Article 4 Directions – the bar has been raised, but what will be the effect?

Postscript, 12 July 2021. You may have heard that the Mayor of London has published Strategic evidence to support Article 4 Directions, to help LPAs in London wishing to impose commercial to residential Article 4 Directions within the new policy environment. This has been drawn up by the Mayor taking into account the Written Ministerial Statement of 1 July, with the Mayor explaining that "the important contributions of the Central Activities Zone and Northern Isle of Dogs" need to be safeguarded, as do industrial areas and creative production space, and that town centres and high streets need to "remain vibrant places at the heart of local communities". It will be interesting to see to what extent this actually helps LPAs, or whether in practice the Secretary of State will exercise his power to intervene nonetheless.

Back in April, we wrote about the potential impact on landowners and developers of the new Class MA commercial to residential permitted development (PD) right. We discussed how local planning authorities (LPAs) might find their ability to control the use of the new PD right significantly limited if the government adopted proposals to restrict the use of Article 4 Directions as consulted upon in January 2021. On 1 July 2021, in a Written Ministerial Statement, the Secretary of State for Housing confirmed that, with effect from that date, the proposed restrictions on the use of Article 4 Directions would indeed take effect. The National Planning Policy Framework (NPPF) will be amended formally later this year, but until then LPAs must take the changes into account when they are considering whether to make use of an Article 4 Direction to restrict the operation of PD rights. This might seem like good news for some, but what could it mean in the longer term?

Changes to the NPPF

Once the changes are formally made to the NPPF, a new paragraph 53 will read as follows:

The use of Article 4 directions to remove national permitted development rights should:

• where they relate to change from non-residential use to residential use, 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.

We discussed the potential implications of the proposed changes in our blog of 10 February 2021. As regards limiting the use of Article 4 Directions in relation to residential PD rights, the government consulted upon two options, deciding to adopt the first of the two (so rejecting restricting the use to where necessary to "protect an interest of national significance") but choosing to use the word "necessary" instead of "essential", which is arguably a lesser test although still very restrictive. Otherwise, the changes that are being made to the NPPF are pretty much as consulted upon.

What does this mean?

From now on, LPAs are going to find it very hard to restrict the use of PD rights in their area through using Article 4 Directions. This will be more so for residential PD rights than non-residential, but in all cases "robust evidence" to justify the use is now needed, to which we can assume there will be a high bar, and the scope of any Article 4 Direction which is used must be limited geographically to the smallest area possible. Gone are the days when an entire area could be covered by an Article 4 Direction.

Whilst this may seem to be good news for developers wishing to make the most of PD rights, the benefits may be short-lived. LPAs are likely increasingly to use conditions in permissions to restrict future change of use without express consent, given that it may often be relatively easy for LPAs to offer "clear justification" for the use of conditions as required by the current paragraph 53 of the NPPF. (Note that the drafting of the new paragraph 53 is currently silent on the use of conditions to restrict national PD rights, although we would expect this to be retained in some form.)

However, until such time as any increased use of conditions works its way through the system, those owners who have relied on the ability of local authorities to prevent inappropriate development in their area through tools such as Article 4 may find it harder now to predict how the mix of uses around them will change. Deregulation may empower developers, but in this case it could also add to the already high levels of uncertainty surrounding how town centres in particular are going to look in a few years' time.

For further information please contact: