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Representation on
Change of Use
in the Planning System

Introduction The National HMO Lobby is an association of local community associations throughout the UK, concerned about the impact of concentrations of houses in multiple occupation (HMOs) on their communities. As such the Lobby was established with the objective (among others) of lobbying for amendment of certain changes of use in the planning system. The Lobby therefore welcomes the Issues Paper How change of use is handled in the planning system from Communities & Local Government (CLG). The Lobby hopes that its experience will prove valuable to the government's discussion of this topic.
0.1 The Lobby is interested in reviewing change of use legislation, that is, the Use Classes Order (UCO) and the General Permitted Development Order (GPDO). But it does consider that the government, in its enthusiasm for deregulation, exaggerates the burden imposed by the Order. The Issues Paper says, "We want to remove unnecessary barriers" (paragraph 8, page 4), and "This can be a burden on business in terms of time and cost" (paragraph 9, page 4). But application for planning permission need be neither expensive nor onerous: straightforward applications can be turned round promptly, and fees for most planning applications are only £335 or less. And if the development is in accord with national and local policies, then approval need not be problematic (in fact, over 80% of planning applications are approved). After all, the legislation simply requires that permission is sought, and carries no implication of refusal. As the Issues Paper notes, any change of use "will be determined in the first instance by the local planning authority" (paragraph 2, note 2, page 3). The local planning authority (LPA) will develop policies in order to guide its implementation of the legislation. The UCO simply requires of developers the courtesy of notifying their neighbours of their intentions.
0.2 The Issues Paper states, "We want to make sure that new development can take place to contribute to the delivery of strong and vibrant communities" (paragraph 8, page 4). This is precisely the aim of the Lobby. Its concern was that development was taking place which actually undermined strong and vibrant communities (because change of use to HMO meant replacing a stable population, on which strong communities depend, by a transient population). The Lobby sought amendment of the UCO precisely in order to ensure "balance between supporting growth and ensuring communities have the opportunity to influence their environment" (paragraph 8, page 4).
0.3 Accordingly, when it was established in 2000, the Lobby's stated objective was 'to lobby for planning control of HMOs', and to this end 'the Lobby has advocated revision of the various Use Class Orders in the UK.' The Lobby responded to the review of the Use Classes Order in England begun in 2001, culminating in the amendment of 2005 (without success). Meanwhile, the Lobby lobbied successive Ministers, until a consultation was promised in 2007. In 2008, ECOTEC published Evidence Gathering, and then in 2009, CLG held a consultation on Houses in Multiple Occupation and possible planning responses. The Lobby finally achieved its objective when Statutory Instrument 2010 653 came into force on 6 April 2010, introducing a new use class C4 for HMOs.
0.4 The Issues Paper incorrectly states in paragraph 14 (page 5) "In October 2010 this was in effect overturned and the legislation was amended allowing permitted development rights for changes from class C3 to C4." [Incidentally, this permitted development is omitted in Annex B.] In fact, the government accepted and retained the amended UCO. It was the GPDO which was amended, and the Minister made it clear that the intention was to enable LPAs to use Article 4 Directions to implement the UCO locally. Most of the Core Cities are doing so (Bristol, Leeds, Manchester, Newcastle, Nottingham, Sheffield), as well as many other large and small towns (including Bath, Bournemouth, Canterbury, Exeter, Hatfield, Leamington Spa, Loughborough, Margate, Milton Keynes, Northampton, Oxford, Ormskirk, Plymouth, Preston, Southampton, York).
0.5 The Lobby considers that the final outcome of changes to legislation on HMOs (though far too late) provides a model for how change of use may be handled in the planning system.

