News Type: Legislation Update

The Secretary of State (SoS) for Levelling Up, Housing and Communities has, at the end of July, directed that Article 4 Directions be modified which restrict Class MA permitted development rights (PDRs) made by Westminster, RBKC, Richmond on Thames and Wandsworth Councils.

As a recap, Class MA PDRs came into force on 1st August 2021, and, subject to Prior Approval, allow for the change of use of a building and any land within its curtilage from a use falling within Class E (Commercial, Business and Service) to residential (Use Class C3). Class MA replaces the previous commercial to residential PDRs including Class O (Office to Residential) and Class M (A1 shops and A2 financial and professional services to Residential), which have since expired.

These significant provisions were seen to provide wide-ranging opportunities for under-used or vacant town centre and strategic sites following the introduction of the newly formed Class E use in September 2020 which encompasses a raft of uses. The PDR allows for a more streamlined process with greater planning certainty and was intended by Central Government to support economic recovery, rejuvenate and diversify high streets through better use of vacant premises and to encourage sustainable use of brownfield sites.

Nevertheless, as predicted, numerous Councils have subsequently sought to restrict this through the imposition of non-immediate Article 4 Directions (most of which are due to come into force now – a year later). A number of London Councils have gone down this route, principally owing to concerns over the loss of business space in town centres and employment locations, with several authorities seeking to cover their administrative areas.

Westminster City Council

Westminster City Council first made a direction on 14th July 2021 under Article 4(1) of the General Permitted Development Order removing Class MA for the majority of the Westminster Central Activities Zone (CAZ). The Article 4 direction was due to come into force on 1st August 2022 and would mean proposals for conversion from Class E to residential would require planning permission and, crucially, relevant development plan policies would apply.

Nevertheless, the SoS has seen fit to modify this Direction, overruling the Council’s proposals to determine that the Direction must cover a smaller geographical area.

The SoS has, within his letter, quoted Paragraph 53 of the NPPF which stipulates Article 4 Directions should be limited to:

• “…situations where an Article 4 direction is necessary to avoid wholly unacceptable adverse impacts (this could include the loss of the essential core of a primary shopping area which would seriously undermine its vitality and viability, but would be very unlikely to extend to the whole of a town centre);
• In other cases, be limited to situations where an Article 4 direction 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, be based on robust evidence, and apply to the smallest geographical area possible”.

The SoS goes on to state that:

“The Article 4 direction, as made, does not take a sufficiently targeted approach in the assessment of the wholly unacceptable adverse impacts of the permitted development right in each location. Such an approach is necessary to ensure that Article 4 direction applies only to the smallest geographical area possible. I am therefore of the view that the boundary must now be modified in accordance with the notice attached to this letter”.

“This will ensure that the Article 4 Direction is focused on protecting the most significant clusters of commercial activity where the permitted development right would have a wholly unacceptable adverse impact. It covers core locations within town centres with continuous ground floor frontages, Special Policy Areas that offer a unique mix of commercial uses and mature Opportunity Areas that have delivered high levels of commercial floorspace in the last decade”.

These modifications will ensure that the Article 4 Direction boundary for areas within the Westminster Central Activities Zone is justified by robust evidence and complies with national planning policy”.

As such, with immediate effect, Class MA PDRs are now restricted only within specific areas and streets within Westminster.

Nevertheless, as per the site boundary revision, Class MA Prior Approval applications can now be made within certain areas of the CAZ, affording a range of opportunities. Westminster is also proposing a separate Article 4 Direction for high streets outside of the CAZ, and which the Council intends to formally introduce in December 2022 (12 months after it was made).

RBKC

The Royal Borough of Kensington and Chelsea (RBKC) made a Direction on 20th July 2021 for the entire administrative area to be covered by an Article 4 Direction.

The SoS saw it necessary to amend the location of the Direction on 22nd July 2022 to:

“… ensure that the Article 4 Direction is focused on protecting the most significant clusters of commercial and, where appropriate, other activity where the permitted development right would have a wholly unacceptable adverse impact. It covers core locations within larger town centres, important neighbourhood centres, Employment Zones, clusters of office and light industrial uses across the borough and valued medical uses and creches outside of our town centres”

Richmond on Thames

Richmond on Thames applied on 30th July 2021 for 67 sites to be covered by an Article 4 Direction restricting Class MA.  The SoS has since, on 22nd July 2022, reduced the extent of the Direction, which will come into effect on 31st July 2022.

Wandsworth

Wandsworth applied for an Article 4 Direction on 30th July 2021 to cover the CAZ (Nine Elms) and 62 other sites. The SoS has since reduced the extent of the area covered.

Summary

In summary, it appears that Central Government will be steadfast in their stance that Article 4 directions should be limited to precise and small geographical areas to encourage the intended benefits of the PDR, such as providing a level of flexibility within the planning system to help smaller buildings which can more easily change their use and to help increase housing supply via a more straightforward approach.

It will be very interesting to see where else the SoS will see fit to intervene regarding Class MA Article 4 Directions, particularly considering the legal challenge to revoke Class MA launched by Islington Council.

Given that certain areas of the Westminster CAZ have now been removed from the now live Article 4 Direction, and prior to the implementation a Direction affecting other Westminster high streets in December, there could be some opportunities in the next few months to benefit from these PDRs as Central Government intends.

