Written evidence submitted by Levitt Bernstein [PDR 008]
Levitt Bernstein is a practice of architects, urban designers and landscape architects with over 120 staff working from design studios in London and Manchester.
1. What role should permitted development rights (PDR) play in the planning system?
PDR should only be used for small-scale, low-impact development that is unlikely to be contentious. Small home-owner extensions are the obvious example but extensions to other building types and some changes of use (typically only similar uses) may also be appropriate.
While we understand why PDR might be seen as and expedient vehicle for converting existing buildings to new uses, not all uses are appropriate, and even those that are, still need to be subject to rules and scrutiny to secure good outcomes. That is one of the key roles of our planning system. The issues range from judgements about whether the location and the building are suitable for the proposed new use, to safeguarding and quality. When the new use is housing (the outcome for the vast majority of PDR) planning policy would typically ensure that occupants will have the internal and external space, privacy and accessibility they need to enjoy a good quality of life. PDR explicitly prohibits local planning authorities from making these judgements and securing decent outcomes.
Under Class O PDR (office to residential use), changes to the external envelope are not permitted. In practice, the outcomes would often be significantly better if they were – particularly as the buildings involved are generally at least 30 years old. For example, different fenestration, new cladding and/or the addition of balconies would often improve the result. That would usually (and quite rightly) require full planning permission; the very thing that PDR seeks to avoid. Ironically, however, having gained prior approval for many reasons (typically small interventions such as removing communication masts from roofs), a number of developers go on to make a full planning application. That means that PDR often doesn’t reduce the overall time it needs to gain the necessary approvals. We know that developers value the early certainty that PDR provides but that could easily be obtained through outline approval, followed through with a full planning application – a tried and tested process.
2. What is the impact of PDR on the quality and quantity of new housing, including affordable and social housing?
Class O (office to residential use) has been the most prevalent of the newer forms of PDR. Introduced in 2013 for a three-year trial period, it was made permanent in 2016, despite emerging evidence that it was resulting in some very poor outcomes. We were already seeing very small new homes (many only 13-18m2) in noisy, inhospitable locations remote from schools, shops and green spaces; some with too little fenestration and others with too much, and very few with private outdoor space.
The lack of detail required for prior approval is one of the many problems with PDR. It means that no one has a reliable picture of the quality of the new homes but our research, and the independent report led by Professor Ben Clifford of UCL suggests that much of it is very poor. The UCL team found that 22% of PDR homes were below the minimum 37m2 required by the NDSS, 72% were single-aspect and only 3.5% had any private amenity space. New worked examples added to the guidance that supports the HHSRS, strongly suggests that many of these new homes contain one or more recognised hazards. We also have evidence that Newbury House, the first case study in our report, was occupied a year before the local building control officer signed the final certificate. This had been withheld due to concerns about fire safety, soundproofing between dwellings and ventilation.
In terms of numbers, the homes created through PDR over the last eight years have undoubtedly contributed to net additions. We believe the government’s overall figure of around 73,000 is an underestimate because those achieved in the first few years of Class O PDR were not counted. But there is no doubt that the number of homes has come at the expense of size and quality. It is self-evident that the smaller the homes, the more you can cram into the available floor space. That is generally the most profitable approach to take and has led to ‘homes’ of 8m2 – the size of a typical child’s bedroom.
3. What is the impact of PDR on local planning authorities, developer contributions and the provision of infrastructure and services?
PDR fundamentally undermines the principles of plan-led development and bypasses the safeguards that planning policy provides in areas not covered by the Building Regulations (including, but not limited to location, outdoor amenity space, daylight and sunlight, privacy). Until September 2020, it was not possible to apply the Nationally Described Space Standard (NDSS) either. It must be extremely disheartening for committed professionals to be unable to refuse sub-standard development. And while assessing applications for prior approval is much simpler than assessing a full planning application, it still takes considerably more time than the fee allows.
In relation to developer contributions, Shelter and others have pointed out that PDR has led to a loss of affordable housing compared with what would have been achieved had developers followed the full planning route, which typically requires a quota of affordable housing through a Section 106 requirement. Ironically, evidence suggests that many of the worst PDR homes are being rented to people who, in a properly functioning housing market, could reasonably expect to be eligible for affordable and/or social housing, or temporary accommodation. This is because at this end of the market, housing benefit exceeds market rent due to the undesirable location and/or the poor quality of the accommodation. There is evidence that some developers have actively targeted claimants over the age of 35 (who are entitled to a self-contained flat) and therefore receive the full LHA amount for what is effectively a bedroom with a shower in one corner and a sink and hob in another. These ‘flats’ are subject to full council tax too.
