LGA submission to DLUHC and MoD: Supporting defence infrastructure and the future of time-limited permanent development rights

The Local Government Association (LGA) is the national voice of local government. We are a politically-led, cross party membership organisation, representing councils from England and Wales.

Our role is to support, promote and improve local government, and raise national awareness of the work of councils. Our ultimate ambition is to support councils to deliver local solutions to national problems. We welcome the opportunity to respond to this consultation.

• Councils want to be able to create great communities and support local involvement in designing, planning and creating great places for current and future generations. To succeed in meeting these challenges the planning system needs to be transparent, fit for purpose, and accessible to all.
  
   
• In the context of providing rapid support to local businesses during the pandemic, we were broadly supportive of the temporary permitted development rights (PDR) enabling markets to be held by or on behalf of local authorities for an unlimited number of days per year and the provision of moveable structures related to this use. However, we do not support the proposals in the consultation to make these permanent.
  
   
• We also do not support the proposed new nationally permitted development rights to support delivery of infrastructure for Defence on the Defence estate. These proposals do not support the Government’s aspirations as outlined in the Planning White Paper. Those aspirations, which we share, include greater democratic accountability and transparency, tackling climate change, improving biodiversity, protecting our heritage, planning for beautiful and sustainable places, and developing the necessary and high-quality infrastructure and affordable homes we need. 
  
   
• We are concerned that the Government continues to extend PDR across different types of development ranging from converting Commercial, Business and Service use  class to residential use on high streets, to expansion of public service infrastructure and the Defence estate, when they have not yet responded to submissions to the Planning White Paper consultation.
  
   
• Only a locally-led planning system in which councils and the communities they represent have a say over the way places develop will ensure the delivery of high-quality affordable homes with the necessary infrastructure to create sustainable, resilient places for current and future generations.
  
   
• The LGA supports the Government’s ambitions to level up the country and build back better by building back local. Investing in local places is one of the most powerful tools of the Government’s Levelling Up agenda. With adequate long-term resources and freedoms, councils can deliver world-class local services for our communities, tackle the climate emergency, and ensure all parts of the country are able to prosper in the future.
  
   
• Given the impact of the COVID-19 pandemic, all of Government is understandably focused on the economic recovery of local areas around the country. We are concerned, however, that making temporary rights permanent now may lead to unintended and irreversible consequences. This will undermine an area’s decisions and long-term strategy for growth, as agreed through their Local Plan.
  
   
• The pandemic has led to an acceleration of changes to the reasons people visit and use high streets. As leaders of place, councils have already been working hard to repurpose their town centres and respond to longer-term trends in how our high streets are used. Councils want to do what they can to adapt but are held back by a lack of resources and planning limitations that arise as a result of the increasing scope of PDR and the continuing complexity of the compulsory purchase order process.
  
   
• We are concerned that these proposals have been put forward prior to conducting impact assessments on business, local planning authorities, communities and those with a protected characteristic. We recommend that impact assessments are undertaken prior to any final recommendations and reflected in any proposals taken forward.
  
   
• Councils will need to be properly resourced for any additional burdens due to any of these proposals being taken forward. Councils need to be able to recover the full cost of processing planning applications. Planning fees do not cover the true cost and taxpayers currently subsidise the cost at a rate of nearly £196 million year. 

Q.1.a. Do you agree that the right allowing markets to be held by or on behalf of local authorities for an unlimited number of days per year (Part 12, Class BA) should be made permanent?

Q.1.b. Do you have any evidence as to any benefits and impacts as a result of introducing this right for markets, or have views of future impacts were the right made permanent?

Q.1.c. Do you think that there should be a limit on the number of days that this right can be used for in a calendar year?

Q.1.d. Do you have views on whether there should be additional restrictions on the use of this right to mitigate against potential impacts of making this permanent, including proximity to scheduled monuments?

LGA view

The LGA supports maintaining the temporary permitted development right provisions for markets until 23 March 2022, to support ongoing recovery from the economic impacts of COVID-19. However, we do not support making the right permanent. Permitted development rights (PDR) are an ad hoc, disconnected approach that undermines councils’ and their communities’ strategic long-term decisions, and ability to make decisions that reflect local need and preserve and enhance the unique and distinctive character of their area. These proposals come despite the Government’s own research which found that PDR undermined the ability of councils to bring about positive changes to their places by limiting their influence to repurpose town centre assets. Councils and their communities have already been left with a long-term legacy of negative impacts resulting from some of the 19 amendments to the General Permitted Development Order since 2015. 

The Government has rightly identified local authorities as having a critical role to play in the future of high streets and we welcomed the original and subsequent increase in funding through the Future High Streets Fund. The Stronger Towns Fund and Towns Deal funding will also help many places to adapt to changes and make the most of opportunities. However, the pandemic is likely to impact on many more places and those already shortlisted for support will require more ambitious and faster support. Councils have taken an active role in supporting local businesses throughout the pandemic by distributing Coronavirus grant funding for small and medium businesses. This includes the Small Business Grants Fund scheme and the Retail, Hospitality and Leisure Business Grants Fund.  