Firstplan are continuing to monitor the progression of Article 4 Directions across London and elsewhere. Please contact a member of the Firstplan team to discuss opportunities afforded by this PDR and clarification on where the Article 4 Directions do and don’t apply.

 

Article by Claire Stafford

On Friday 22nd July 2022, the Government announced that the temporary pavement licence provisions allowing pubs, cafes, bars, and restaurants to provide furniture on pavements and pedestrianised roads adjacent to their premises for a capped fee of £100 would be extended by a further year until 30th September 2023.

The fast-track application process was due to come to a close at the end of September 2022 but has been extended by an additional year whilst further permanent legislation is being prepared. The changes are expected to become permanent in Spring next year when the Government will introduce additional legislation through the Levelling up and Regeneration Bill.

Firstplan will continue to monitor this on behalf of our clients, but in the meantime this extension will ensure businesses can continue to operate under temporary provisions until permanent changes become law next year. This will no doubt come as welcome news to many operators as it reduces the time and cost associated with the provision of outdoor dining and drinking at their premises.

The Levelling Up and Regeneration Bill will see the replacement of existing EU-generated Environmental Impact Assessments (EIAs) and Strategic Environmental Assessments with new government-created Environmental Outcomes Reports.

The Bill is intended to build upon the Environment Act 2021 by improving ‘the process used to assess the potential environmental effects of relevant plans and major projects, through a requirement to prepare ‘Environmental Outcome Reports’ (EOR’s).  Importantly, the Bill also creates a duty on the Secretary of State to ensure that the new system of environmental assessment does not reduce the overall level of environmental protection.

So, what are Environmental Outcomes Reports and what is the idea behind their introduction?

EORs represent a switch to an outcomes-based approach allowing the government to set ‘clear and tangible environmental outcomes which a plan or project is assessed against.’   These outcomes will be subject to consultation and ​parliamentary scrutiny prior to adoption and will also need to have regard to the Government’s environmental improvement plan (currently its 25-Year Environment Plan).

The idea is that EORs will be a much simpler, less bureaucratic system whereby environmental effects are measured against (soon to be agreed) environmental outcomes.

The Bill allows the Secretary of State to make new regulations requiring the preparation of EORs in respect of ‘relevant plans’ and ‘relevant consents’.

The EOR must:

– demonstrate how the plan or consent would effect the delivery of specified environmental outcomes as defined in regulations.

– assess any steps proposed to avoid, mitigate, remedy or compensate (the mitigation hierarchy) effects relating to the delivery of a specified environmental outcome.

– consider reasonable alternatives to the consent or plan.

– include an assessment of how matters raised through assessment are monitored or secured.

In terms of decision making, the Bill allows the Secretary of State to set the extent to which EORs are taken into account. The Bill’s Explanatory Note states that:

‘While Environmental Outcomes Reports must always be taken into account when prepared, the Secretary of State would have the power to make regulations that increased the weight afforded to an Environmental Outcomes Report. This would, for example, allow the Secretary of State to make regulations specifying that a decision-maker should, in certain circumstances, give increased weight to the findings of an Environmental Outcomes Report when considering whether to grant a consent’.

Regulations are to be drawn up setting out which ‘relevant consents’ will require EORs (‘Category 1’ consents will always require an EOR, whereas ‘Category 2’ consents will only be required to produce an EOR where it meets certain criteria to be set out in the new regulations).

The Government’s objective with the introduction of this new system is to ‘turn passive assessment into a more active tool to support environmental regeneration’.  Effective monitoring and enforcement is key to this and, as such, the Bill allows for regulations to be made to enable action to be taken where monitoring shows that the expect delivery of an outcome is not being met.

At present, detail relating to how EORs will operate in practice is subject to future consultation and secondary legislation.  However, the principle of replacing the EIA and SEA system with the new ‘outcomes-based’ system certainly represents a significant change, which will require careful drafting and implementation.

The Bill includes some significant changes to the development plan system – specifically, what should be included in national, local and neighbourhood plans and the weight which should be afforded to development plan policies in the determination of planning applications.  The Government’s aim is to get ‘simple, meaningful local plans in place faster’.  Here we look at the key measures introduced by the Bill, which are intended to achieve this.

National Development Management Policy (NDMP) 

The Bill introduces ‘national development management policies’*– with the idea being that ‘general’ development control policies are taken out of Local Plans and are, instead, centrally-set.  NDMPs are likely to include policies relevant to most local authorities, such as heritage protection and green belt policies. Local Plans will not be able to repeat these NDMPs.

The removal of these types of common policy (which are currently repeated across most Local Plans, often with slight variations in terms of form and wording) is intended to make Local Plans shorter, so that they can focus on locally-specific matters, and, in doing so, expediate their preparation.

The Bill also alters the current test for the determination of planning applications to give more weight to development plans.  At present, s38(6) of the Planning and Compulsory Purchase Act 2004 requires a planning application to be determined in accordance with the development plan ‘unless material considerations indicate otherwise’. This is to be replaced with a subtly, but significantly, changed requirement that planning applications in England ‘must be made in accordance with the development plan and any national development management policies, unless material considerations strongly indicate otherwise’ [our emphasis].