1 Should material change of use continue to be considered as 'development' and handled through the planning system? If not what alternative approach might be used?
1.1 The Issues Paper does not make clear (to the non-professional) what is meant by 'development'. The Paper seems to indicate that development includes new structures and/or new functions (one may or may not entail the other), which impact on the character and/or amenity of the locality [note]. In this tight little island, it is clear that many new uses will need to take place on land or in buildings already in use, rather than on 'virgin [green] soil'. In this case, it seems unavoidable that much development will always entail change of use. In this context, the Lobby considers that the existing UCO achieves the right balance in respect of the impact of such changes on local character and amenity.
1.2 The planning system was devised in order to manage development. Any alternative would have to undertake the same role. In the absence of any proposal for another approach, it is difficult to see any advantage in introducing an alternative.
1.3 In both cases, examples of alternative systems in other countries could be helpful.

2 Is the Use Classes Order an effective deregulatory tool to simplify the approach to managing change of use nationally in the planning system? If not, do you have views on what an alternative deregulatory approach to managing change of use might look like?
2.1 If development comprises change of use (among other things), then a simplified system of what counts as distinct usage seems a useful compromise. On the one hand, requiring planning permission for every conceivable change of use would impose a huge burden on the planning system and therefore on any development at all. On the other hand, a complete free-for-all would leave local communities utterly vulnerable to exploitation. Again, if alternatives are to be considered, it would be helpful to know what these might be, with examples from other systems.

3 The Use Classes Order and associated permitted development rights currently are a national regime for changes of use without planning applications. However, they can be extended locally to meet local needs through Local Development Orders (and in future, through Neighbourhood Development Orders). Is this model effective and is it sufficiently flexible to meet most circumstances?
3.1 The present model comprises a national regime of use classes, together with local flexibility to deploy this regime. It "offers a large degree of consistency nationally with local variation only where there are specific local issues" (Question 3 note, page 9). In principle, this is an effective model. For instance, the existence of class C4 enables HMOs to be identified as a distinct land use; the use of Article 4 Directions enables this classification to be activated locally, where necessary.
3.2 Having said that, whether in practice the model is sufficiently flexible is another matter altogether. For instance, on the one hand, the introduction of the new use class C4 was the outcome of a long and laborious process. Successive Housing Acts (1985, 1996, 2004) recognised the emerging significance of HMOs, consequent upon social changes like developing benefit dependency, expanding higher education, increasing seasonal and migrant labour, declining housing availability, and so on. But the impact of HMOs on the character and amenity of neighbourhoods was not finally recognised in the planning system until the UCO amendment of 2010. Again, on the other hand, the use of Article 4 Directions to implement class C4 (removing permitted development rights for change of use from class C3) is also long and laborious. In order to avoid compensation claims, LPAs are required to give lengthy notice of the Direction, and to carry out a consultation, both of which mitigate against flexibility and are resource-intensive (as the LPAs noted in 0.3 above have experienced). Both the national regime and local implementation therefore need closer consideration (see 4 and 5 below respectively).
3.3 Localised regimes of use classes (as suggested in the Issues Paper, page 9) are impractical: they would entail each LPA re-inventing the wheel; and they would remove consistency nationally between one LPA and another. They would place greater burdens on development and the planning system, both locally and nationally.
3.4 Whilst the regime should be national, flexibility should be local. If decision-making is to be local, as is promised in the Localism Bill, this is where flexibility should be invoked. It is far easier to introduce permitted development rights than to remove them. If national deregulation gives an increase in permitted development rights, this undermines local decision-making, and obliges LPAs to reinstate regulation through cumbersome Article 4 Directions. However, if the national regime assumes permission is necessary for change of use, LPAs can much more easily introduce permitted development through Local Development Orders (see also 5 below).

