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More planning protection for pubs

In 2015, the Government removed permitted development rights from pubs listed as Assets of Community Value (ACVs).  As previously reported, pubs which are listed as ACVs, or have been nominated to become ACVs, require planning permission for changes of use or demolition, which otherwise could be carried out under permitted development rights.

Noting the importance of pubs to local communities, some local authorities have made Article 4 Directions to remove permitted development rights from pubs. The London Borough of Wandsworth made an Article 4 Direction in August 2016 removing specified permitted development rights for changes of use, demolition and alteration for 120 identified pubs and bars.

Following Wandsworth’s lead, the London Borough of Southwark introduced an Article 4 Direction removing permitted development rights from all 188 pubs in Southwark in March 2017.  The Article 4 Direction means that planning permission will need to be obtained for specified changes of use, demolition, demolition or construction of gates, fences and walls, and exterior painting.

After discussions in Parliament in connection with the then Neighbourhood Planning Bill, the protection afforded has been further extended by the Government to cover all pubs rather than just those listed as ACVs. Section 15 of the Neighbourhood Planning Act obliges the Secretary of State to as soon as reasonably practicable make an order to remove permitted development rights for changes of use and demolition of pubs, and to grant permission for pubs to change to pub and café/restaurant use.  This requirement has been met by the making of the Town and Country Planning (General Permitted Development) (England) (Amendment) (No 2) Order 2017, which comes into force on 23 May 2017.

The order removes permitted development rights so in most cases pubs will instead have to apply for planning permission to:

  • change to a shop;
  • change to a restaurant or café;
  • change to a state funded school;
  • change to a temporary flexible use; or
  • to be demolished.

The order includes a new permitted development right, to allow pubs to change use to “drinking establishments with expanded food provision” and vice versa without planning permission.

The order demonstrates the importance of pubs to the Government, by requiring a planning application for a change of use other than to a pub restaurant.  While this change negates the need for communities to list their local as an ACV to prevent changes of use without planning permission, listing could still be pursued.  A local planning authority can consider ACV status as a material consideration on a planning application, and so ACV listing could be an extra factor the local planning authority has to take into account when considering an application to change the use of a pub.  This then offers an extra layer of protection for communities wanting to keep venues operating as pubs.

Transport and Works Act Order upheld in heritage case

high courtIn Whitby v Secretary for Transport & Ors [2016] EWCA Civ 444 the Court of Appeal has given its reasons for dismissing challenges to the Transport and Works Act 1992 (TWA) Order and related planning permission and listed building consents for the Ordsall Chord rail scheme.  The judgment confirms that the decision-makers are entitled to undertake a wide ranging balancing consideration when considering harm to designated heritage assets.

All in Order

The Secretary of State for Transport made the Network Rail (Ordsall Chord) Order under the TWA and directed that planning permission for the work to be deemed to be granted under section 90(2A) TCPA 1990. The Secretary of State for Communities & Local Government granted ten application for listed building consent (for demolition, partial demolition and alteration of affected listed buildings).  The Inspector and the two Secretaries of State were presented with an alternative alignment to that proposed in the Order.  The scheme was recognised as delivering significant public benefits (at a cost of substantial harm to listed buildings, their settings and the character and appearance of nearby conservation areas).  An alternative option would have avoided this harm, but damaged the regeneration potential of a key development area.

Heritage duties in play

In deciding whether to grant listed building consent and planning permission the Secretaries of State were required to have “special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses” under sections 16(2) and 66(1) of the Planning (Listed Buildings & Conservation Areas) Act 1990.  Effects on conservation areas fell to be considered in the same way (under section 72(1)).  Preservation means doing no harm, with “considerable importance and weight” to be given to avoiding such harm (Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council [2014] EWCA Civ 137). The NPPF recommends that permission should be refused for any schemes that would lead to “substantial harm” to a designated heritage asset, unless there are substantial public benefits of doing so that outweigh the harm (or an absence of alternative uses and viability constraints combined with a beneficial end use of the site as part of the consent).