The Bill goes on to state that:

‘If to any extent the development plan conflicts with a national development management policy, the conflict must be resolved in favour of the national development management policy’.

The consequence of these changes is that a) NDMP’s will have the same weight as development plans and will be given priority over development plan policies where there is a conflict; and b) the introduction of the word ‘strongly’ is intended to strengthen the plan-led approach to decision making, thereby ‘providing communities more certainty’ (although, should the Bill survive in its current form, the meaning of ‘strongly’ will no doubt become the subject of much scrutiny and debate in decision making going forward).

The Government has confirmed that it will consult on the proposed suite of NDMPs, as well as the revised National Planning Policy Framework (NPPF).  Further details of plans for the transition to this new development plan system will be published as part of the consultation.  In the meantime, the Government’s Policy Paper advises that ‘in broad terms‘ the changes are likely to ‘begin to take place from 2024′ once the Bill has received Royal Assent and associated regulations and changes to national policy are in place. This circa two-year interim period would presumably allow emerging Local Plans at an advanced stage of preparation to proceed without being impacted (or delayed) by the changes.  It remains to be seen how Plans in earlier stages of preparation will be impacted.

Other changes 

The Bill makes various other changes designed to streamline the slow ( and, in some cases, totally stalled) Local Plan making process.  These include:

– The introduction of ‘gateway’ checks so that issues are identified early during plan preparation;

– Local planning authorities will have powers to prepare ‘supplementary plans’ where policies for specific sites or groups of sites need to be prepared quickly.  Importantly, these will replace the ‘supplementary planning documents’ which councils produce currently.

– The ‘duty to cooperate’ contained in existing legislation is being repealed and is to be replaced with a ‘more flexible alignment test set out in national policy’.

– The introduction of ‘neighbourhood priorities statements’ – effectively a simpler version of a neighbourhood plan which allow communities to set out their key priorities and preferences for their local areas.  Local authorities will then need to take these into account in the preparation of Local Plans.  Neighbourhood Plans will remain, and confirmation is provided on what can, and cannot, be included in the plans.

Alongside the Bill, the Government has confirmed its intention to remove the requirement for authorities to maintain a rolling five-year supply of land for housing, where their plan is up-to-date i.e. adopted within the past five years.  This is intended to incentivise plan production as an up-to-date plan will avoid a ‘presumption in favour of sustainable development’ being applied, even if there is no demonstrable five-year land supply.

The Government will also update regulations to set a clear timetable for plan production – with the expectation that plans are produced within 30 months and updated at least every five years.  Currently only 39% of local authorities have an up-to-date plan in place.  The aim is that with this more streamlined plan-making system in place (along with the digitalisation of the planning system and additional resources generated by higher planning fees), this timetable will become achievable.

There is of course a danger that transitioning to a new system will, in itself, cause delay.  The Government’s intended changes to the NPPF and the new NDMP’s will be key to the effective implementation of the Bill and to minimising delay and uncertainty during the transition period.  We therefore look forward to consultation on these documents and will be keeping a close eye on the Bill as it passes through parliament.

 

* “national development management policy” is defined in the Bill as ‘a policy (however expressed) of the Secretary of State in relation to the development or use of land in England, or any part of England, which the Secretary of State by direction designates as a national development management policy’.  

 

As confirmed as part of the Queen’s Speech on 11^th May 2022, the Government is to introduce the new planning reforms through its Levelling Up and Regeneration Bill. The Bill itself proposes various measures to transform and improve the planning system. One of the new key measures involves various changes to the enforcement process in an attempt to make the process more efficient and close existing loopholes which can be exploited to prolong unauthorised development. The Bill notes that it will ‘amend and strengthen the powers and sanctions available to local planning authorities to deal with individuals who fail to abide by the rules and process of the planning system’.

The proposed changes to the enforcement regime are summarised below:

– Extension to the period in which enforcement action will be taken to ten years in all cases, thereby removing the current four-year rule which applies to development consisting of building, engineering, mining or other operations and the change of use of any building to a single dwellinghouse. (This applies to England only.  The four year time limit will be retained in Wales).

– Introduction of enforcement warning notices which provide a new power for local planning authorities in England to use where they become aware of an unauthorised development that has a ‘reasonable prospect of being acceptable in planning terms’ i.e. that it could be regularised via the submission of a planning application within a specified period.  The enforcement warning notice will require a retrospective application to be submitted in a specified time, otherwise further enforcement action will be taken.

– Increased fines associated with certain breaches of planning in England.  The existing cap on the fine for failure to comply with a breach of condition notice and failure to comply with a section 215 notice (maintenance of land) is removed.  In addition, fees for retrospective applications are to be doubled.

– Extension to the time period for temporary stop notices from 28 to 56 days.

– Providing the Planning Inspectorate with the power to dismiss certain appeals in England where undue delay is caused by the appellant.  In such cases, the appellant would be notified that the appeal may be dismissed unless steps specified in the notice are taken within a specified time.

– Tightening of the scope of appeals against enforcement notices to allow only one opportunity to obtain retrospective planning permission.

– Enabling temporary relief for enforcement action against prescribed planning conditions, and, where necessary, to remove constraints on operations (e.g. for construction and delivery times).

