Written evidence submitted by the Heritage Alliance [PDR 077]
The Heritage Alliance is England’s coalition of independent heritage interests. We unite more than 150 organisations which together have over seven million members, volunteers, trustees and staff. We sit on the Government’s Heritage Council and on the sector’s Historic Environment Forum.
The Heritage Alliance has been working with MCHLG on various issues, such as changes to Permitted Development rights, planning reform and energy efficiency of historic buildings. We believe that heritage can help to address many Government priorities, including providing many quality homes through creative reuse.
1. What role should permitted development rights (PD Rights) play in the planning system?
PD Rights are a useful tool to remove the need to apply for planning permission where applications relate to minor or uncontroversial developments or changes associated with an existing development. PD Rights should therefore only apply to minor or uncontroversial developments or for changes to existing development which are not subject to special sensitivities. These will be cases where impacts (for example on the natural and historic environment) of a type of development or change to existing development is known to be low, or desirable, and the potential for complication from other planning factors negligible. An example of minor or uncontroversial developments are the changes made to PD Rights in relation to COVID-19 which have allowed businesses to set up temporary structures such as marquees to provide more outdoor space for diners as restrictions ease .
It is fair to acknowledge that much PD is small-scale and unobjectionable; that it can be, and often is, subject to general conditions and exclusions that can retain appropriate protections for the historic environment and will not override EIA requirements. Nevertheless, there remains real scope for loss or damage to nationally important but undesignated heritage and wider damage to the historic environment generally. PD Rights are not an appropriate tool to ensure proper protection of the historic environment, much of which is undesignated; they are designed for standard circumstances on the smaller domestic scale and not the complex issues generated by historic sites. Indeed, there are circumstances where PD can be used as a loophole - for instance around demolition of undesignated buildings or using groundworks to damage the archaeology on unprotected sites with archaeological potential.
The importance of heritage assets (and their irreplaceability) is stressed in NPPF para 184 and in the National Planning Policy Guidance, it is important to keep in place the planning mechanisms that ensure that heritage assets, whether locally designated, nationally designated, or undesignated, receive appropriate protection as ‘material considerations’ in the planning system. This is something the PD process has the potential to inhibit, by removing an increasingly large amount of development from the scrutiny that accompanies a planning application and reducing the ability of local planning authorities to use prior notification and approval powers.
We would hope that permitted development would both account for a relatively small proportion of development and be subject to suitable protections (such as robust prior approval processes). This would enable development likely to have higher impact to be identified and potentially exempted from PD Rights. The extension of PD Rights which seek to remove an increasingly large amount of development from the scrutiny that accompanies a planning application is not appropriate. This approach to expanding PD Rights has not been convincingly justified by the government. Additionally, and critically, there is no process by which to monitor, measure, or report on the cumulative impacts of PD Rights; as the expansion of PD Rights in recent years has been so great, this is a deeply concerning issue.
2. What is the impact of PD Rights on the quality and quantity of new housing, including affordable and social housing?
*The use of the term ‘PD Rights’ refers to ‘permitted development in respect of large-scale development, commercial-to-residential conversions and changes of use between different types of commercial and retail premises’ unless otherwise stated.
There is much evidence that increased PD Rights* will not actually deliver the Government’s aims of delivering housing and supporting high streets. Responses from a diverse range of organisations to the Government consultation “Supporting housing delivery and public service infrastructure”  recognised the importance of addressing these issues but concluded that increased PD Rights are not the best option to do so  .
The planning system is not the cause of the delay in delivery of housing. Current approval levels of planning applications are consistently high: local planning authorities approved 87% of all planning applications in 2019 and 88% of all applications in 2018 . The Letwin Review found that slow build-out rates are the cause of delay in the delivery of housing, not the planning system . Figures from the Local Government Association support these findings, indicating that permissions for over one million homes are already in place but not built out . This evidence demonstrates that the existing planning system is fit-for-purpose with consent given to the overwhelming majority of planning applications (providing consistency and surety to developers), providing safeguards to society by rejecting the very worst applications and bringing inadequate proposals up to an acceptable standard.
There is a substantial and growing body of evidence, including evidence from the government itself, which suggests that PD Rights deliver poor quality outcomes. Much of this evidence has been focussed on housing quality  but some also considers impacts on placemaking and landscape, including the setting of heritage assets and historic character lost in placemaking . In broad terms of impact, PD Rights remove the ability of local authorities and communities to ensure the sustainability of the location of new or expanded development.