Working through the NPPF policies on heritage assets will generally allow an inference that the statutory duties have been properly taken into account (Jones v Mordue [2016] 1P&CR12).  The practice guidance in force at the time of the Inquiry suggested that there should be no other reasonable means of delivering the same public benefits (including through the useful alternative sites) where substantial harm is justified.

Alternative approaches

The Court held that the Inspector had clearly given considerable importance and weight to the desirability of preservation. Both the Inspector and the Secretary of State were also held to have taken the relevant NPPF policies into account.  Considering the case for the proposals and the harm they involved against the reasonable means of delivering similar public benefits (including through appropriate alternative sites with wider adverse effects) was entirely appropriate.   The ultimate test is whether having rigorously tested the harm it is considered necessary for the purposes of the wholly exceptional policy requirement.  The reasons why the alternative option was not appropriate had to be considered but this did not mean that the burden of proof had been switched to the objector.

The case confirms that whether alternatives that would cause lesser harm to heritage assets would themselves have significant difficulties or cause their own harm (whether to heritage assets or other planning interests) is a perfectly acceptable consideration in addressing the question of appropriate alternatives and the necessity for the harm to the assets. The weight given to the other harm relative to the heritage asset harm is a matter for the decision maker as long as he or she gives considerable weight to the statutory purpose.

Demolition job

The Government has published a new Demolition Direction, which confirms that permission is only required for demolition of buildings larger than 50m3 GEA.  This reflects the position following the Court of Appeal’s judgment in the R (Save Britain’s Heritage) v CLG [2011].  The court was concerned in Save that by carving out various buildings (including those that were listed, in a conservation area, or non-residential), the previous 1995 Direction avoided proper consideration of the need for Environmental Impact Assessment. EIA is not required for Listed Building or Conservation Area Consents.

The publication of the new Direction is a reminder that when demolishing buildings, owners need to be aware of the current position:

  • Size is key: building demolitions over 50m3 GEA are development requiring planning permission.
  • Permitted Development rights are generally* (but see EIA, conservation areas, PD below) available, but the PD regime requires owners to seek ‘prior approval’ from the local planning authority on the demolition method is now engaged.
  • EIA*: PD rights do not apply to EIA development.  Reliance on PD rights and ‘prior approval’ will often require some form of EIA screening.
  • Conservation Areas*: The requirement for Conservation Area Consent for demolition of buildings in a CA was abolished in England with effect from 1 October 2013.  PD demolition rights no longer apply in these areas, however, demolition will be an offence unless the building is under 115m3 GEA (or must be demolished due to a s106 agreement, enforcement notice or planning condition).  One oddity of the changes is that demolition of buildings of less than 115m3 GEA in these areas still require a planning permission, albeit that the criminal offence does not apply.
  • PD Games: Several authorities have used the post-Save need to rely on PD baringrights to issue Article 4 directions withdrawing demolition rights, to protect buildings that are neither listed nor in a conservation area.  The Baring Hall Hotel in Lewisham was protected from the use of PD rights by an Article 4 direction.  The planning authority’s subsequent refusal of express permission to demolish was upheld by the Planning Inspectorate on appeal.
  • Viability: clearing a site may be desirable to prevent the building becoming listed (either as a heritage asset or an Asset of Community Value).  In most cases, though, doing so will significantly reduce the Existing Use Value and risk creating an artificially low benchmark for development profitability when running toolkit appraisals in connection with affordable housing and other obligations.
  • Community Infrastructure Levy: demolished floorspace can be offset against CIL liability, but only where it was on-site at the relevant ‘first permits’ date (and part of it had been in continuous lawful use for at least six months during the preceding three years).  This will often be the point at which pre-commencement requirements are discharged. Demolishing too early, particularly where it is done in reliance on PD rights, will kill off what might be a substantial CIL saving.  Developers should ensure their phasing conditions and overall strategy are carefully drawn to maximise the ability to offset existing floorspace and proceed with site preparation work, whilst limiting the cashflow burden of CIL.  For many schemes this requires careful thought.