A high-level summary of all of the proposed changes in the Bill can be found using the following link: Levelling Up and Regeneration: further information – GOV.UK (www.gov.uk), with further detail provided within the Bill document itself.

Firstplan will be continuing to publish additional briefing notes on the changes, as well as on any forthcoming updates as they are made available. In the meantime, should you have any queries regarding the proposed reforms, or the enforcement process in general, please contact one of the Firstplan team.

 

Article by James Emblin

The Levelling Up and Regeneration Bill (all 338 pages of it) was published yesterday (11 May 2022).  Whilst the proposed planning reforms contained within the Bill do not fit within the ‘rip it up and start again’ category (as promised in the 2020 White Paper), the measures are nonetheless sufficient to still be classed as ‘reforms’ – albeit it of the lighter-touch variety.

Many of the proposed measures will require secondary legislation, so much of the Bill sets out the changes at a high level.  The detail of each of the measures will be all important, and we will update you further as these emerge.  In the meantime, we briefly outline below some of the key measures:

– A digital transformation – one of the sole survivors of the White Paper, the Bill includes measures to digitalise the planning process, including powers to set common data standards and software.
– Changes to the enforcement regime – Without an effective enforcement process, the planning system does not work.  In recognition of this, the Bill proposes various measures to improve the current system, including extending the period for taking enforcement action to ten years in all cases (i.e. removing the current ‘four-year rule’ which applies to some specific types of development) and increasing fines for certain planning breaches.
– Streamlining Local Plans – The Bill introduces ‘national development management policies’ – with the idea being that ‘general’ development control policies are taken out of Local Plans and are, instead, centrally-set.  The suite of National Development Management Policies will have the same weight as plans and Local Plans will not be able to repeat them. Local planning authorities will also have powers to prepare ‘supplementary plans’ where policies for specific sites or groups of sites need to be prepared quickly.  It is not clear as yet what implications these changes will have on emerging Local Plans.
– The Bill also tweaks the current test for the determination of planning applications to give more weight to Local Plans, confirming any planning application in England ‘must be made in accordance with the development plan and any national development management policies, unless material considerations strongly indicate otherwise’.  
– A new Infrastructure Levy – The Bill replaces the current s106 and CIL system for securing developer contributions with a ‘simple, non-negotiable, locally set Infrastructure Levy’.   Section 106 agreements will be retained in some, more targeted form.  It remains to be seen if it is indeed possible to design a ‘simple’ levy – which is perhaps why the government is proposing a ‘test and learn’ approach to its introduction.
– Street Votes – The idea that took the headlines.  The Bill allows for regulations to be made for a system that permits residents of a street to proposed development on their street and determine, by means of a vote, whether that development should be given planning permission.
– Environmental Outcome Reports – It is proposed to replace Strategic Environmental Assessments and Environmental Impact Assessments with ‘Environmental Outcome Reports’.  The idea is to create an ‘outcome-based approach’, allowing the government to reflect its environmental priorities directly in the decision-making process.
– Heritage protection – The Bill includes further measures to further protect the historic environment with, among other measures, designated heritage assets, such as registered parks and gardens, to be given the same statutory protection in the planning system as listed buildings.

This summary does not detail of all the planning reform measures in the Bill but does give a flavour of some of the key changes.  We will be publishing further briefing notes over the coming days covering the various proposals in more detail.   In the meantime, if you have any queries regarding the proposed planning reforms, please feel free to contact one of our team.

Biodiversity Net Gain (BNG) is on its way, and now is the time to understand and start planning for its impact on development!

BNG represents a fundamental change to the planning system and, once in force, will be a mandatory requirement for the majority of development proposals.  Getting an efficient, transparent, and accountable BNG system up and running nationwide will be no easy task.  In practical terms, it will require new secondary legislation.  More significantly, BNG will also require the creation of an entirely new market where biodiversity units can be created and sold, as well as developing the skills and resources across the sector needed to implement the requirement.

DEFRA has recently concluded their consultation on BNG Regulations and Implementation.  Until the Government issue their response, there remains some uncertainty regarding the details of how BNG will work when it is introduced in November 2023 following the transition period.  Nevertheless, it is important that all those involved in the planning process seek to use the intervening period to get to grips with the challenges and opportunities presented by BNG.   Here we briefly outline how BNG is likely to work, and highlight some of the specific considerations for developers.

What is BNG?
BNG is a mandatory requirement introduced by the Environment Act 2021 that requires developers to ensure new proposals feature at least 10% improvement to biodiversity.  The Environment Act, and therefore BNG, only applies to England.

Biodiversity Net Gain (BNG) is ‘an approach to development, and/or land management, that leaves nature in a measurably better state than beforehand’.  The key word here is measurable.  BNG takes a standardised, quantifiable approach to habitat enhancement based on a biodiversity metric and the approval of a Biodiversity Gain Plan.  Any BNG must be guaranteed for 30 years, which will be secured by a Section 106 agreement or ‘conservation covenant’.  Importantly, any BNG requirement will be paid for by the developer.

Which development will need to provide BNG?
It is currently proposed that almost all applications in England will require BNG, including small sites.  Exemptions are likely to be limited to:

– Developments impacting habitats below a de minimus (minimal) threshold
– Householder applications
– Change of use applications

Permitted development (PD) is also exempt (which may be an influencing factor in deciding whether permission for a proposal is sought via the PD or planning application route).

