Just two days after the Class E to Resi PD Consultation closed*; MHCLG opened another one.  

This latest consultation, which launched on Saturday,** sets out a series of proposed changes to the National Planning Policy Framework as well as seeking views on the draft National Design Codes, which have been published at the same time. 

I was on annual leave last week, which means that this post is a little late to the party. As such, I will not summarise the proposals in the consultation itself. If you are after a summary, there are some very good ones already in circulation - I found Pegasus Group's and Savills' briefings particularly helpful. 

Instead, this post is going to take a step back from the detail and  look at how the proposed amendments to the NPPF relate to MHCLG's wider reform agenda. In particular, how they relate to the proposals in the Class E to Resi PD Consultation that closed last week.

The first thing to say about the proposed changes to the NPPF is that they are not comprehensive. MHCLG are very upfront about this. The consultation expressly states that:

"This is not a wholesale revision of the National Planning Policy Framework, nor does it reflect proposals for wider planning reform set out in the Planning for the Future consultation document. A fuller review of the Framework is likely to be required in due course to reflect those wider reforms, subject to decisions on how they are to be taken forward."

Instead, the proposed changes are designed to:

  • Imbed the importance of 'good design' in planning policy - in response to the "Building Better Building Beautiful" Commission recommendations
  • Strengthen environmental policies – including those arising from flood risk and climate change
  • Clarify various policies in order to reflect recent case law and other legal issues
  •  Remove or amend out of date material
  • Update policies about retaining and explaining statues - a response to the removal of the Edward Colston statute last summer during the Black Lives Matter protest; and.
  • Clarify and amend national policy on the use of Article 4 directions.

Setting aside the rights or wrongs of the proposed changes (which are published with a very handy red-line comparison showing exactly how the amendments fit into the current text) for a moment; the timing of the consultation does rather serve to highlight a potential fly in the ointment.  Namely, that the NPPF, as a whole, does not apply to permitted development schemes. 

To recap a few basic principles here:

  •  Permitted development schemes are rendered appropriate by the General Permitted Development Order i.e. they are a creature of statute and not planning policy;
  • As such, whether or not the proposal complies with local or national planning policy is only relevant to the extent that those policies directly relate to a matter requiring 'prior approval' under the relevant PD Right that is being considered. 
  • If there is no relevant prior approval matter to consider, and the PD right otherwise applies, then the scheme is automatically acceptable - regardless of what the NPPF or a Council's Local Plan might otherwise say about it. 

This is of note because MHCLG closed a consultation on the  most radical expansion of PD rights for a generation (Class E to Residential) just two days before opening a consultation designed to embed the importance of 'good design' and 'beautiful buildings' into English national planning policy. 

If both sets of proposals are adopted in the form that they have been consulted on; then we really will have a twin track planning system. Those applications which require a planning application to come forward will be required to comply with national design standards, integrate tree-lined streets, show that they provide for access to open space etc.  Those schemes, of which there will be a great many, which come forward through PD will not - unless there is a specific prior approval matter addressing the issue. 

As regular readers will probably have picked up on by now, the proposed prior approvals for the Class E to Resi PD right do not include any matters relating to design. As such none of the recommendations of the Building Better, Building Beautiful Commission would apply to them. 

The other notable link between the two consultations relates to the proposed changes to the guidance on Article 4 Directions. 

Article 4 Directions are the main weapon in a local authority's arsenal when it comes to removing permitted development rights from areas within their boundaries. The other option available to them (removing them by condition) requires very careful drafting on a permission by permission basis and is of limited help when looking at developments which have already been granted consent. 

The current consultation proposes to amend the NPPF to make it clear that Article 4 Directions should only be very sparingly used by local planning authorities - in particular when they relate to residential conversions. 

The proposed amended text would read as follows*!:

"53. The use of Article 4 directions to remove national permitted development rights should

  •  where they relate to change of use to residential, be limited to situations where this is essential to avoid wholly unacceptable adverse impacts
  • [or as an alternative to the above – where they relate to change of use to residential, be limited to situations where this is necessary in order to protect an interest of national significance]
  • where they do not relate to change of use to residential, be limited to situations where this is necessary to protect local amenity or the well-being of the area (this could include the use of Article 4 directions to require planning permission for the demolition of local facilities) 
  • in all cases apply to the smallest geographical area possible."

The consultation does not contain any guidance as to what might be considered to be a "wholly unacceptable adverse impact" or "necessary to protect an interest of national significance" but it is clear that these are likely to be fairly high hurdles for local authorities to jump through. It may well be that the need to protect a struggling high street, a business improvement district, or the retail and employment policies set out in a newly adopted local plan would not qualify.

Given the fairly damning consultation responses that have been published so far about the Class E to Residential PD Right (including from the CIC, the  BPF and the RTPI),  it seems likely that the proposed changes to the NPPF on Article 4 Directions may also prove controversial....

For those seeking to respond, the consultation  closes on 27 March 2021.

*If anyone wants to read the IM Response to this, please drop me a line and I will email you a copy. 

** Apparently MHCLG are of the opinion that  Saturday night's alright for writing...

*! the amendments are shown in bold