Let’s ignore for a minute the fact that Gigabit broadband is now so woefully inadequate for those businesses that actually need an internet connection for substantive work, but the aspiration to at least up the ante is on its face a good thing.

However, and critically, Welsh Government has again failed in the application of its intentions.  Specifically, it has failed to make clear how this relates to changes of use of existing buildings, and commercial premises in general. The consultations were all about new homes, and upgrading of Part R of the Building Regulations.    Yet Future Wales (FW) and PPW12 have properly fudged the issue. While PPW12 at Para 5.2.21 says “new development” (which would not be limited to dwelling and would include a change of use) the supporting text is crafted on the basis of new build development.

FW adopts a slightly different, albeit equally confused, line, stating that the purpose of requiring this in ‘new development’ is that it “.. helps negate the need to retro‑fit developments in the near future to accommodate fibre or any new technologies that arise. “    The fact that it is intended to negate retro-fitting would surely suggest that it does not apply to existing buildings?

Yet the guidance is so poorly written and contradictory that some, let’s say less pragmatic, authorities are requiring it for every application that graces their mailbox.  In one case we have the Council telling us that we need to dig up an existing operational yard to lay cabling that the business neither wants or needs.  The consultation documents were mindful of the cost implications of broadband upgrading and discussed limiting the cost to £2000 per dwelling.  yet because none of the consultations actually considered this requirement would be extended to bisiness premises, no thought was given to the cost to business of this requirement.  Moreover, none of the cost balancing considerations ever made it to the planning guidance anyway,

As written, in the hands of some authorities, this poorly explained policy could be an investment killer when it comes to repurposing existing vacant commercial space.

If Welsh Government is serious about supporting this type of investment in Wales and growth of businesses, it needs to address the increasing complexity and the planning system for business, not least by taking more care in crafting its own policies.  It also needs to remind some Welsh authorities that their job is to facilitate investment and development and not to lay down traps and obstacles to stop it from happening.

Biodiversity Net Benefit – Has Wales jumped the shark?

January 4th, 2024

While the new requirement to demonstrate a net gain in biodiversity continues to make the planning headlines in England, the concept of securing biodiversity benefits through the planning system been part of the planning framework in Wales for quite some time.

Section 6 of the Environment (Wales) Act as long ago as 2016 set out a duty for Councils in Wales to maintain and enhance biodiversity in the exercise of their functions. In successive versions of PPW since, the importance of biodiversity has been strengthened. PPW, Edition 11, requires at 6.4.5 that “Planning authorities must seek to maintain and enhance biodiversity in the exercise of their functions. This means development should not cause any significant loss of habitats or populations of species, locally or nationally and must provide a net benefit for biodiversity. (our emphasis). Future Wales, which is part of the development plan, mentions biodiversity 49 times and repeats the positive duty to enhance biodiversity in Policy 9.

The problem is that this duty has, until recently, been largely ignored in Wales. So on 11th October 2023, just ahead of the English changes and following months of signalling following its COP 15 commitments, a Ministerial Statement was issued that introduced changes to Section 6 of PPW to underscore the biodiversity requirements and to bring into play new requirements for planning applications to demonstrate biodiversity gain through green infrastructure assessments. It also introduced an effective ban on development within Sites of Special Scientific Interest, irrespective of the reason for the site’s designation.

The objective is, of course, very laudable. For too long the impacts of major land use change on the local environment has been an afterthought. Public perception has changed also, and creating new built environment with retained and new green spaces and planting has a value that perhaps it did not a few years ago.

As ever, however, WG has rushed in to apply policy ahead of England without any real appreciation of what it means in application.

The first problem is that WG appears not to provide any exceptions at all to the requirement for biodiversity enhancement and green infrastructure assessments, even if it is expected that such requirements will be proportionate for minor development.

Take, for example, change of use applications. By the wording of PPW, if a high street shop owner wants to apply to change the use of the premises to a restaurant, they must provide a green infrastructure statement and show biodiversity net benefit.

Such a change of use applies to the use of the interior space of the building and so there is little opportunity for biodiversity enhancement. A few cacti on a shelf or daffodils on the counter do not, unfortunately, count in the biodiversity metric (or do they?), and structural changes to services etc. are often not in the control of a tenant.

The only way an applicant can actually deliver positive enhancement in such a case is externally. Perhaps in some cases you could nail a bird box to a rear wall and tick the biodiversity box. However, if your unit is within a Conservation Area or involves a listed building, or if the only available external surface is a high street façade, the options are extremely limited.

Similar practical issues apply to applications for small domestic applications (which will be excluded from the BNG in England), temporary permissions and operational development such as erection of masts.

A second aspect is that WG has eschewed the approach adopted in England of using biodiversity metric assessments (which are admittedly a blunt instrument, but are at least transparent), favouring a more woolly and complex approach that they are calling “whole system” which factors in the “resilience” of ecosystems.

The game of planning Scrabble is continued further by the introduction of “stepwise” into the planning lexicon. The idea is that new development ought to be located in areas where the biodiversity is most resilient to impacts of new development.