We also understand that CIL is rarely achieved which makes it difficult for councils to provide new infrastructure. The loss of business rates and increased demand for local services, particularly in situations where the new residents need support and/or have complex needs, is often mentioned too.
4. Is the government’s approach to PDR consistent with its vision in the Planning White Paper?
The government’s approach to PDR (largely to plough on with more) is completely incompatible with many of its other stated aims, including many of those expressed in the Planning White Paper. Promises to ‘Build Back Better’ and achieve ‘beauty’ mean very little if they persist with PDR at the same time. This process also bypasses local democracy – supposedly another key tenet of the White Paper.
Prompted partly by COVID and the lockdowns that have confined us to our homes, the Secretary of State for Communities and Local Government has repeatedly spoken about the importance of a good home. The requirement for all habitable rooms to have a window and daylight (introduced last summer) and the later announcement to impose the NDSS to all home arising from all forms of PDR, are welcome but do not, in themselves, guarantee quality. They will, however, mean substantially more work for local planners who will need to scrutinise these elements.
Many of the latest forms of PDR, including upward extensions, are subject to complicated height limits and other restrictions. Unless these interventions are very carefully designed, they will not enhance streets or be welcomed by neighbours. No thought has been given to how new homes will be accessed when there is no rear access. In most cases, this will require a new external stair to be erected in the front garden of the existing building. This is likely to be, at best, untidy and unsightly, and at worst, dangerous, particularly in the event of fire. It is unlikely to be achieved without compromising existing access and/or windows, and will mean that the new homes will not be accessible to older people or those living with a disability. It is also difficult to see how services, drainage, insurance and tenure will work.
The consensus among structural engineers seems to be that while many buildings have the capacity to support one additional storey, far fewer could support two. It will therefore be imperative for building owners to obtain approval from Building Control. In short, we don’t believe that the government has thought through any of the practical or aesthetic implications of upward extensions.
5. What is the impact of PDR on the ability of local authorities to plan development and shape their local communities?
PDR seriously undermines the ability of local authorities to shape their communities, and this will worsen dramatically if they are unable to manage the evolution of local high streets post-COVID.
We all understand that new uses will need to be found for the retail outlets and other commercial premises that cannot survive the pandemic, and that it would be disastrous for former shops to be simply abandoned and boarded up. The government should, therefore, be encouraging and supporting local councils to produce local and neighbourhood plans that set out a clear and positive vision for the future; ensuring that high streets remain vibrant, not simply resorting to PDR.
In most cases, this will require contraction and consolidation. To retain their appeal and meet the needs of communities, non-residential must be prioritised at street level wherever possible. There will often be scope to include some housing, but the random pepper-potting of housing must be avoided, and any new housing located at the extremities of high streets, not in the centre. The transformation will need to be actively planned, incentivised and facilitated if it is to succeed.
Given the lasting importance of this, PDR is not the right vehicle to use. Many existing shops are not suitable for residential use because of their location and/or their configuration: we need the scrutiny of a full planning application to ensure that high streets remain attractive, and that all new homes offer a good quality of life. This will only work if these homes are accessible, have adequate privacy and daylight and some private open space; basic attributes but not easy to achieve at ground level on the edge of busy pavements – and a particular challenge in a former shop.
As noted, under Class O PDR, external changes are not permitted. It is not clear whether this principle will apply to the new Class E PDR, but many shopfronts are largely glazed and not, therefore, suitable for residential without significant external modification. They will offer very little privacy and risk overheating in summer and excess cold in winter. Many have deep plans (which means there will be little or no daylight in the rest of the building) and most have little potential for private amenity space or storing bikes and bins. Parking is also likely to be problematic. All of this is particularly important given that the government has suggested that high streets could make good living environments for older people and those living with a disability.
We also profoundly disagree with plans to revise the NPPF to make it even more difficult for local planning authorities to use Article 4 directions to remove nationally-imposed Permitted Development Rights. We have seen countless examples of very poor outcomes and PDR is completely at odds with many of the NPPF’s underlying objectives and the guidance in both the National Design Guide and National Model Design Code. Similarly, we are very concerned by plans to allow Class E PDR to operate in conservation areas.
In summary, rather than ploughing on with more forms of PDR, the government should be pulling back on a what has been exposed as a failed experiment. Instead, it should be incentivising conversion to heath, leisure, arts, community uses etc in town centres and supporting local councils to manage these far-reaching changes in the way that works best for their community. This issue is too important to be rushed though under PDR legislation, particularly as it is likely to be irreversible.