4 Do you think that the current classes of use in the Use Classes Order are still appropriate?
4.1 The current classes of use in the UCO are still necessary. Whether they are sufficient is another matter. As the Issues Paper points out, "there are other factors, such as more people working from home, possible temporary uses of buildings, changes in shopping habits and new industries which need to be better reflected" (paragraph 15, page 5) and "there have been many changes in how we live and work, the nature of new businesses being created and the growth of leisure interests. This is reflected in public behaviour, tolerance and expectation which perhaps should also feed through into the planning system" (Question 4 note, page 9). In consequence, the UCO has "changed over time … It is almost 10 years since the last substantial review of the Use Classes Order" (Question 4 note, page 9). Two points need to be made.
4.2 The Issues Paper refers to changes that have been made in the A classes, the B classes and the C classes. It refers to future possible changes, "such as children's homes, care in the community establishments and betting shops" (Question 5 note, page 10). Two tendencies are evident. "The A classes have been separated out further to take greater account of the land use impact of hot food takeaways and drinking establishments" (Question 4 note, page 9), and "in April 2010 the Government introduced a separate use class for houses in multiple occupation" (paragraph 14, page 5). Here, the number of use classes is actually increased. On the other hand, two recent consultations on change of use to schools and to residential accommodation (paragraph 14, page 5), while not removing use classes, do propose to remove their application by extending permitted development rights [though such rights for schools have not been adopted]. The former examples both originate from local grass-roots concerns (the Big Society in action, in fact). The latter arise from national government policy. Many local communities, including those represented by the National HMO Lobby, would like to see a more fine-grained UCO, which allowed more subtle distinctions between the uses of land and buildings.
4.3 As the Issues Paper notes, "it is almost 10 years since the last substantial review of the approach to change of use" (paragraph 15, page 5). However, social change can take place very rapidly (the proliferation of HMOs in the last decade is a case in point). Rather than leave consideration of the UCO to ad hoc circumstances (and the campaigning efforts of local communities), there is a case to be made for periodic review. The UCO could be subject to appraisal, say, every five years, to ensure that it remains fit for purpose in a changing society. (Alternatively, it could be the subject of a rolling review, each main class, A, B, C, D and sui generis uses, being appraised in successive years.) Changes need not be made, but all interested parties should be offered an opportunity to recommend amendments to the UCO.

5 The current regime seeks to secure a balance between deregulation and protecting the citizen. Has the right balance been struck or should there be more deregulation than currently allowed through the Use Classes Order and permitted development rights?
5.1 As noted above (3.4) if there is to be deregulation, this should be at the local level, not the national. As noted under Question 10 (page 12) "this Government places great importance on the involvement of the neighbourhood in plan making at the neighbourhood and local levels." This emphasis is evident in the Localism Bill, currently progressing through Parliament. This Bill sets great store by Neighbourhood Plans. The Lobby is very concerned that recent consultations on change of use, relating to schools and to residential accommodation (noted at 4.2 above, and in paragraph 14, page 5), actually undermine local autonomy. If the current regime "seeks to secure a balance between deregulation and protecting the citizen", then the Lobby fears that there is a tendency towards loss of balance. In the interests of localism then, deregulation should take place, not at the national level, but at the local level, through greater encouragement by national government of the use by local government of Local Development Orders.
5.2 The government has argued that Article 4 Directions may be used by LPAs to remove permitted development rights, and reinstate requirements for planning permission - as in the case of class C4, HMOs. This approach however has a number of disadvantages. First of all, it is inefficient: it requires (a) the instatement of a use class (by amending the national UCO), (b) the introduction of permitted development for change of use to this class (by amending the national GPDO), and (c) the subsequent removal of this permitted development (by introducing a local Article 4 Direction). It would be simpler to introduce (a) a new use class, and (b) a Local Development Order, providing for permitted development. Secondly, it is costly to the LPA: currently, planning applications required by an Article 4 Direction are free; the costs to the LPA are not recouped from fees (hopefully, the recent consultation on planning fees will remove this anomaly). Thirdly, in order to retain local autonomy, LPAs would have to introduce Directions 'on spec', just in case a developer wished to take advantage of the permitted development - again, an inefficient process. Finally, in order to avoid compensation claims, a LPA has to give twelve months notice of a Direction - which immediately removes its effectiveness as a development control mechanism. If Article 4 Directions are to be used, LPAs should be able to announce that they intend to introduce a Direction whilst the proposed permitted development is under consultation, with a view to the Direction taking effect at the same time as the GPDO amendment comes into force.