The concept of the planning system directing where development ought to go isn’t new. Indeed, that is the very raison d’etre of the planning system.

However, sustainable development, by definition, is a careful balance of environmental interests with social and economic ones. This is precisely what TAN24 sought to achieve as long ago as 2014, where it directed that economic development with the potential to cause environmental or social harm ought to be supported by evidence that other less harmful sites have been considered.

This latest missive however is a significant widening of the concept, to all planning applications, placing biodiversity ahead of economic development, social and cultural factors.

The CIEEM Briefing Paper, upon which the new guidance is based, highlights that at the land acquisition stage developers should consider biodiversity and ecosystems, drawing upon Area Statements produced by Natural Resources Wales to scope sites for development and to demonstrate there are no more resilient locations to which the development could go. This is essentially a sequential test for biodiversity.

The concern about just how far Welsh Government might take its use of this Stepwise approach to stymie development is not theoretical. We are already seeing its effects in Ministerial decisions.

A proposal for a major solar farm in Gwent, considered entirely acceptable by an Inspector in terms of delivering a net biodiversity benefit, and with huge benefits in terms of contributing to the net zero agenda, was rejected in July 2023 by the boffins in Cathays Park because in their view a biodiversity ‘sequential test’ ought to have been a key component – and apparently more important than getting a grid connection – in selecting the site in question.

That a grid connection is an absolute requirement for the development to take place, and the extent of existing suitable grid connections in Wales is very limited ought reasonably to make this the starting point for an area of search. After all, if a viable development can’t be delivered, then it won’t happen. The logical and sensible approach is to start with this and then to consider sites within it that are the most resilient.

That this logical and sensible interpretation of the policy requirements approach was accepted by the applicant and the Inspector but still rejected by Sir Humphrey’s Welsh colleagues is very concerning.

The picture that decisions like this, and the new policy, paints is one that we have seen time and time again with Welsh Government – Taking a shiny policy idea from elsewhere, making it more restrictive on development – so that Wales can be seen to be ‘even tougher’ – and then hurling it into the development world without any real clue of how it would work.

The objective to bring biodiversity impacts to the fore in considering new development proposals is a good idea. It is a shame that in its rush to outdo England, Welsh Government has once again jumped the shark and created a system that has the potential to really harm the other strands of sustainable development and, as the recent solar farm decision underscores, achieving net zero.

Thanks to Class E, do we now need Plan B?

March 31st, 2022

The September 2020 changes to the Use Classes Order (“UCO”) as it applies to England took a scythe through the relatively settled system of managing uses.  It created a stripped-back system that, on its face at least, was intended to reduce the bureaucracy of changing the use of property or buildings, especially those in commercial use, with a particular focus on reinvigorating the use of vacant space in town centres.

The previous UCO regime has seen evolutionary rather than revolutionary change since 1997, with from revisions focused on housing delivery and the emergence of uses such as drive thrus, and there is no doubt that it needed some revision to keep up with the changing demands on our town centres . The covid crisis and associated economic impacts added, in the mind of Government, an urgency to the need for the shackles of the planning system to be released, especially on those uses creating and sustaining local employment.  

The 2020 UCO changes came into full effect on 1st August 2021 following a near year long transition process, so we have now had a reasonable period to see it come into effect. There is however no formal assessment of what it has delivered. One of the criticisms (by the Regulatory Policy Committee) of the policy when it was first proposed was that the Government had no plans to monitor its efficacy. Its February 2021 report described the Government’s impact assessment’s plans in this regard as “weak”. We are therefore reliant on anecdotal evidence as to how it has worked out.

Certainly, for those with existing buildings, in our experience there has been some theoretical easing of the bureaucracy associated with bringing space, especially in town centres, into beneficial use. Anecdotally, we have seen it become easier to release vacant (former) A1 units for restaurant uses where previously, antediluvian policies that sought to protect high streets from non A1 uses resulted often in a policy position that preferred landowners to keep it empty and undertake a pointless marketing exercise for two years, rather than to bring an unit into beneficial, job creating use.

For new floor space however, in our experience the picture has been less positive. Having included sub categories in Class E, we are seeing local authorities seeking to maintain control by imposing conditions limiting to a specific sub class. This has in many cases had the unfortunate effect of resulting in a use that is more restricted than might have been the case previously.

In our experience, few local authorities have embraced the open market spirit of the new Order, especially in town centres, perhaps seeing it as an assault on the controls they once held. This is perhaps unsurprising given that this change forms only part of a suite of changes that have already seen local authorities forced to relinquish control over building heights, changes to residential use and other free market ideological changes introduced by Westminster.

