NEW APPROACHES TO ARTICLE 4

The Blog


Previously we recapped a number of changes to planning policies impacting town centres, including limitations on the adoption of Article 4 directions - link here.

The most recent update to the NPPF (July 2021) introduced new guidance on how Councils can impose Article 4 directions, set out below:

  1. 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.

This limitation that Article 4 directions should ‘apply to the smallest geographical area possible’, presents a potential challenge for Councils. Essential cores of primary shopping areas become difficult to define when Class E allows for shops to switch to offices, gyms etc. at will, which can result in a somewhat fluid ‘essential core’ of a primary shopping area.

This sets a risk that the essential core may have already changed from retail and leisure uses to a gym, nursery or office by the time an Article 4 direction takes effect, providing a very different contribution to the centre and local community than when it was initially defined. As such, Councils should look to undertake this process as early as possible.

Robust evidence for adopting Article 4 directions would need to meet three key tests, demonstrating the vulnerability of the core, the risks to the core, and the value of the core.

The vulnerability of a core can be identified through mapping the distribution of town centre uses spatially and over time, highlighting trends in vacancy rates and the overall provision of commercial, business and service uses. Demonstrating a history of changes away from main town centre uses, alongside a lack of supply and falling demand will underscore the vulnerability of a core, particularly when accompanied by data on the difference in values between residential accommodation and commercial, business and service uses.

Once it has been demonstrated that a core is vulnerable to the impacts of permitted development rights under Class MA (from commercial to residential use), evidence would be required to evaluate the risk that the impacts could be significant enough to seriously undermine its vitality and viability. Whilst this can be demonstrated directly through the loss of turnover, jobs and attraction of uses within the core, it is important to remember the wider contribution that high streets and town centres make to local communities. Local residents depend on access to shops, services, and medical facilities, and consideration should be given to the impacts of having to travel further to access these crucial services. Use Class E was introduced to provide flexibility and reduce risk for town centre occupiers, which will be even more important as town centres emerge from lockdown restrictions. While the permitted development right will add additional risks for commercial, business and service occupiers, it may also be relevant to assess how the loss of such uses could stifle recovery from the impacts of the pandemic.

Finally, any evidence would need to demonstrate the value the core area provides to a centre. This could be through turnover modelling, footfall counts, on-street visitor surveys as well as an analysis of the wider importance of the core as social infrastructure, providing key services and employment opportunities. Equally, as recently suggested by Ministers, this could include future value where there are plans for the comprehensive mixed-use development of an area that could be prejudiced by the unplanned introduction of new housing. Councils will need to demonstrate that an area has functioned as an essential core of town centre uses, contributing to the overall vitality and viability of centre for an extended period of time, in order to suitably demonstrate the value that an area provides and justify protection.

The Government is clearly intent on preventing Local Authorities from using Article 4 directions to introduce blanket exemptions from their commercial (Class E) to residential (Class C3) permitted development rights. Councils will therefore need to build up robust sources of data and evidence to support targeted Article 4 directions, where they can make a real difference protecting the most vulnerable area of our town centres.

A version of this article appeared in The Planner.

Authored by James Singer, Associate Director.