It is currently proposed that brownfield sites will be subject to BNG.  However, there are calls (including from the RTPI) for the Government to exempt brownfield sites as the requirement may deter regeneration efforts.  In some cases, the biodiversity value of a brownfield site can be surprisingly high, particularly if a site has laid vacant for several years and flora and fauna have become re-established.  There are also likely to be limited opportunities for on-site or nearby off-site biodiversity compensation in urban areas.

It is currently proposed that smaller developments will remain within the scope of BNG (albeit subject to a simplified biodiversity metric).  However, DEFRA have sought views on this and there may yet be changes, with possibilities such as a longer transition time being considered.

When will BNG come into force?
Mandatory BNG is set to come into force for all applications submitted in England in November 2023 (with the exact date to be confirmed).  The transition period for Development Consent Orders (DCOs) is longer and will take effect in November 2025.

November 2023 is only 18 months away and, for many proposals, particularly larger scale ones, developers may already be assessing potential sites and/or in the early design stages of a project. It is therefore important that BNG is considered now as there may be a need to secure additional land and/or account for the cost of purchasing credits.

Furthermore, as BNG is already encouraged in the National Planning Policy Framework (NPPF), and an increasing number of local authorities have their own Local Plan policies in place (in some cases, these local policies exceed the statutory 10% requirement), we are finding that BNG evidence is being requested more frequently by LPAs to inform planning applications.

How BNG works
At the heart of BNG is the mitigation hierarchy. Developers should do everything possible to first avoid and then minimise impacts on biodiversity. Only as a last resort, and in agreement with the LPA where possible, should developers seek to compensate for losses that cannot be avoided.

It is particularly important to avoid any impact on ‘irreplaceable’ biodiversity, as the Environment Act includes provision to exempt irreplaceable habitats from the mandatory BNG requirement.  The NPPF already includes a list of ‘irreplaceable habitats’ such as ancient woodland and blanket bog, but this list is not exhaustive. Natural England is therefore expected to issue draft guidance on what is considered a definitive list shortly (by Summer 2022).  Clearly, if a potential development site includes any irreplaceable habitat, this should be highlighted as a planning risk at the site selection stage.

Biodiversity compensation for any loss as a result of development can be delivered on-site, off-site or via a new statutory biodiversity credits scheme (the latter being set up by the Secretary of State).

The priority will always be for on-site delivery.  This is likely to have implications in the design and viability of any scheme, so should be considered at an early stage (and indeed, the costs associated with providing BNG compensation could feed into negotiations with the relevant LPA regarding other s106 contributions).  It is possible to mix on-site and off-site BNG provision. Land nearby the application site will being afforded more value than land further way.  All off-site gains must be delivered within England.

Developers should be aware that the Government’s statutory biodiversity credits will only be available as a last resort and will be deliberately set at a high price to try and kickstart (and not undermine) the BNG market.  Biodiversity credits will therefore not be an easy ‘go-to’ option to meet BNG requirements – although, in some cases, they may be the only option whilst the BNG market becomes established.

The BNG requirement will be framed as a pre-commencement condition, meaning that the biodiversity gain condition must be discharged before development can begin. To discharge the condition, the planning authority must approve the development’s Biodiversity Gain Plan.  Biodiversity Gain Plans will therefore increasingly become a common submission document in support of a planning application (with the planning application or at the condition stage).

How is BNG measured?
BNG is measured using the Biodiversity Metric developed by Natural England (Natural England has just released Version 3.1 of the Metric).

This standard industry metric is used to measure, and give a score to, the existing baseline condition of a site i.e. the ‘pre-development value’.  The metric is then used to predict the future biodiversity value, including any contributions provided by creating or enhancing habitats offsite i.e. the ‘post development value’.

The ‘pre-development value’ is calculated using three site-specific factors:

1. a ‘distinctiveness’ score which gives a score to the type of habitat e.g. modified grassland has a “Low” distinctiveness score, lowland meadows are “Very High”;
2. a ‘condition’ score – a score based on the biodiversity value of the habitat relative to others of the same type; and
3. a strategic significance – a score based on whether the location of the development and/or off-site work or the habitats present/created have been identified as significant for nature.

The site area is multiplied by these factors to give a ‘biodiversity unit score’.

The above calculation is repeated for the ‘post-intervention’ scenario, with three further factors discounted:

1. difficulty of creating or restoring/enhancing a habitat;
2. a temporal risk i.e. how long the habitat takes to establish and reach a target condition; and
3. a spatial risk – the closer the enhanced habitat to the site, the better the score.

The ‘post-development score’ needs to be at least 110% the number of pre-development units in order to meet the mandatory BNG requirement.

A key rule for using the metric is that habitats cannot be ‘traded down’.  The loss of habitats needs to be compensated for on a ‘like for like’ or ‘like for better’ basis.

---

Site Area x (distinctiveness x condition x strategic location) = Pre-development score

 

Site Area x (distinctiveness x condition x strategic location) 

discount – (difficulty of creation / time until target conditions / distance from site) 

= Post-development score 

 

Post-development score – pre-development score = Biodiversity Net Gain

---

From a developer’s perspective, it is important to have a clear understanding of a site’s baseline position at an early stage – ideally at the site acquisition stage.  This will enable the developer to know the level of post-intervention biodiversity compensation required and to then either design this into proposals or to start looking at off-site options.  It will also form the basis of any Biodiversity Gain Plan.