The picture has also been rather confused for transitional developments, i.e. those granted consent prior to the changes but not built or implemented at that time. This has resulted in anomalies such as, for example, where open B1 consent is granted but hasn’t been implemented. In the long term this is an unrestricted Class E consent. However, initially, that space cannot be used outside of Class E(g). While others have opined on this with legal authority, the general interpretation appears to be akin to the concept of “colourful implementation” introduced by the Kwik Save case many years ago i.e. you need to implemented the consented use properly before using any rights that come with that use.  There may be some sense in that, after all you ought not to be able to apply for one thing and build something else.  However it has simply added to the confusion that many in the property sector, especially beyond those in the planning and legal professions, have experienced with these new changes.

One of the most significant failings of the Order changes however has been that the Government has forgotten to consider fully the implications for permitted development rights that expressly linked to former use classes.

Take for example the right to change up to 500 sq m of employment space from B1 or B2 to B8 use, under Class I of the GPDO. Class B1 now does not exist and was expressly removed from Class I by Amendment Order (No.2) that sought to tidy up the GPDO to reflect the UCO changes. This took effect on 1st August 2021.

The probably unconsidered effect of this has been the loss of the flexibility to utilise small industrial units on an Industrial Estate for storage and warehousing now (for example, to meet the growing need for ‘last mile’ logistics) prima facie, requires permission where it did not previously.

Similarly, and evidently more on the radar of Government, is the right to change the other way, from B2 or B8 use classes to B1 (now Class E). The Government forgot about this in the Amendment Order and has belatedly realised that this could result in the loss of larger employment space to commercial uses, and so is planning on curbing such rights with further changes. While the intention is of course to stop the loss of B2 and B8 space to non-employment space, the potential effect is to further curb the historic flexibility to alternate between the traditional “B” class employment uses.

To add to the confusion, because the exercise of previous B1 to B8 permitted development rights did not require any documentation, we have already seen landowners with former B1 units who transitioned to B8 before the end of July 2021 being challenged to prove the lawfulness of that change. Again, the spirit of the changes has been ignored by such Councils reverting to a mode of development control rather than development facilitation.

It seems therefore that at the moment, the intention of cutting the shackles of existing floorspace in town centres has had a more mixed effect than perhaps intended. While it certainly has shaken up the High Street, it has not brought the same flexibility to new development and has had the unintended effect of imposing new and unhelpful restrictions on the flexible use of existing employment space between the traditional “B” classes.

Finding policy documents; its a game of hide and seek!

November 1st, 2021

If a tree falls in a forest and no one is around to hear it, does it make a sound? I had always thought this an esoteric concept, until I spent many hours trying to discover information about an area designated as a Conservation Area last week and undertaking a similar exercise this week trying to find out about a SINC. Both exercises raised the same question – If a policy or environmental designation is made but the details are so well hidden that no-one knows anything about it or is able to uncover anything about it, is it a designation at all?

This is not as abstract as it might first appear. It is a fundamental principle of law in the UK that if you are to comply with a law, it ought to be documented somewhere public. Yes, it might mean that only those with knowledge of the law know where to look, but it is there. Take the recent volumes of coronavirus regulations. They be indecipherable to mere mortals, but no-one can say that they couldn’t find them; They are signposted on Government websites and, of course, collated by HMSO online.

Take my Conservation Area issue. The Local Plan shows the boundary of the Conservation Area, but of real importance in this case was understanding the qualities that led to the designation. The qualities are required under the legislation to be set out in a Conservation Area Statement. There was nothing on the Conservation pages of the Council website and, even after a number of telephone enquiries, no-one could provide me with a copy (The response was that “It was done in the 1970s so I am not sure we have a copy”). It really does beg the question how in such circumstances the planning authority is able to determine any applications for Conservation Area Consent.

Then there was the SINC. I only knew of it because the landowner told me he had heard it somewhere, but I found not a dicky bird about it on the Council website or in the development plan. The only reference to it was in an EIA supplement done by a specialist ecologist. The need for this supplement had been because that had to make a belated acknowledgement that their application site had, in fact, affected a SINC but they had not considered this in the original assessment as they had not been able to find either the name or the basis of its designation as such. Evidently, they had experienced the same issue as I.

At a national level, the MAGIC system hosted by DEFRA is great for showing statutory landscape and ecology designations. The NRW pages show flood plains, the Coal Authority portal shows (albeit in poor detail) the extent of coal mining and the HSE portal shows the extent of apparatus and their exclusion zones. The privately run provides a really useful platform for finding national policy and law changes.

Yes, all these resources would ideally be in one single place, but the information is there at a national level.

So, why is Council level information – information that could make the difference not only between planning permission and refusal, but between prosecution and not being prosecuted, so difficult to find?

Perhaps Councils are now so inundated with drafting policy documents to meet the latest whim of Government, they have lost sight of the basics. Perhaps, as I have noted in previous blogs, those who run our planning system have little grasp of how technology may be used to make the system run more efficiently and transparently. Perhaps they can’t see the wood for the trees.

The rise of the shed

March 15th, 2021

Everyone loves a garden shed. A plain, low cost multi-purpose space that that can meet pretty much whatever needs you throw at it. Storage? Bring it on. A workshop? Of course. A refuge from screaming kids during lockdown, equipped with a bar and pinball machine? Quite possibly.

