A strange revolution: Class E-to-residential, and the end of virtual committee meetings

This week’s been a tale of 2 planning laws. One which has been made. And another which hasn’t.

Let’s start with the law which will never be. Somewhere out there, there’s an alternative timeline with a Government which sees that one of the few positives to come out of the mess we’ve been enduring in 2020 is that our planning system has been catapulted (often kicking and, yes, screaming too) into the late 20th century. Not the 21st century. No, not quite yet. But at least we’ve been forced to crowbar our analogue system into a digital age.

And as you may remember, I think it’s worked. Not only that. I think it’s actually, in a quiet, very British sort of way, been a total triumph. If you’re a regular of this parish, you’ll be bored to tears by now of me banging on about why I think virtual planning works and we should keep it. And you may’ve seen just the other week I was getting het up about what would happen if the Government failed to legislate in time to extend the deadline to let virtual committee meetings continue: see here.

Well, here’s the update. I expect you seen it by now, but how about a mournful drumroll anyway… 🥁🥁🥁… the Government’s decided… not to legislate to extend the 7th May deadline. Even typing that out now, several days later, I’m sighing. Literally. Sighing. Urgh.

Sorry to be a downer, folks. But we can be honest with one another. So here it is: I think this is the single most depressing piece of planning news of the year. No point carping on about it now when we have a consultation to fill out, but would you grant me 3 quick parting shots:

1. The success of virtual planning committee meetings was one of the very few highlights for our industry of this year of national lockdowns. They helped make our planning system more accessible, more inclusive and more democratic.

2. Virtual meetings extended the ability to access important events to those of us (e.g. parents or carers, those with full-time jobs) who can’t just take a day or an evening to wander off to a Council chamber somewhere and sit for endless hours until called on for our 3 minutes of fame.

3. Most important, sorry to get serious just for a tiny moment, but we are still in the grips of an incredibly serious world-wide health crisis. The Government’s still telling us all to work from home if we can. 1/2 of us haven’t been vaccinated yet. So I mean… really… really… how on God’s green earth could anyone possibly think it’s a good idea to bring an end to virtual meetings, force us back into close proximity with one another potentially in large numbers, and what… hope for the best?

What will this lead to? Possibly more decisions being to delegated to officers (in a cracking victory for local democracy). But one thing’s for certain. And that thing is: delays. Delays. Delays. Meetings adjourned. Applications deferred. Decisions pushed back until it’s safe for committees to determine them. Important and much-needed schemes of all kinds kicked into the long grass. Ah, well. It’s a good thing we aren’t living in the grips of a national housing crisis. Or else we might start calling this kind of whopping great road-block to local decision-making what it is: catastrophic.

Do fill out the consultation if you can. I know you’ve had it up to here with consultations. But this is one’s important.

But - happy days - at least the Ministry have found the time for some legislating this week. Today brought us the promised permitted development right to change from Class E to residential use. Here we go. I give you the snappily titled: Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021.

If you need a primer, then can I offer you my two cents on:

• What Class E is all about: here.

• Why Class E clashes with the town-centre first approach in national policy: here.

• Why, in a year of controversial planning reforms, the proposal for a permitted development right to change from Class E to residential was last year’s most radical proposal for reform: here.

Well, it’s law now. So what are the headlines:

1. The big news we know: Class MA is a permitted development right to change use from Class E (the E stands for “everything”) to residential use. You can start applying on 1st August 2021.

2. There are some new limitations on the PD right which didn’t feature in the consultation version. So for instance, you need to show that the Class E building has been vacant for at least 3 months before your prior approval application. You need to show its been in Class E (or before Class E, old Classes A1/A2/A3/B1/D1(a)/D1(b)/D2(e)) use for at least 2 years before the application. And there’s now a floor-space limit at 1,500 sqm. All of those points will limit the sites where this right can kick in.

3. Any Article 4 directions which currently restrict office-to-resi changes under Class O will still bite until July 2022, so Councils have a chance to get their act together and issue new directions by then. On the challenges they’ll face, see Simon Ricketts’ Article 4 explainer here.

4. Is prior approval needed? Well, in the immortal words of Sarah Palin: you betcha. And it covers:

(a) transport impacts of the development, particularly to ensure safe site access;

(b) contamination risks in relation to the building;

(c) flooding risks in relation to the building;

(d) impacts of noise from commercial premises on the intended occupiers of the development;

(e) where—

(i) the building is located in a conservation area, and

(ii) the development involves a change of use of the whole or part of the ground floor,

the impact of that change of use on the character or sustainability of the conservation area;

(f) the provision of adequate natural light in all habitable rooms of the dwellinghouses;

(g) the impact on intended occupiers of the development of the introduction of residential use in an area the authority considers to be important for general or heavy industry, waste management, storage and distribution, or a mix of such uses; and

(h) where the development involves the loss of services provided by—

(i) a registered nursery, or

(ii) a health centre maintained under section 2 or 3 of the National Health Service Act 2006,

the impact on the local provision of the type of services lost.

So where does this take us? I’ll give you 3 short reflections, and they are:

1. We’ve ended up with a pared-down, scaled back version of the big idea in the consultation - in particular the size limit’s going to knock out lots of larger office buildings from contention. You may think the scaling back is a marvellous idea. You may think it’s a disastrous climb-down. Whatever you think, its effect will limit the power of this PD right, and its ability to make a chunky contribution to the enormous housing targets the Government’s now set for our largest towns and cities (and in particular, London): on which see here.

2. The right applies within Conservation Areas, which is a big deal. But remember: Conservation Areas are designated for their “special architectural or historic interest”. Not for their “sustainability” (whatever that means). So why oh why does it make sense to consider the impact of (say) a loss of commercial space or retail within a Conservation Area but not anywhere else? When the importance of (say) retail space could be massive in lots of places outside Conservation Areas? But could be totally irrelevant to the special architectural or historic interest within those areas?

3. Last but not least: our dear old friend “beauty”. You may remember I think there’s a big problem with planning for beauty: see here. But whatever I think, it’s a major thrust in the Government’s plans and - before long - in our national planning policy too. Which is why it’s worth noting that there’s nothing in this new Class MA which gives authorities any control over anything even vaguely related to design. Not a jot.

We know the Government wants to change the planning system. They’ve told us. Lots of times. But a problem we have is that the Government’s big ideas for change take us in opposite directions to totally different destinations. Like Batman at the end of the Dark Knight: you’ve just about time to save one of the two boat-loads of hapless civilians. But the clock is ticking. And in the end, you have to pick one. Or the other. Don’t you?

In the meantime, stay classy #planoraks. I hope you’ve had some sun this week. And as ever: #keeponplanning!