Whilst the Biodiversity Metric 3.0 is designed to quantify BNG, there remains an element of professional judgement, particularly if a site does not fit neatly into the metric.  Early input into a development from an experienced ecologist can therefore pay dividends in the longer term.

Developers should also be aware that the biodiversity metric scoring system provides an incentive for the advanced creation of habitats or ‘habitat banking’ – again, another reason that it may be beneficial to consider BNG sooner rather than later in the development process.  There may also be opportunities for developers to sell on or ‘bank’ any biodiversity units should a development create a surplus.

BNG will no doubt continue to evolve until it comes into force in November 2023.  In the meantime, we trust this is useful in giving you a flavour of BNG and the potential implications for developers.  Should you have any specific questions, please feel free to get in touch with one of the Firstplan team.

Temporary permitted development rights (PDR) which were introduced in April 2021 and which enabled the provision of moveable structures within the curtilage of pubs, cafes, restaurants and historic attractions without the need for planning permission, have now been made permanent.

In light of the previous Covid restrictions and the subsequent reduction in footfall in town centre areas, the temporary measures enabled establishments to still operate in the pandemic, providing a vital boost for struggling businesses. 

As stated by Housing Minister Christopher Pincher ‘Making these measures permanent will help business and communities to build back better from the pandemic’, with hospitality businesses now able to install a gazebo or marquee year-round, thereby helping them to make better use of their outside space.  

The Town and Country Planning (General Permitted Development) (England) (Amendment No. 3) Order 2021 came into force in January 2022. The newly inserted Class G of Part 2 permits ‘the provision of one moveable structure within the curtilage, and for the purposes, of a building used for a purpose within: 

(a) article 3(6)(p) or (q) (drinking establishments etc.) of the Use Classes Order(3); or 

(b) Class E(b) (sale of food and drink etc.) of Schedule 2 to that Order.’ 

There are a number of restrictions attached to Part G which seek to address any potential amenity and visual impacts, including limits on the height and scale of the structures.   In addition, development will not be permitted where a movable structure would be within 2 metres of the curtilage of any adjacent land that is used for a purpose within Part C (residential uses).

It is important to highlight that structures need to be placed on land within the curtilage of restaurants and pubs; however, these provisions will not apply to many town centre venues that do not benefit from forecourts, yards and gardens. It is currently unclear whether the Government will be proposing any new relaxations for the placement of tables and chairs and structures on the public highway, as it did in 2021.

Class BB of Part 4 ‘moveable structures for historic visitor attractions and listed pubs, restaurants etc’ allows historic visitor attractions and hospitality businesses operating in listed buildings to install a moveable structure for 120 days in a 12-month period, subject to prior approval in respect of siting and installation method. The new legislation is intended to provide additional flexibility while minimising the impacts on heritage sites.

The Government has also taken the opportunity to make permanent PDR’s which enable Councils to hold outdoor markets for an unlimited number of days, including the provision of movable structures related to this use (under Class BA of Part 12, Schedule 2 of the GDPO). The right excludes markets on sites designated as Scheduled Monuments and Sites of Special Scientific Interest.

The introduction of these PDR’s on a permanent basis will no doubt come as welcome news to the hospitability sector, where reliance on outdoor trade can be a key issue.

 

Article by Joshua Hindle

The Environment Bill has recently received Royal Assent in the House of Lords and was passed into law on 9th November 2021 after a lengthy process; the Environment Act 2021 now represents the UK’s own domestic environmental law post Brexit and is a timely addition to legislation, in view of the recent COP26 Climate Summit. The Act has been championed as a world-leading and ambitious example of environmental legislation that puts the environment at the centre of development with tangible targets, plans and policies tailored to enhance the natural environment.

 

Biodiversity Net Gain

A key component of the Act, contained in Part 6, is the requirement for Biodiversity Net Gain (BNG): an obligation for developers to ensure all new proposals feature at least a 10% improvement to biodiversity; grants of planning permission are to be accompanied by a condition stipulating biodiversity gain which is to be managed for at least 30 years. This pre-requisite has been inserted into Schedule 7A to the Town and Country Planning Act 1990 or Schedule 2A to the Planning Act 2008 and is a significant step-change, moving away from the requirement to simply mitigate the impact of a development.

To monitor this, a “biodiversity gain site register” will be created for individual development sites which are also to be maintained for at least 3 decades following the completion of the scheme. BNG requirements will therefore have to be transitioned into local planning policy and development management.

Schedule 14 of the Act sets out that:

“The biodiversity gain objective is met in relation to development for which planning permission is granted if the biodiversity value attributable to the development exceeds the pre-development biodiversity value of the onsite habitat by at least the relevant percentage”.

……..

The 10% biodiversity value attributable to the development is the total of:

(a)the post-development biodiversity value of the onsite habitat,

(b)the biodiversity value, in relation to the development, of any registered offsite biodiversity gain allocated to the development, and

(c)the biodiversity value of any biodiversity credits purchased for the development.
 