Thanks to the unlikely triumvirate of Brexit, Covid and changes to the Use Classes Order (in England) the usefulness of the garden shed’s bigger sibling, the industrial shed has now finally been recognised as the development superstar that it undoubtedly is.

Unreliable supply chains for goods emanating from our biggest trading partner, the EU have put the ‘just in time’ approach to the distribution of goods under pressure with a need for more UK based storage to help iron out the hiccups.

Meanwhile, Covid has encouraged and accelerated the move towards internet retailing, with retail distribution warehouses permitted to trade while retail outlets are shut. This has also accelerated the emergence of “dark” retail stores for main high street brands where goods can be delivered direct to customers doors without the rent, rates and staff costs of the High Street and the certainty that trade won’t be again interrupted by something as inconvenient as a global health pandemic. Storage sheds are not new; but sheds that have the potential to upset the town centres first narrative certainly are.

Even the food and drink sector has jumped in, with the “Deliveroo-isation” of the market seeing small “dark kitchen” operations out of Class B1c units (as was, in England) and sui generis larger kitchens operating elsewhere.

Then in England there is the new Class E use class which, at a stroke, has allowed existing Class B1 units that are not otherwise restricted to turn to retail and other town centre uses without the need for permission and without the need for those complicated and often expensive retail impact assessments and compliance with the utterly pointless sequential test. Far easier to take space in a Class B1 shed than to try and play with restrictions on an existing out of centre retail park to accommodate a food or non-bulky retail use.

To cap it all, on the back of all these changes, funds and landowners are beginning to recognise that this a sector to be in, with renewed interest in secondary stock in some locations and creation of new distribution-based developments in others, especially near the motorway network.

This increasing recognition of the value of shed space brings about lots of challenges for local planning authorities. Outside of the main urban areas development plans are generally poorly placed to anticipate non-traditional employment uses of shed space; and unsurprisingly, none make provision for Class E. Similarly, development plans have never really had to consider in any great depth what alternative uses might suit space in an ageing out of town retail development. After all, fifteen years ago, these were the crown jewels of any development portfolio.

In the late 1990s when retail was the flavour of the month for the property sector and was evolving at a rapid rate, development plans almost gave up on trying to craft up-to-date retail policies, with decision making falling to the then national policy and guidance found in PPG6 and PPS6. Development plans were all but redundant for retail development at that time.

The NPPF may be oddly clunky and in an unprintable format, but it is adaptable and can be (and likely will be) amended to reflect the changes in this sector once the budget is out for the way. Will this leave development plans in pretty much the same position of redundancy as far as sheds are concerned? Very possibly. Does this mean that developers need to stay on top of changes in national planning policy in this area? Definitely.

You may have permission for a B1 unit that you have to build for that use, but what use will it be in ten years hence? Should you plan for installing infrastructure into such units to allow for potential future retail or leisure use? Should you specify the construction any differently to maximise flexibility and long term investment value? What about older B1 space? What potential does it have to change to other uses?

All this underscores just how dynamic the economy is; how cumbersome some parts of the planning system are is in adapting to change; and how complex it now is for developers and landowners to understand and use the planning system to best effect.

It’s a good job then that while we at Mango are confined to our own sheds this lockdown, our knowledge distribution service to our clients remain fully operational!

The Welsh planning system – Playing the fiddle while the Welsh economy burns?

February 23rd, 2021

It has been apparent for some time that while the Government in England has been attempting to support the development industry and encourage new housing by making the planning system less onerous, the Welsh Government has taken an entirely different approach in the arena of planning. Adopting the strategy of Nero, they appear to have done little more than fiddle while the economy of Wales has struggled. Is that a fair analogy? Well, let’s look at how the two approaches have differed thus far.

Take permitted development rights. In 1995 Wales and England shared the same permitted development (PD) rights, as set out in the General Permitted Development Order of 1995. However since devolution, the paths of PD rights in England and Wales have diverged. It is safe to say that the divergence has happened largely as a result of changes in England.

The changes in England have been significant. Permitted development rights for dwelling have been extended; new use classes were introduced to protect public houses, resulting in consequential changes to PD rights. Greater flexibility was given to casino development and to rights for flats above shops, to extend offices and shops, to have flexible uses in town centres and to convert agricultural buildings to residential, office or commercial uses. Small click and collect facilities in car parks of shops are permitted development, as are trolley bays. Rights are in place for micro power generation and solar power generation on domestic buildings. Certain buildings may be demolished and replaced by residential development under 18 metres in height subject to conditions. Finally, the introduction of Class E, combining town centre and light commercial uses, essentially gives PD rights to change between a wide range of uses without permission. The changes are such that in 2015 England issued an entirely new General Permitted Development Order to consolidate the changes and have since had to amend that multiple times.  Not all these changes are particularly helpful and the extent of change has left many bewildered as to what requires permission and what does not.  However, the underlying aim has been to try and get development happening in England and lightening the load of overworked local authority planning departments.