6 Does the current operation of the Use Classes Order go far enough to remove inappropriate barriers to growth and allow for potential for changes of use that boost growth?
6.1 The Lobby is disappointed that this Question is so contrary in spirit to the Background discussion in the Issues Paper. The Paper states at paragraph 8, "We want to make sure that new development can take place to contribute to the delivery of strong and vibrant communities" (page 4). But the notes to Question 6 refer solely to "supporting economic growth" (page 10), without qualification. Growth of all sorts can take place which is actually profoundly harmful to local communities. The development of concentrations of HMOs in university towns, in coastal towns, in market towns, has seen huge growth in the private rented sector. But this has been at the expense of (a) the availability of long-term family housing, and (b) of the cohesion of local communities. It was the weakness of the UCO which led to such negative impacts on local communities. This is another reason why deregulation should be at the discretion of LPAs.
6.2 Furthermore, excessive slackening of the UCO control mechanism could lead to greater burdens. Increases in LPA workloads are noted below (9.2). But greater burdens would also be manifest in the burden of uncertainty for developers and considerable potential burdens on communities from less fettered developments (such as those leading to the formation of the National HMO lobby, noted above).

7 How should ancillary uses be treated within the Use Classes Order?
7.1 In the interests of local self-determination, as promised by the Localism Bill, the Lobby urges a circumspect approach to ancillary uses.

8 Are the current permitted development rights relating to the temporary use still appropriate? If not, how do you think they should be amended?
8.1 Again, in the interest of local self-determination, control of permitted development rights for the temporary use of land should be delegated to LPAs.

9 Should change of use of buildings be allowed on a 'temporary' basis without the need for a planning application?
9.1 Again, in the interest of local self-determination, permitted development rights for the temporary use of buildings should be at the discretion of LPAs, through Local Development Orders.
9.2 The notes to Question 9 raise the issue of workload for the LPA. The Lobby is in principle in support of local self-determination. But in practice this entails a significant workload across the board for LPAs, not just in the enforcement of the temporary use of buildings. This fact should be recognised by national government in its support for localism.

10 In addition, the review team would welcome any further views or evidence on how the current Use Classes Order and associated permitted development regime is working.
10.1 The notes to Question 10 indicate how intimately change of use in particular, and the planning system in general, are implicated in the whole life of society. Any changes therefore should be cautious - small-scale, incremental, and widely consulted. In fact, any revision to the UCO or GPDO should continue to carry forward the basic principles underlying the British town planning system and avoid the ills that brought it into being in the 'thirties and 'forties.

Conclusion The National HMO Lobby welcomes the opportunity of the government's Issues Paper on How change of use is handled in the planning system to contribute to review of the Use Classes Order. The Lobby wishes to make five main points about change of use in the planning system.
11.1 The Lobby welcomes the opportunity to review change of use in the planning system, especially the workings of the Use Classes Order and the General Permitted Development Order, and it considers that its own experience of amendments to both, relating to HMOs, provides valuable lessons.
11.2 The Lobby supports the aim of encouraging sustainable development, but emphasises that sustainability involves the communities within which any development takes place. In the spirit of the Localism Bill, therefore, it is essential that local communities retain powers to conserve their long-term cohesion and sustainability.
11.3 In this spirit of localism, national legislation should provide a menu of use classes, available for application locally. To recognise diversity of usage, this menu should be more fine-grained than at present (compare the recent amplification of both the A Classes and the C Classes). And to keep abreast of changing usage, it should be subject to periodic review, not reliant on occasional last-resort campaigns.
11.4 And again in the spirit of localism, local legislation should be able to adapt national provisions to reflect local needs. Local Development Orders should be able to provide permitted development rights, where required. At the same time, Article 4 Directions should be able to remove permitted development rights, where required locally (where these concern new use classes, LPAs should be able to introduce Directions immediately, without risk of compensation claims, and with appropriate fees).
11.5 Finally, the Lobby draws attention to the implications of localism - that increased localism is very desirable, but it is crucially dependent on adequate local resources.

Dr Richard Tyler, National HMO Lobby, August 2011

Note: In fact, the Town & Country Planning Act 1990, section 55, provides the following definition: "development" means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.

National HMO Lobby
email: hmolobby@hotmail.com website: www.hmolobby.org.uk