6. Is the government right to argue that PDR supports business and economic growth?
We understand why the government might make this claim, but it is very short-sighted to do so. Most of the office buildings that have been converted under PDR were already old and tired. Without external refurbishment they will have a limited life given that external changes are not permitted under Class O PDR. We suspect that most will require substantial upgrading (inside and out) within the next 10-20 years, and that many will need to be demolished within the next 50 years. It is also safe to assume that very few will achieve net zero carbon without substantial retrofitting.
We fear that the same will be true of the newer forms of PDR, including those affecting high streets. Conversions to residential use may result in a short-term boost to the local economy but that is unlikely to be sustained. As we are doubtful that these homes will be good quality even at the start, we fear that they will soon prove hard to let and become unsustainable in the broadest sense of the word. They could result in the terminal decline of many local high streets, leaving communities with nowhere to go and little pride in their neighbourhood.
7. What is the impact of PDR on the involvement of local communities in the planning process?
PDR significantly undermines local democracy. While, in theory, residents can voice their discontent to the local council, in practice their objections carry little weight. One of the case studies in our report was subject to 107 local objections. They came from a wide range of people including doctors and other health professionals who were concerned about the mental and physical wellbeing of future residents. Our impression is that these genuine concerns for the welfare of the occupants are typical of many other examples, including the ‘Watford shed’ in which six of the 15 proposed flats would have had no daylight: five of them with very low headroom. Mainstream press coverage bears this out; the worst conversions have been heavily criticised by the general public. Many people have expressed shame as well as anger that such development has not just been allowed, it has been actively incentivised.
And, as we have said, many of those who live in PDR homes need other form of support too. In the absence of a social landlord, that places a financial burden on the local council, and therefore the community. This can build resentment, particularly when the incoming residents have been placed there by another authority, often miles away.
8. Should the government reform PDR? If so, how?
We began by saying that PDR should only be used for low-impact development that is unlikely to be contentious, and we trust that our evidence demonstrates why we hold that view. Class O PDR has not only resulted in some very poor outcomes it has also raised the value of run-down office buildings far above their real worth – one of many unintended outcomes of a policy that continues to be pursued despite its multiple shortcomings.
As we have said, the requirement for ‘adequate daylight’ (albeit so far ill-defined) and the imposition of the NDSS will help to mitigate the worst outcomes, but still leaves many other attributes (including location, outdoor amenity space and accessibility) unprotected. Transcribe these scenarios to the high street and it becomes even more problematic. Even if Class E PDR allows for changes to the external façades, these changes need to be vetted and co-ordinated to achieve some consistency, maintain a sense of place, reflect local character and ensure that high streets remain popular, vibrant and safe. That means applying scrutiny through a democratic process – partly why we have a planning system.
There are other ways of speeding up change. Rather than resort to PDR, proposals could be fast-tracked through a full planning process and/or subject to a presumption in favour. Where appropriate, the principle could be secured by an outline planning application to provide early certainty that the development is acceptable in principle.
Levitt Bernstein has actively campaigned against the new forms of PDR for the last four years, mainly Class O. We have sought to expose the worst examples and demonstrated that a number of the homes created through this route are likely to be unfit for human habitation.
The final page of this submission demonstrates that all the flats in Newbury House, Ilford, would almost certainly be found to contain a hazard in respect of Crowding and Space if assessed under the Housing Health and Safety System (HHSRS). The inserts referred to as ‘Plan 2’ and ‘Plan 3’ come from new worked examples recently added to the library held by RHE. In addition to Newbury House and the other case studies in our report, we have sourced drawings and details of many other sub-standard PDR conversions which we would be happy to share with the committee.
We hope that the committee’s report will include recommendations for the 73,000+ homes already procured through PDR. We believe that thousands may be unsafe, and we fear that vulnerable people are being disproportionately affected, particularly among those who are renting. But we also fear that leaseholders may soon find themselves in negative equity; either because their homes are hazardous or because in a post-COVID world there is little demand for small, dark studio flats with no outdoor amenity space.
Overall, we are extremely disappointed that rather than pulling back from PDR, the government has decided to steam ahead with more, despite widespread concern. Its recent consultation ‘Supporting Housing Delivery and Public Service Infrastructure’ focused on the detail around the new forms of PDR and made no attempt to ask whether the proposals were welcome in principle. The LGA’s response was one of many which were critical of the plans and the lack of opportunity to voice concern. By ploughing on with yet more PDR using emergency legislation under the auspices of the pandemic, the government has demonstrated a profound inability to understand the importance of good housing and the mechanisms that protect quality. It has also failed to understand the vital role that high streets play in community life and resorted to short-sighted fixes rather than long-term solutions.