Rather than making the temporary PDR arrangements permanent, the LGA recommends instead that councils could have local flexibility by enabling them to introduce, for example, a temporary extension until the end of 2022. It is important councils have the ability to make this decision together with their communities.

If the Government does decide to make the current the temporary PDRs permanent, then a prior approval application process should be in place. This could consider noise, light, flood risk, and other impacts on residential and businesses, as well as a community safety assessment for potential problem hotspots. There should also be consideration of wider implications, such as licensing. 

We recommend that the Government prepares an impact assessment to understand how the proposed amendment may impact on people who share a protected characteristic before the right goes ahead. It is important to stress that only a locally-led planning process with the appropriate amount of time for public consultation will ensure that people with protected characteristics in each area will be able to voice their concerns and identify how this will impact on them.

Q.2.a. Do you agree that the right allowing for the provision of moveable structures (Part 4, Class BB) should be made permanent?

Q.2.b. Do you have any evidence of benefits and impacts as a result of the introduction of the right for moveable structures (Part 4, Class BB), or have views on potential future impacts were the right made permanent?

Q.2.c. Do you think the right for moveable structures (Part 4, Class BB) should be limited to 56 days per calendar year?

Q.2.d. Do you think that the right for moveable structures (Part 4, Class BB) could be greater than 56 days, or allowed for an unlimited number of days, in the curtilage of non-listed buildings?

Q.2.e. Do you agree that there should be a height limit for the moveable structures of 4 metres?

Q.2.f. Do you agree that there should be a size threshold on the moveable structures allowing them to be up to 50% of the footprint of the existing building on site?

Q.2.g Do you have any evidence of impacts specifically on heritage assets, including listed buildings as a result of the introduction of the right for moveable structures (Part 4, Class BB). Do you have any views on potential future impacts on heritage assets were the right made permanent?

Q.2.h. Do you have views on whether there should be any other additional restrictions on the use of this right (Part 4, Class BB) to mitigate against potential impacts of making this permanent?

LGA view

The Part 4, Class BB temporary permitted development right allowed for the provision of moveable structures within the curtilage of a pub, café, restaurant, or historic visitor attraction. The temporary right is currently in place until 1 January 2022, has been very valuable for the hospitality and tourism sectors, and will continue to be in the immediate future as we continue to recover from the economic impact of the pandemic. Recent Office for National Statistics (ONS) data shows that national retail footfall has continued to rebound following the lifting of legal restrictions to control COVID-19 in England, although for September 2021 is still only at 80 per cent of the level seen in the same period in 2019. The LGA does not, however, support making these new provisions permanent now because the impact of the pandemic is not yet fully understood, but there has already been change in how people use their local areas. This looks set to continue as homeworking and living more locally will likely continue and may increase. Councils want and need all the right tools to make and shape great places, and have clear, strong ambitions for their local recovery. 

If the Government makes this right permanent, we agree with the proposal that there should be both a height limit and size limit for the moveable structures. This will need to depend on the location and therefore decisions regarding size and scale are best left to individual councils and their communities. As an example, there are concerns  about how this right is impacting on heritage sites - allowing councils to take into consideration any heritage assets in size and scale allowances would be helpful. We recommend that a prior approval process should also be in place. This could consider noise, light and other impacts on residential and businesses, as well as a community safety assessment for potential problem hotspots. This should complement existing licensing powers that enable conditions to be added to premises licences, for example, restricted hours on outside spaces. Councils will also need powers to intervene beyond just noise legislation if we are to protect our nation’s heritage and ensure visitors want to continue visiting places.

We recommend that the Government prepares an impact assessment to understand how making the temporary right  permanent may impact on people who share a protected characteristic before the right goes ahead. It is important to stress that only locally-led planning processes with the appropriate amount of time for public consultation will ensure that people with protected characteristics in each area will be able to voice their concerns and identify how this will impact on them.

More broadly, as needs and priorities change, councils also need the tools and resources to be able to shape vibrant places for their local communities with a mixed offer including retail, culture, sport and leisure provision. The Housing, Communities and Local Government Committee concluded from their inquiry on High Streets and Town Centres 2030 that planning is crucial to high street and town centre transformation and the Government should therefore ensure that planning powers are fit-for-purpose. They asserted that the Government’s PDR policy risks undermining the strategic vision that a community has developed for its high street or town centre and preferred an approach whereby Local Plans identify where housing should be situated.

