The proposed new NPPF does not take the opportunity to update town centre policies to answer the questions posed by reforms to use classes for commercial property. In the absence of this, some practice is starting to emerge from early appeal decisions.
Snow, homeschooling, Lockdown 3.0 and all the other delights of 2021 don’t seem to have dissuaded the Government from continuing apace with its planning reforms, with last weekend’s signature event being a suite of proposed changes to the NPPF to reflect the “Building Beautiful” agenda.
The majority of the changes focused on introducing design guides and design coding, which will certainly warrant a separate post in due course as enthusiasm allows.
But one thing struck me as conspicuous by its absence – the lack of any proposed changes at all to the Town Centres section of the NPPF. This is a surprising omission, because the recent change to the use class system has brought about a fundamental change in how commercial property is classified by the planning system, by bundling it into a new “Class E.”
It seems to me that at least some changes to government policy are necessary to answer some basic questions that arise. For example – when are conditions to restrict flexibility within Class E appropriate? How should retail impact assessment be carried out for proposals that could – theoretically – be used for retail (but probably won’t be)? What about parking and cycle parking standards, or transport assessments more generally?
Whilst the latest proposed changes to the NPPF do not provide any answers on this front, we are starting to see enough appeal decisions emerging to perhaps start to draw some tentative conclusions on how the Inspectorate is taking account of Class E in decision-making.
I’d suggest three themes start to emerge, although it is worth bearing in mind that almost, if not all, the relevant appeals were made before Class E came into effect:
1: Significant weight
The existence of Class E, and the intentions of Government policy that are taken to underpin it (even if implicit, rather than explicit in the NPPF or PPG), is consistently given very significant weight. Weight, generally, sufficient to outweigh pre-Class E development plan policies (ie, almost all of them still).
In APP/M5450/W/20/3249877 prior approval was refused for the change of use of a charity shop to yoga studio and community hub (D1), on the basis of local policy which sought to secure 50% of the secondary frontage as A1. The inspector acknowledged that “acknowledge that the appeal proposals are not aligned to policy DM37” but found he must “give substantial weight to the existence of Class E and find that it overrides the breach of policy DM37.“
IN APP/M1595/W/20/3249241 a change from A1 to A3 was, again, approved as the fact that that change of use would no longer require planning permission because of Class E was considered to outweigh the relevant development plan policy. The inspector noted: “I must place significant weight on the Local Plan policy, but I conclude that the material considerations arising from amending Regulations that I have referred to, and the factual implications for the intended use of the premises, outweigh the conflict with the development plan that I have identified, indicating that permission should be granted.”
In APP/H5960/W/20/3250527, likewise, the fact that the proposed change from restaurant to office use would now not require permission was taken into account, alongside the fact that policy, in this case, did not resist the change in any case.
2: Realistic fallback
The extent to which the use of Class E is a realistic alternative or implementable fallback is given considerable emphasis. For example, in APP/W4325/W/20/3248455 the Inspector had to consider the change of use of a vacant industrial unit to a gym. The issue, therefore, was the loss of employment land. The tests for overcoming the employment land protection policy were not overcome and a conflict with the development plan was identified, but nevertheless the Inspector concluded the existence of Class E, which would allow the change without permissions “represents a significant fallback for the appellant, and in the event that the appeal was to fail, I am satisfied that there is a greater than theoretical possibility of this fallback option being implemented. Therefore, I give the fallback position considerable weight as a material consideration that outweighs the conflict I have found with the development plan.” The appeal was allowed.
The same approach was followed in APP/V5570/W/19/3243073 where the the change of use of A1 premises in a a designated frontage to restaurant use was permitted. Again, the inspector was “satisfied that there is a greater than theoretical possibility of the retail premises being replaced, even if this appeal were to fail. I give this fallback position considerable weight as a material consideration that outweighs the conflict with the development plan.”
Weight was also given to the fallback position in APP/V5570/W/20/3246450 where the Inspector found, in considering an appeal for change of use from B1 to A1/A3/B1, that “whilst the proposal conflicts with the development plan when read as a whole, there are other material considerations that indicate that the plan should not be followed in this instance and that the appeal should be allowed. This is notwithstanding that I have found that the intended loss of business floor space has not been adequately justified.“
3: Class E Only
Obvious really, but Class E has not been much help when applications for other uses (particularly bars/pubs / Class A4 in old money) are involved, with little weight given to the flexibility within Class E as the uses proposed did not, in fact benefit from it.
In APP/M4320/W/20/3249094 the implications of Class E for a case involving change of use of a village shop to a restaurant and wine bar (a sui generis use) were held to be “limited“, given that that use was not within the new class. The appeal was considered against the existing development plan policies and dismissed.
One area where we are yet to see any decisions is on the appropriate use of conditions to control uses within Class E. Whilst inspectors have not, to my knowledge, imposed any yet, I am also not aware of any appeals having yet been submitted against LPA imposed conditions.
I’d also add – at the risk of getting a little close to home turf on which I don’t usually comment – the examining Inspectors’ comments on the City of Westminster Local Plan were emphatic in requiring any reference to the use of planning conditions to control flexibility to be removed:
“However, we do not consider that it would be justified to include references in policies/supporting text to the use of conditions to in effect restrict specific uses which are now all within Class E. The clear intention behind these recent changes to the Use Classes Order is to allow flexibility for businesses to adapt and diversify to meet changing demands.”Westminster City Plan, Inspectors’ letter, 29 October 2020
I’m looking forward (genuinely – there’s not much else to look forward to) to seeing their report, due this month, for further explanation of their thinking.
My takeaway from this is that, where proposals are seeking planning permission for something that would – were it not for the vagaries of time or circumstance – be allowed by Class E, Inspectors are taking a relatively dim view of attempts by LPAs to prevent this.
My suspicion is that this is likely to generate considerably more appeal activity as appeals start to be made in the full awareness of the new class. Hopefully some further clarity and consistency will emerge – whether from this or the, inevitably, further reform that 2021 seems set to bring.
(This is an edited version of a post first made on geraldeve.com.)