In historic towns such as the York, where there are affordable housing issues, new housing was through permitted development would in all likelihood lead to more market housing being built at the expense of affordable housing. This is because market housing brings in greater profit and, unlike new development, development under PD Rights is not subject to minimum requirements of affordable housing. So far, it has been possible to resist pressure to remove existing conditions regarding local occupancy, but if housing without occupancy conditions can be permitted development, it would weaken this position.
Finally, although not in the scope of this consultation, we would like to make the reference to the related point on demolition as it relates to PD Rights and housing. The ease with which demolition can be undertaken without assessment under PD Rights reduces the available stock of commercial buildings that could be converted into housing. Many commercial sites may be of some historic and archaeological interest and may perhaps be considered to be non-designated heritage assets. Most of these older buildings, with a creative approach, can have a new sustainable future as homes. Even if the loss of the buildings on the site is accepted, there will be many places where these buildings will be in or adjacent to a designated heritage asset (be it a site, building or area) where the setting of the heritage asset could be adversely affected by the development.
A report from Historic England on Understanding carbon in the historic environment stated the ‘prioritisation of refurbishment over demolition is inherently sustainable, as the waste of many materials with carbon already embedded in them would be avoided .
3. What is the impact of PD Rights on local planning authorities, developer contributions and the provision of infrastructure and services?
The COVID-19 pandemic has highlighted the importance of locally accessible nature-rich green space for all . PD Rights that allow for conversion to residential often increase the density of residents but often without adequate outdoor space and do not create better or more beautiful places, so are inconsistent with the Government’s stated aspirations for better placemaking. PD Rights often put additional pressure on existing green space, amenities, and services from additional residents in an area, yet there is no requirement for financial contributions from developers for their upkeep or further provision. This is likely to have a disproportionate impact on urban and poorer communities, where access to green space provision is already lower and where people with protected characteristics are more likely to be disproportionately represented. Permitted Development carries no requirement for Section 106 obligations, therefore planning authorities cannot secure contributions to infrastructure and local services. This comes at a direct cost to local residents and local authorities who see services spread more thinly.
There is also a direct financial cost to planning authorities who do not receive planning fees for processing applications but still need to undertake significant amounts of work to review applications for prior approval. We know there is already an issue with the resourcing of planning expertise and conservation advice in Local Authorities, and an increase in Permitted Development will only increase the pressure.
4. Is the government’s approach to PD Rights consistent with its vision in the Planning White Paper?
No. The Government’s proposals to extend PD Rights are not consistent with its vision in the Planning White Paper for well-designed, beautiful, and sustainable places. PD Rights have been proven to lead to low quality development and places .
PD Rights will not support the Planning White Paper outcome of ‘effective stewardship and enhancement of our natural and historic environment’. The impacts of PD Rights on heritage cannot be adequately evaluated as there is no requirement for it to be measured or reported on. Despite being expanded in recent years, there yet exists no mechanism to understand the cumulative impacts of PD Rights. Evidence of the impact of PD Rights (on both below ground heritage assets and evidence derived from the fabric of historic buildings) is hard to ascertain because it is impossible to know what has been lost without the opportunity for assessment. Reports from our membership indicate there are examples where applications for full planning permission have triggered requests for archaeological evaluation, but which have subsequently been revised to come under PD Rights, thus removing the ability to request such evaluation.
The lack of scrutiny on the extension of PD Rights, especially in the wider context of the scale and pace of the Government’s deregulatory drive, is concerning. It is challenging to evaluate the proposals to extend PD Rights in the wider planning context, given the other changes to the planning system under consideration, including the reforms proposed in the Planning White paper, amendments to SEA and EIA and the introduction of a draft National Model Design Code.
It is also notable that government has recently stated that it intends to include certain categories of Article 2(3) land (conservation areas) in new PD Rights for conversion from retail to residential use , has been increasingly proscriptive about the matters that local authorities can consider in the prior approval process, and has consulted on restricting the use of Article 4 directions. These proposed changes to the use of Article 4 directions would reduce the ability of local authorities to shape their local communities as they would lose the ability to withdraw PD Rights in an area under some circumstances . This is inconsistent with a stated aim in the White Paper of giving ‘neighbourhoods and communities an earlier and more meaningful voice in the future of their area as plans are made’ .
A further area of inconsistency is in the push for commercial-to-residential conversion which reduces the commercial space available to businesses and is incongruent with the White Paper vision to ‘help businesses to expand with readier access to the commercial space they need’.