The LGA recently sought views from member councils in advance of the Government’s announcement of its intention to consider whether and how to build on the temporary pavement licence provisions introduced by the Business and Planning Act 2020 on a more permanent basis. There was a clear view that some of the current provisions are not sustainable on a permanent basis, in particular the expedited process that reduces the time available for local residents to respond to applications. Additionally, there have been conflicts between the new regime and local residents experiencing noise nuisance. Whilst some residents have accepted this on a temporary basis, in the long term there is a need for a system that provides equal weight to the needs of different parties and allows time to consider these.

Councils and the LGA would like to work with the Department for Levelling Up, Housing and Communities (DLUHC) and other departments to develop a new approach that adopts the advantages of the current Act, but in a way that balances the needs of local residents, businesses and councils as the regulators tasked with managing this issue. Decisions regarding pavement licensing will vary from place to place, and it is important to recognise these local factors and decisions if the objective of the change is to deliver a permanent al fresco dining offer as well as a more streamlined permanent licensing framework.

Local government would like to see the following principles in a reformed pavement licensing system. These include a clear and specific legislative framework; a streamlined process with limited bureaucracy e.g. the ability to grant licenses quickly; revocation powers, local flexibility enabled through local policies and conditions; the ability for the authority issuing the licence to be able to enforce against it; consideration of security in light of the possibility of the Protect Duty being placed on councils; and consideration of consent of frontages. Any regime should be self-funded with locally set fees giving councils the ability to recover all costs.

Q 5. Do you agree that new rights should be created that will enable MOD to develop more single living accommodation within the perimeter of their sites up to 25% of the existing floorspace for single living accommodation at a Defence site to support service personnel? Please give your reasons.

Q 6. Do you agree that new rights should be created that will enable MOD to develop other types of workspace up to 35% of the existing floorspace within the perimeter of their sites? Please give your reasons

Q7. Do you agree that supporting the redevelopment of Defence assets and Defence bases will provide an opportunity for new jobs in regions across the UK and will underpin Defence’s active role in communities across the UK? Please give your reasons

Q 8. Do you agree that the permitted development rights should be applied to the wide range of buildings needed by MOD? Please give your reasons

Q9. Do you agree that a greater percentage should apply for the workspace provision? Please give your reasons.

Q 10. Do you think restricting the location of development to 15m from the perimeter of the military site is sufficient or would a greater distance be better? Please suggest what would be an appropriate distance and give your reasons.

Q11. Do you think there is scope to raise the 4000 sqm footprint trigger for prior approval on the very largest operational military sites? Please suggest what would be an appropriate alternative limit, and give your reasons.

Q12. Do you agree that locating taller buildings together would be a good idea? Please give your reasons

Q13. Do you think that the exercise of the permitted development rights in flood risk zones should be subject to prior consultation? Please specify which bodies should be consulted.

Q.14. Do you think that the exercise of permitted development rights in relation to sites with land contamination should be subject to prior consultation? Please specify which bodies should be consulted.

Q 15. Do you think it is appropriate that only SSSI, Article 2(3) land, listed buildings and Scheduled Monuments should be excluded from the permitted development rights? Please give details if you think it is appropriate or if not.

LGA view

The government is proposing to introduce two new permitted development rights relating to Ministry of Defence (MOD) land and property. Firstly, a right that will enable the MOD to develop more single living accommodation (and its supporting infrastructure e.g. dining, welfare, storage facilities) within the perimeter of their sites by up to 25% of the existing floorspace for those facilities. Secondly, a right that will enable the MOD to develop other types of workspace up to 35% of the existing floorspace within the perimeter of their sites. We do not support these two proposals because they will impact on the immediate and surrounding areas and any changes therefore need go through the existing planning application process.

Any plans for expansion should be required to have been identified in a council’s Local Plan so that councils and communities can identify where there may be impacts on the wider community and their response. These proposals will, for example, impact on existing infrastructure that support and provide services to communities as well as the timing for delivery of other planned infrastructure. Additional impacts such as parking and transport access will also need to be considered as these changes could impact on the wider transport network. Councils will also want to ensure that new development supports their local climate change ambitions and supports environmental aspects such as biodiversity net gain.

We recognise that in an emergency situation there might be a justified need to introduce temporary permitted development rights to enable the quick mobilisation of new MOD infrastructure, similar to the way in which the temporary PDR allowed for emergency development by local authorities or health service bodies to respond to the spread of the Coronavirus. However, under normal circumstances the MOD should be considering planning timescales as part of its Defence infrastructure plans, so that the impact of development can properly be taken into account as part of a full planning application process.If the Government does decide to take the proposal forward then councils should have the ability to determine together with their communities whether a building can increase in size and if so, by how much, and to what extent.