So what’s the position in Wales? It would be unfair to say that nothing has changed in Wales since 1995. There have been some changes to PD rights for telecoms operators to agriculture and forestry rights, and micro generation, changes in respect of HMOs , some minor domestic PD rights changes, emergency Covid provisions in 2020, some emergency measures for Avian Flu in 2007. However, these changes have hardly been earth shattering. In fact, in 26 years the most notable change to PD rights in Wales has been the right to erect sheds and greenhouses in community growing areas. That’s it. In 26 years, the biggest change to have happened to PD rights in Wales is that Terry Walton no longer needs permission to erect a greenhouse on his allotment.

1995 was the year Jacques Chirac was elected President of France; the year when the Schengen Agreement took affect; when Nick Leeson was arrested for his role in the collapse of Barings Bank. 1995 was the year that then Prime Minister John Major was re-elected as leader of the Conservative party, Microsoft released Windows 95 and OJ Simpson was found guilty of murder. Apparently Welsh Government also thinks it was a golden year for permitted development since we still have the 1995 Order in place, with almost no revision.

It’s the same with anything actually tangible in the world of policy. The Welsh government insists on showing just how much greener it is than anyone else by re-issuing Planning Policy Wales every year with more and more text devoted to its obsession with the environmental aspects of sustainability and a Poundbury view of design and placemaking. We commented on the release of Edition 10 in 2019 that Welsh Government had opted for style over substance, with more attention to fonts and images than actual real policy to balance the environmental aspects of sustainability with the economic and social aspects. We are due Revision 11 of PPW later this month and while I would hope that given the economic situation that Covid has brought the Welsh Government has picked up the economic baton, I suspect William Hill wouldn’t offer particularly good odds for it.

We are also expecting a National plan for Wales “Future Wales” – a ‘high level’ document that is intended to replace the widely derided and universally ignored Wales Spatial Plan; but this time carrying more ‘weight’ as part of the development plan. Again (and especially given the development plan status) we would hope for something tangible and useful for day to day planning but, if the draft is anything to go by, it will be a mix of wonderful graphics, pictures of cheeseboards, cyclists, hill walkers and castles and little of actual help to bring development forward. Indeed, if it is as self indulgent and vague as the draft, all it will do is bring uncertainty and confusion to the development management process and greater burdens for overstretched Welsh planning departments.

So what about technical guidance, which in England is a living document (Planning Practice Guidance)? Well, WelshGovernment has not issued any technical guidance or update to existing guidance on any subject for 4 years. It last considered the technical advice on the economy in 2014 and on transport in 2007. Flooding technical advice was last considered in 2004, 17 years ago. Tourism was last looked at in 1997, 24 years ago. That’s only one year after Butlins at Barry Island closed.  There are chartered planners who weren’t even born when that guidance was issued.

It does feel that Welsh Government has little engagement with the real development sector and consequently considers that its planning function is limited to the occasional issue of glossy statements rather than grappling with the real issues that affect development in Wales. Indeed, it may appear on occasion that Welsh Government has little interest in anything other than social housing and is anti-development in respect of anything else.

Twenty years ago Wales was renowned for its “can do” attitude and support for development. Developers and investors were drawn across the Severn Bridge to support a growing economy by a system that appeared farm more engaging than the position then than was the case in England. Times have changed.

The BBC carried a report last week of a small developer of affordable housing in Wales being put off by “complex Welsh laws” adding significantly to the cost of development in Wales, complaining of a planning system wracked with delays and lacking the “can do” attitude seen in England ( If this is the experience of a provider of affordable homes, how about the remainder of the development market?

If Wales is ever to recover from the economic crisis brought about by Covid and the earlier recession, It is high time that Welsh Government stopped demonising developers and discouraging development and started doing its job of engaging with the development industry to make the planning system in Wales fit for its present purpose; achieving not only the laudable environmental aspects of sustainability, but the economic and social ones. It is time to stop playing the fiddle and to use the planning system to deal with the forest fire that is the Welsh economy.

Conspiracy theories

December 17th, 2020

At a time when conspiracy theories abound, let me start another one: Local planning authorities are actively hiding their development plans and guidance documents in the deepest recesses of their websites to induce madness amongst the development sector.

It’s true. Everyone is saying it. Well I am, anyway, after my week so far.

On Monday I wanted to find the background evidence to a recent Preferred Strategy document issued by a South Wales authority. It took me an hour to find it; and even then, discovered that the Council had saved ALL its evidence documents as a single, two-thousand odd page PDF file so large that the kettle boiled twice while waiting for it to download.

Yesterday, I wanted to review the validation checklist for a major development in the Midlands. A checklist prepared jointly by three Councils offered web links to individual topic documents, which would have been impressive had the links not all expired.

Today, I have visited that same Council’s online proposals map to see that while it cross refers to three development plan documents, only two are actually available to read, with the third so aged it presumably predated the birth of Acrobat Reader.