Lastly, we also have concerns about the proposals for upward extensions. By their location on the top of existing buildings, these extensions pose a potential threat to the setting of heritage, and therefore the appreciation, enjoyment and understanding of it. Further information on our views on upward extensions under PD Rights can be found within our submission on Planning reform: supporting the high street and increasing the delivery of new homes .
5. What is the impact of PD Rights on the ability of local authorities to plan development and shape their local communities?
PD Rights* undercut the Local Plan-led system where local authorities can plan strategically, informed by community voices and an understanding of the bigger picture of land use planning and cumulative environmental impacts within the area, because PD Rights do not allow for community engagement with proposals. Furthermore, PD Rights prevent local authorities from matching planning applications and frameworks with goals related to health and wellbeing of people, which often include setting design aspirations and maintaining historic character. This is because PD Rights are undertaken in a ‘piecemeal’ way without an overarching local strategy, and without consultation. Local Plans, with their extensive evidence base, are informed by environmental sensitivities and social needs and subject to democratic oversight. PD Rights undermine the ability of local authorities to plan for well-designed, beautiful, and sustainable communities.
6. Is the government right to argue that PD Rights supports business and economic growth?
The commercial-to-residential conversions allowed under PD Rights would result in the loss of commercial space available to businesses. At a time where there is likely to be an increase in empty commercial properties due current economic circumstances, any loss of prime high street premises would hamper future recovery once the demand for properties rises again, when the country ‘Builds Back Better’. Given the price differences between open market housing and those related to commercial use, housing allowed under permitted development rights is unlikely ever to return to commercial use. This would not support the government’s aims to Build Back Better and ‘minimise the risk of lasting economic damage from this crisis across all corners of the UK’ .
7. What is the impact of PD Rights on the involvement of local communities in the planning process?
By restricting the control of local communities in shaping their communities, certain PD Rights can reduce their trust in the planning system and decisions and limit the possibility of future community participation. The expansion of PD Rights result in the loss of democratic public scrutiny and meaningful community engagement because their use bypasses the need to gain planning permission, a process that has community engagement built into it. Planning applications provide the opportunity for further investigation of a building’s historic interest even if this application is not in a conservation area or related to a listed or locally-listed building. It also allows the community to see when there are proposed developments that might adversely affect the setting of heritage assets.
Locally listed buildings make an important contribution to communities, they make up the familiar fabric of our places, and enable people to discover and explore their individual, community and national identity. The development or conversion of such buildings without proper consultation removes the opportunity for people to learn about aspects of Britain’s past and wastefully throws away existing built fabric.
Even where prior approval provides for some public consultation, the scope of matters under consideration are very limited and may not address the issues that are of importance to local communities (e.g. historic environment). Those who know local conditions best are often local people and it is a strength of our current planning procedures that they are under the control of democratically elected local people as well as operating within a wider national framework.
8. Should the government reform PD Rights? If so, how?
Many of the proposed PD Rights have the potential to impact on the historic environment which must be appropriately mitigated. We propose that this should be done in the following ways;
● A review should be undertaken of the impact of the PD Rights changes since 2010 to see if there have been any unforeseen consequences (our concerns are those affecting the historic environment), and to amend those PD rights before further roll out of new PD rights.
● Suitable exemptions from PD Rights for designated and locally listed heritage assets;
● A system for prior approval for development within sensitive areas or where there are heritage assets nearby and there is an impact on the settings of heritage assets;
● An exploration of existing regulatory mechanisms (such as Areas of Archaeological Importance) that could be used to identify where identification, recording and enhancement of heritage assets would be necessary in advance of PD.
● The ability for local authorities to refuse demolition if there are concerns on heritage grounds, not just on the manner of the demolition as is the case with the existing permitted development right for demolition of houses.
The Alliance believes that prior notification of proposals should be made to the local planning authority (LPA) where there are heritage assets on or near the development site or where the LPA has identified an area of high archaeological potential. The applicant should include an assessment of the local Historic Environment Record (HER) and assessment of whether the proposals would harm the identified heritage assets nearby, which we believe should also be a statutory requirement. Our more detailed views on the Historic Environment Record (HER) can be found within our Heritage Manifesto .
Further powers of enforcement may be required for the proposed PD Rights where these have been exercised and the development has an adverse impact on heritage assets. There must be a system for the local planning authority to be able to seek to have changes made to the development if it has not been built in accordance with the plans submitted for prior approval or the impact of the proposals on the historic environment were not considered in the first place.
Given the emphasis that Historic England has placed on Heritage Crime and how our national heritage assets are an irreplaceable resource, consideration needs to be given to the training of enforcement officers in dealing with planning contraventions that affect heritage assets and their settings.