The consultation document states that Defence also makes a significant contribution by providing local jobs. We agree that Defence may provide a level of employment to some local communities. However, as noted in our response to the Government’s recent consultation proposing the extension of PDR for other public service infrastructure, Defence does not provide the same community co-benefits for shared use that other public sector infrastructure such as schools, colleges and universities, and hospitals do. As with other public sector infrastructure, expansion of Defence infrastructure which may have an impact on the wider infrastructure network and local communities should be required to be consulted on through the existing planning process. Councils will need the ability to ensure that new development does not undermine national and local ambitions to achieve net zero and address climate change, whilst supporting biodiversity net gain and achieving wider environmental outcomes.

The consultation document states that estimates show that Defence infrastructure projects alone will support up to 100,000 jobs over the next 20 years. However, the Defence’s employment strategy is at odds with this claim, with an aim to continue to reduce its civilian workforce across its 570 sites throughout the UK and overseas. 

The LGA supports the putting skills at centre stage, as noted in our On the Day Briefing for the Autumn Budget and Spending Review. The LGA supports the Government’s ambitions to level up the country and build back better by building back local. Investing in local places is one of the most powerful tools of the Government’s levelling up agenda. As outlined in the LGA’s briefing paper on levelling up, with adequate long-term resources and freedoms, councils can deliver world-class local services for our communities, tackle the climate emergency, and ensure all parts of the country are able to prosper in the future.

We also raised the point that national government has lacked a strategic and joined-up plan to drive local economies and empower local leaders to take effective action. Instead, national support for local growth has been characterised by a lack of coordination between departments and a complex framework of national funding and support. Previous LGA research found that £23 billion of public money was spent on growth, regeneration and skills, fragmented across 70 different national funding streams and managed by 22 government departments and agencies. More recently, Government’s new Plan for Growth has yet to demonstrate how it will connect an ambitious national plan with delivery on the ground. 

Councils should have flexibility to determine with their communities which other types of areas the right should not apply to, such as Green Belts or areas of flood risk such as floodplains or flood zones. Should the Government go ahead with the proposals, then we would agree that PDR should be subject to prior approval in cases where land contamination is present.

All buildings will also need to adapt to increasing flooding. We previously recommended to Government that building regulations should be changed to include mandatory flood protection measures for new properties. These would require introducing measures like raised electrical sockets, fuse boxes, controls and wiring, sealed floors, and raised damp-proof courses. This can be co-ordinated with relevant government departments such as the Department for Environment, Food and Rural Affairs (DEFRA).

The LGA supports the proposals for modernisation of existing workspaces and the Defence estate, for example in relation to carbon emissions. We have welcomed the Government’s Heat and Buildings Strategy which sets out the Government’s plan to decarbonise housing and buildings as an essential component to the delivery of the UK’s legal requirements to achieve Net Zero. This objective is also linked to a range of opportunities for instance in creating jobs, supporting businesses, and the wider levelling up agenda.

As with other public sector infrastructure, expansion of Defence infrastructure which may have an impact on the wider infrastructure network and local communities should be required to be consulted on through the existing planning process. Additional impacts such as transport access to the local roading network will need to be considered as these changes could impact on the wider transport network.

Councils will need to be properly resourced for any additional burdens due to any of these proposals being taken forward. Planning fees also do not cover the true cost of processing planning applications, and taxpayers currently subsidise the cost at a rate of nearly £196million a year. 

Q16. Do you think that any of the proposed changes in relation to permitted development rights for Defence could impact on: a) businesses b) local planning authorities c) communities. Yes/No/Don’t know. Please give your reasons. It would be helpful if you could specify whether your comments relate to a) business, b) local planning authorities, or c) communities, or a combination and which right or rights they particularly relate to.

Q17. Do you think that any of the proposed changes in relation to permitted development rights for Defence could give rise to any impacts on people who share a protected characteristic? (Age; Disability; Gender Reassignment; Pregnancy and Maternity; Race; Religion or Belief; Sex; and Sexual Orientation. Yes/No/ Don’t know. If so, please give details and specify which right/s any comment relates to.

LGA view

We are concerned that these proposals have been put forward prior to conducting impact assessments on business, local planning authorities, communities and those with a protected characteristic. We recommend that these impact assessments be undertaken prior to any final recommendations and reflected in any proposals taken forward. We have raised this concern in our response to other Government’s consultations on PDR in the past year.

The Ministry of Defence’s diversity and inclusion strategy states that diversity and inclusion is relevant to everyone in Defence. It is about creating and sustaining an environment where people feel able to be authentic in the workplace; where everyone’s needs are considered; and where people feel respected and able to achieve their full potential.

These proposals, whilst intended to primarily impact on Ministry of Defence land and activities, will impact on the immediate and surrounding areas. Any changes therefore need go through the existing planning application process. Any plans for expansion should be required to have been identified in a council’s Local Plan so that councils and communities can identify where there may be impacts on the wider community and their response. These proposals will, for example, impact on existing infrastructure that support and provide services to communities as well as the timing for delivery of other planned infrastructure.