My point is this. We already have a development plan system that is overcomplicated. In England in particular, that there can be three, four or even five documents forming the ‘development plan’ all of different ages and often conflicting with each other. That is bad enough, but when you can’t then find the documents, how does a developer properly understand what the relevant policy framework or guidance is, whether a proposal is policy compliant or what is needed to get an application registered?

This is particularly important in Covid times. The idea of ringing a friendly officer for clarification or an e-mail copy of a document has now gone. Council offices, like their private sector counterparts, are deserted.

We are therefore reliant more than ever on Councils keeping websites up to date and making sure key documents and information can be inspected without needing to employ Inspector Barnaby to find them.

Unfortunately, reading many Council websites is like picking up one of those creased and dog eared school textbooks that have been used by ten generations of students before you – tired, dated and littered with old wisdom that has long been debunked.

Even more bewildering is that it seems every single authority adopts a different system for sharing information on the web. Why isn’t there a single national website where current development plan coverage can be shared and integrated, perhaps with mapping on matters such as planning applications?

For a profession that considers informing and communicating information to be part of its essential skill set, why are planners, from central government downwards, generally so poor at utilising the opportunities that the internet offers to engage with the public and the development sector?

Perhaps its not a conspiracy to hide the information, but simply that the world of planning is run largely by people who struggle to understand the opportunity that the internet affords us; conservative-minded luddites who think that TikTok is the internet version of the speaking clock and instinctively look skywards whenever someone mentions storing information in the cloud.

Is this a conspiracy to make planning less and less relevant to modern society? If it is, it may have some truth in it….

The new Class E Use: Beware the dangers of swinging a scythe with blurred vision….

July 23rd, 2020

Sir Humphrey has been busy!  Dominic Cummings’ fingerprints are all over the latest change to the Use Classes Order (UCO) in England.  In one stroke, all uses previously considered “town centre” uses, so those within Use Classes A1, A2, A3 and B1 but also indoor sport, recreation and fitness, health facilities and creche facilities now fall within a single Use Class – Class E – from 1st September.

The UCO has been getting rather long in the tooth and has been blamed for at least some of the perceived problems of the decline of traditional high streets in some parts of the country.  Various tweaks to it, to allow temporary changes and remove some of the red tape from planning applications, have had perhaps limited effect; partly because some of the measures, such as Class V flexible permissions, are largely still not known and understood by the property sector.

The introduction of Class E is hailed as a turning point for town centres.  Announcing the changes, Robert Jenrick said “We are reforming the planning system and cutting out unnecessary bureaucracy to give small business owners the freedom they need to adapt and evolve, and to renew our town centres with new enterprises ….”

The reality is that this particular package of changes is, for the most part, not about town centres at all.

The problems of town centres run far deeper than planning use classes.  (One might question whether town centres are in fact a hangover of the past and something we should be protecting at all, but that is the subject of a different blog.). Excepting a notable few luddite authorities, most in our experience have supported securing the change of use vacant units to other town centre type uses.  Small tweaks to the current system have already given landlords greater flexibility to let vacant space.  There is no reason why further small tweaks, focused on town centres alone, would not have sufficed.  As a practice focusing on commercial development, fundamental changes to the UCO with regard to the high street has not been at the top of the “critical” list for institutional clients and landlords.

No, this fundamental change is not about town centres, it is about free market ideology.  Laissez-faire, if such blatantly europhile language is still permitted.  Its changes are not limited to town centre development but to all development.  Consequently, its effects will likely not be felt on the high streets of England so much as the retail parks, industrial estates and local centres of the suburbs.   

The most obvious implications are for retail policy.  This change pretty much bids farewell to the role of the “sequential approach” introduced in PPG6  some 24 years ago.  What value is there in a test that directs retail uses towards main town centre uses if, for example, a B1 starter unit on an industrial estate or any out of centre gym, creche or health centre may now be used by a retailer, service outlet or cafe operator; and bar any specific restrictions on use, would be free to sell any types of goods or offer any services that they wished.   

This also means  that the preference for any such development will be brownfield locations where there is no need to secure planning permission and therefore no risk of Councils imposing conditions limiting the freedom to move between uses within the broad church that is Class E.  The “impact” test could also fall by the wayside in such circumstances, removing what has been a stalwart of town centre protection for even longer than the sequential test.

Ironically, the only real existing “town centre use” typologies that do not get greater flexibility to relocate out of centre will be the current Classes A4 and A5, i.e. pubs and hot food takeways – facilities that for years many Councils have sought to keep out of the retail core.  These now fall outside any use class.

Perhaps, taking a generous view,  it is the Government’s plan that by opening wide the curtains for the commercial and retail development market and taking away the market distortions that a ‘town centre first” approach generates, it will support town centres by serving as a pinprick that lets some of the hot air out of inflated rents and rates, opening them up to businesses that could not otherwise go there.  Of course there are, in the mid/post-covid world, many smaller centres that are already fully deflated and need no further degassing.    Either way, retail agents must be reeling at the prospect of having to undertake rent reviews.