The legislation goes on to state that:

“In relation to any development for which planning permission is granted, the pre-development biodiversity value of the onsite habitat is the biodiversity value of the onsite habitat on the relevant date”.

Accordingly, developers will soon have to incorporate a Biodiversity Gain Plan in conjunction with planning application submissions, with legislation stipulating that the development may not be begun until the biodiversity gain plan has been submitted and the LPA has subsequently approved the plan.

The Biodiversity Gain Plan is to include:

– Details of the steps taken or to be taken to reduce the adverse effect of the development on biodiversity of the onsite habitat and any other habitat.

– The pre and post biodiversity value of the onsite habitat(post –development value must be at least the value specified in the plan.

– Any registered offsite biodiversity gain allocated to the development and the biodiversity value of that gain in relation to the development.

– Any biodiversity credits purchased for the development.

Of note, there is a mitigation hierarchy in respect of BNG as follows:

– Avoidance (such as intentional spatial placement of infrastructure and timing of construction). This approach is oftentimes the simplest and most cost-effective, however it requires biodiversity to be accounted for in the preliminary stages.

– Mitigation (measures to minimise the extent of impacts which cannot be wholly avoided).

– On-site Compensation (measures to enhance degraded or diminished ecosystems after exposure to unavoidable impacts. Varying levels of on-site rehabilitation/restoration can be adopted). On-site BNG commitments are likely to be included in a S106 or Conservation Covenant.

– Offset biodiversity losses off-site (As a last resort if compensating on-site is not possible or is not the most beneficial then facilitating gains off-site may be deemed sufficient).

This hierarchy therefore means that developers cannot simply go straight to the ‘pay off-site’ option; indeed, if it is possible to incorporate some BNG on-site this will need to be registered along with its management for the next 30 years, as set out within the corresponding Biodiversity Gain Plan. This is rather a substantial commitment, especially considering that BNG also applies to Nationally Significant Infrastructure Projects owing to a late revision to the Bill. In this respect, practical implications of any on-site BNG will need to be carefully considered.

It is understood that the latest Biodiversity Metric 3.0 is to be utilised to calculate net gain requirements. This metric enables all stakeholders to assess changes in biodiversity value facilitated by development or alterations in land management.

A developer may purchase a credit from the Secretary of State in lieu of this requirement, whereby an arrangement is made in terms of a fee paid in order to meet the biodiversity gain objective (albeit the cost of off-site credits is not yet known).

However, importantly, as previously indicated by DEFRA, there will be a 2 year transitional period before BNG becomes mandatory. This transitionary period is crucial in enabling the industry to prepare, nevertheless, it does not mean that developers can ignore these amendments for this interim period; BNG is already stipulated within the revised National Planning Policy Framework (NPPF) and in some Local Plans, thus revealing the extent to which certain authorities are already pushing this agenda. Now that the Environment Act is in place, it is likely that more Councils will follow suit with and require BNG.  BNG is likely to have notable implications for any development proposal, so should be considered at an early stage.  For example, any on-site BNG provision will have design and management implications whereas there will be financial costs associated with any off-site provision which may need to feed into the viability of a scheme.   BNG is also likely to impact on the validation process with additional supporting information required upfront.

From a Local Planning Authority’s perspective, the public authority must duly consider what actions they could take from time to time to “further the general biodiversity objective”. The authority must then implement policies and specific objectives to achieve this aim. These actions (such as conserving, restoring or enhancing the population of a certain species or protecting a particular habitat) must be undertaken within one year commencing from when the legislation came into force. Local Authorities must also publish biodiversity reports covering no more than 3 years and stating what the council has done to comply with these duties. The LPA can, however, revise policies and objectives and take action to further general biodiversity objective at any time.

The Secretary of State is to issue guidance on how Local Planning Authorities are to comply with this duty; however it is envisaged that the legislation will no doubt mean LPAs now have to engage with Natural England to a greater degree.

 

Additional measures

As advised in our earlier post on the Environment Bill, the Act also includes the mechanism of Local Nature Recovery Strategies: a network of spatial nature strategies which it is intended will encompass the entire country in due time.

Other tools include Conservation Covenants which are set out within Part 7 of the Act. Conservation Covenant Agreements is a local land charge and are agreements between a landowner and a responsible body. The conservation purpose is:

“(a)to conserve the natural environment of land or the natural resources of land,

(b)to conserve land as a place of archaeological, architectural, artistic, cultural or historic interest, or

(c)to conserve the setting of land with a natural environment or natural resources or which is a place of archaeological, architectural, artistic, cultural or historic interest”.

The legislation also establishes the Office for Environmental Protection (OEP) which has a wide remit including monitoring and reporting on the implementation of the environmental legislation, environmental improvement plans and targets.

This piece of legislation is certainly extremely significant given the high profile of environmental awareness both within the public domain and within all levels of government. The success of this landmark Act will become apparent over the course of the next few years as further guidance is published ahead of the formal introduction of BNG. The Government is to consult on BNG statutory instruments and regulations which will be a key step in preparing to implement these comprehensive requirements.

Firstplan will of course continue to monitor the evolution of this Act alongside future consultations and government guidance.