Read alongside other changes to the planning system, such as permitted development rights to change small retail units to residential, perhaps this is a complex and cunning plan to fundamentally change town centres from a retail focus to a genuine mix of uses, in the vision of Jane Jacobs.

There is however much that leads us to doubt that there is anything approaching a well thought out vision and strategy here, let alone a grand plan to revive town centres.  There is simply too little consideration of the mechanics of the changes.  It is a crude swinging of a scythe to the system.

Take the development plan, the starting point of all planning decisions.  What good is an existing development plan which specifies positively a Class A1 retail use in a “prime retail frontage” when that class no longer exists and any proposal for a shop could (once implemented for more than a colourful period) change to something far different?  Moreover, what would the Government’s response, or that of an Inspector at appeal, be to a Council that sought to continue the use class distinctions that the new Use Class is at pains to break down through the imposition of conditions?  There is little assistance to those at the sharp end of planning to understand how to marry the old system and the new.

The same applies to the application and interpretation of CIL.  In some locations the drafting of CIL documents is already so woolly that it isn’t clear whether a use is liable or not.  Some Councils have adopted the existing UCO to determine which uses are liable.  Will CIL that applies only to, say, an A1 use now be applicable to an application for a proposal defined simply as a  “Class E” use?

There are also more nuanced issues relating to uses that have fallen in, or fallen out of, existing uses.

Do we really need to wait for the Courts to decide on such important points?  Confusion and delay while we make sense of these significant and wide ranging changes is hardly going to speed up development in the short term. I am sure Wales, Scotland and Northern Ireland are watching with amused interest.

We have only scratched the surface of the issues that these changes will bring.  I am sure that legal minds will be giving us valuable insights over the next few weeks on the wider implications of these changes and perhaps the “vision” that Sir Dominic is trying to impart.  I hope his vision with this has improved since his drive to Barnard’s Castle.  Was that in an E-Class, perhaps?

Crossing the threshold

January 9th, 2019

It is well established in national planning policy, through both the original NPPF and now NPPF2 (at paragraph 89) that development plans must indicate a proportionate, locally-set threshold for assessment of the impact of new retail development and if it does not, then the national threshold of 2,500 sq m applies.

The National Planning Practice Guidance (“NPPG”) is even clearer as to the Government’s policy on this. It says in answer to the question “When should the impact test be used?” that “..the impact test only applies to proposals exceeding 2,500 square metres gross of floorspace unless a different locally appropriate threshold is set by the local planning authority.” (Our emphasis).

Against this guidance the position is reasonably clear. Impact is only a test and only needs to be assessed by an applicant where a proposal exceeds either an adopted development plan threshold, or absent such a threshold, the national threshold of 2,500 sq m.

I note for example the decision of the senior Inspector Clive Hughes in the June 2016 decision at Colchester (Appeal Decisions APP/A1530/W/15/3139492, APP/A1530/W/15/3139491) where he opined (at Paragraph 25) “Paragraph 26 of the Framework says that when assessing applications for leisure development outside town centres, which are not in accordance with an up-to-date local plan, the authority should require an impact assessment if the development is over a locally set floorspace threshold. In this case there is no such threshold so the default figure of 2,500 sq m applies. The combined schemes have a total floorspace below this figure so no impact assessment is required.”

The apparent objective of policy being drafted in this way is that if a Council wants to exert more control over issues of town centre impact then it must get a shift on with preparing an up to date development plan with an evidence based local threshold. It is also implicit in setting the default threshold at 2,500 sq m that individual proposals below this level ought not as a rule to give rise to significant adverse impacts.

Rather than rise to this challenge, however, it does seem that some Councils who have been rather lethargic with their plan preparation are forcing developers to force them to submit impact assessments where they are not actually required, for example refusing to register planning applications without a retail impact assessment even though it is not a validation requirement.

Why are they doing this when the test “obviously” would not apply anyway on the context of the NPPF2 and NPPG? Some might argue that they are seeking to defend a gaping hole left in the defences of allegedly vulnerable town centres by national policy. Others might argue that even after all the economic turmoil, Councils are failing to grasp the realities of the changing retail sector and its implications for town centres and are seeking to put a block on any development that might have any effect on existing town centre retail. This is despite the growing evidence that the biggest threat to the high street is internet shopping and the state of the economy generally, not new ‘bricks and mortar’ floorspace.

There appears to be two “angles of attack” being adopted to circumvent the objectives of the NPPF2 and NPPG.

Firstly, if a Council is able to persuade a developer to submit a retail impact assessment, even one that is a ‘light touch’ or described so as not to mention the ‘I’ word, it is then argued that the submitted information is material to the determination of the planning application. This is plainly absurd. Common sense would suggest that information insisted upon that is not formally required ought to be given little weight.

However that was not the approach adopted by the Inspector in the rather left-field appeal decision in Edwinstowe earlier this year. In reaching his rather surprising view of significant adverse impact on a healthy district centre by a small convenience store, the Inspector in that case took the view (contrary to that set out in the view of Leading Counsel that was provided by the appellant to address this issue), that even though there was no policy requirement for an impact assessment, as one had been provided then it could make the issue of impact material.