 

Article by Claire Stafford

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The full Environment Act legislation is available at: https://www.legislation.gov.uk/ukpga/2021/30/contents/enacted
The Government’s Press Release is available here: https://www.gov.uk/government/news/world-leading-environment-act-becomes-law

The creation of the new Class E in 2020 was big news for many property owners and developers, allowing much more flexibility to change between commercial, business and service uses.  For those with vacant commercial units, it was perhaps even bigger news when the Government introduced new legislation enabling Class E floorspace to be converted to residential use under permitted development (PD) rights from 01 August 2021.

The controversial new Class MA of the General Permitted Development Order (GDPO) allows the change of use of up to 1,500sqm of Class E floorspace that has been vacant for three months, and has been in Class E use for over two years, to take place under the Prior Approval process.  Whilst Prior Approval requires assessment against a limited number of specified matters, it is no doubt a much more ‘light-touch’ process than the full planning permission route, making it a powerful new tool.  Unlike the previous Class O office-to-residential PD rights, the new Class MA also applies in conservation areas, which significantly expands its reach, particularly in town centres.

The Government’s hope is that this loosening of legislation will boost housing supply and help revitalise town centres.  However, some London Boroughs are not as ready to relinquish control over Class E uses in their town centres and industrial areas as the government would like.

Historically, Local Planning Authorities (LPAs) have been able to regain some control over PD rights by introducing Article 4 Directions to remove their use in specified areas.  Article 4 Directions removing PD rights allowing the conversion of office floorspace to residential have proved particularly popular in central London with many such directions currently in place.   Transitional arrangements ensure that these existing Article 4 Directions protecting office floorspace will remain in force until 31 July 2022.

The Government has made clear that it does not want the effectiveness of the new Class E to residential PD rights to be undermined by the introduction of a raft of new Article 4 Directions.  In an attempt to quell their use, a new paragraph was added to the July 2021 revision of the NPPF requiring Article 4 Directions to be limited to situations where a direction is ‘necessary to avoid wholly unacceptable adverse impacts’ and where it is based on ‘robust evidence, and applies to the smallest geographical area possible’.

Despite the new guidance, a number of London Boroughs are still pressing ahead with new Article 4 Directions and, are doing so, with the backing of the Mayor of London.  In July 2021, the Major published strategic evidence to support a ‘co-ordinated approach’ to introducing Article 4’s to help safeguard the Central Activities Zone (CAZ), Northern Isle of Dogs, town centres, industrial areas, and creative production spaces.

To avoid potentially having to pay compensation, LPAs are required to give one year’s notice of an Article 4 Direction coming into place.  LPAs therefore effectively have a limited window in which to act before existing Article 4’s expire.  So, to date, which London Boroughs are proposing new Class E Article 4 Directions?

The City of London Corporation was quick off the blocks and has already undertaken consultation on the making of an Article 4 Direction to remove PD rights for the change of use of offices (Use Class E(g)(i)) to residential (Use Class C3).  The Direction is proposed across the whole of the City area.

Similarly, RBKC is proposing a borough-wide non-immediate Article 4 Direction removing all Class E to residential PD rights despite the Government indicating that Local Authority wide directions are unlikely to be supported.  RBKC argue that this blanket cover is appropriate given that it is geographically the smallest borough in London (excluding the City of London) and its offices are not concentrated in specific areas.

Other London LPAs do, however, seem to be taking a more geographically targeted approach to the application of Article 4’s.   For example, Westminster has taken the decision to cover a smaller geographic area than the City Council’s existing office-to-residential Article 4 Direction by removing some parts of the CAZ (i.e the Royal Parks and the River Thames) from the proposed direction.  Westminster’s direction removes all Class E to residential PD rights in ‘recognition of the positive contribution of all such uses to the role and function of the CAZ’.  

Lambeth Council is seeking to introduce three non-immediate Article 4 Directions in specific areas including land within the CAZ (as it relates to Lambeth) and selected town centre locations.  Southwark Council has also chosen to focus on specific areas and are proposing a series of immediate and non-immediate Article 4 Directions.

Other Councils proposing Class E Article 4 Directions include Wandsworth, Tower Hamlets, Richmond, Bromleyand Camden. Whilst this list is by no means exhaustive, it does show that many London Boroughs are determined that there will not be a Class E to residential free-for-all. It is also clear that many LPAs are choosing to progress ‘non-immediate’ Article 4 Directions that come into force in August 2022 to avoid the risk of financial compensation.  As a result, in some cases, Class E uses other than office floorspace may still be able to benefit from the new PD rights between 1st August 2021 and 1st August 2022, because only existing Article 4’s protecting against the loss of office floorspace are temporarily extended.

In addition to the introduction of Article 4 Directions, we also understand that a legal challenge has recently been made by the London Borough of Islington against the new Class MA PD rights.  Islington’s legal challenge is in addition to the challenge by Rights:Community:Action against the new Class E and PD rights to build upwards which, having been dismissed by the High Court last year, is due to be heard by the Court of Appeal on 5th October 2021.  We shall be watching both of these challenges with interest as well as whether the Secretary fo State chooses to intervene with the making of any of the proposed Article 4 Directions.

Of course, it is important to remember that, even where PD rights do not apply or have been removed, full planning permission can still be sought for the change of use from Class E uses to residential.

If you have any queries regarding Class E-to-residential PD rights or Class E uses more generally, please feel free to contact a member of the Firstplan team.