It is perverse that having been instructed to submit a retail assessment by the Council for which it was accepted that there was no formal requirement, that submission opened up the issue that the Inspector then used against the appellant to argue that a development of a scale one-tenth of the national threshold (and below the threshold set in the emerging plan, interestingly) would have a significant adverse impact.

The second tactic being adopted is giving weight to retail impact policies of the development plan even where the policies don’t comply with the NPPG and NPPF requirements. Aid is prayed in this regard from the judgment of Ousley J in Aldergate Properties. This has been interpreted by some parties as an opinion that sets aside the guidance of the NPPF and NPPG in assessing impact.

It is certainly the case In the Aldergate Properties judgment that Ousley J underscored the primacy of the development plan and that while the absence of a local threshold would be material to the weight afforded to the development plan’s retail impact policies it did not negate the need to consider compliance with those policies in the first instance.

However the judgment went beyond this. At paragraph 64 Ousley J opined that while impact may still be material, the threshold removed the burden of doing a proper, researched, assessment. Furthermore he endorsed the common sense view of the NPPF in that “adverse impact is unlikely below the default threshold unless a local authority has decided that a lower threshold is relevant.”

The effect of this is that while impact may still be a technical policy consideration for any retail proposal falling within the scope of the development plan’s policies, then a) there is no requirement at all for an applicant to prepare a retail assessment to support an application below the requisite threshold; and b) adverse impact is unlikely to arise from a proposal below that threshold.

The overall approach therefore would appear to be that if a proposal falls below a local threshold in an adopted development or the 2,500 sq m default threshold in the NPPF2, then a) no impact assessment is required; and b) absent the submission of a retail impact assessment by the applicant, the onus falls on the Council to rebut a presumption of there being no significantly adverse impact.

What is happening on the ground however is that Councils are now applying pressure to developers that do not want to go to the cost and expense of preparing a retail impact assessment where one is not required by policy, that they will be refused permission if they do not submit one.

The NPPF2 and the costs advice in respect of appeals requires Councils to have clear evidence to support any refusal. However, the mere threat of delay and the cost of an appeal is enough to frighten some developers to give in to these unjustified requests. In acquiescing, they then effectively turn the presumption around, placing the onus to prove no significant impact back on the applicant.

These tactics to quite obviously defeat the purpose of national planning policy and guidance illustrates that positive planning has yet to enter the lexicon of some decision makers. These tactics undermine the objectives of Government to create certainty and clarity for developers and investors in the ‘bricks and mortar’ retail sector, which is a real worry in this fragile economy.

In years gone by this issue would have been flushed out very quickly through consideration of retail schemes at public inquiry, but the slow death of the retail development market has meant that this issue has not been properly aired.

In the meantime the general advice* is simple. If there is no local threshold or a proposal falls below it, do not be co-erced into submitting a retail impact assessment or even a document of similar effect with a different title, it can only bring problems down the line.

*For advice on any specific projects we would be happy to provide detailed advice!

I’d like to accord with the Development Plan – but what is it?

September 28th, 2018

Local authority planners, have oft been criticised for being out of touch with the communities they are supposed to be planning. This criticism is well founded in some regards.

Take development plans. In the good old days, unless you were metropolitan enough to have an unitary borough, each area had a strategic (structure) plan and a borough or district local plan. Both had proper OS maps that you could view and establish exactly what policies or allocations applied to your property or site. Every five years these plans would be reviewed and the new plan would replace the old.

Fly forward to the modern day. I have just finished trying to make sense of a town where the original Local Plan is now out of date except for certain, apparently random policies “saved” in 2007; the list of which I found on a single A4 sheet hidden on the Council’s website.

There is a more recent core strategy, which has a proposals map but it is too small to make any sense of individual sites, and development briefs prepared in line with the Core Strategy which conflict with the Local Plan proposals map.

The Council is also preparing a Part 2 Local Plan of which there is a submission version and a series of amendments, but no consolidated document of what it looks like now.

Then there is a Neighbourhood Plan that far from being the positively worded document it was intended to be, seems to say no to any development that fails to take the area back to 1950.

Finally, we have our friend the NPPF and the randomly organised, printer unfriendly Planning Practice Guidance which appear nowhere on Council websites yet inevitably fill the voids left between these rather random development plan documents.

If professional planners struggle with this minefield, how do those without any planning training?

Planning decisions are required to be able to be read and understood on their face, without reference to extrinsic material unless exceptional circumstances apply, and yet as far as development plans go, it is only with the extrinisic information that you can make any sense of the Development Plan.

Online local plans that weave together all relevant plans are helpful but far from the norm, unfortunately. Nor do authorities generally make any effort to explain the inter-relationship between documents on their websites.

While interpreting development plans continues to be a game that only a select few can play, it is hardly going to be the inclusive planning system that Government wants.