by Stuart Robinson and Matthew Purser
The property industry loves buzz words, and there can be no doubt that this year’s buzz word has been “B1”. With its introduction in June last year, as part of the changes to the Use Classes Order, that expression has now entered the vocabulary of all those involved in property development.
With the Use Classes Order now just over a year old, it is timely to consider just how the changes have affected commercial property development. The most important factor is how these changes have affected planning decisions. In this article the attitudes of planning authorities and the Department of the Environment are considered. The subtitle for this article was once considered to be “B1 or not to B1?” but we thought better! However, that does express some of the dilemma that practitioners are finding.
Context of change
Before considering the effects, the changes in the use classes must be put into the context of other important government planning modifications. These comprise three recent government circulars on:
(1) The awarding of costs at planning appeals.
(2) Conditions on planning permissions.
(3) The circular that accompanied the revised Use Classes Order in June last year.
First, the circular accompanying the new Use Classes Order clearly advises local authorities to consider planning applications with the spirit of the changes in mind. This implies that the Secretary of State will not look favourably upon tampering with the planning policy and consents in order to achieve aims which are contrary to those of the Government.
Second, the government circular on conditions attached to a planning consent further reduces the scope for local authorities to use clauses in planning permissions as a way of reducing the impact of changes in planning regulations such as the Use Classes Order.
Finally, there is the recent advice on costs awarded after planning inquiries against parties who have acted unreasonably. Recently, we have seen a marked increase in the awarding of costs against local authorities who sought to delay and frustrate planning permission contrary to the principles being advocated by the DOE.
These three circulars have made a significant change in reducing the local authorities’ ability to protract or forestall development. These have gone a long way to meeting this Government’s philosophy of an “enterprise economy” within the property sector.
B1 development opportunities
It is not necessary to detail here the provisions of the Use Classes Order generally — you would not expect us to put planning consultants out of a job! The opportunity for developers and landowners which has arisen from the new Business Class which encompasses the previously separate light industrial, office and studio uses, is the free interchange between these activities without the need to apply for planning permission. However, as a word of warning, current planning permissions must be examined to ensure that there are no conditions which preclude changes envisaged by the Use Classes Order — these may need to be amended.
Furthermore, outstanding permissions for light industrial still need to be implemented by light industrial occupiers, before the use of the premises can be changed to any of those within the B1 class.
The local authorities’ reactions
Since the war planning authorities have drawn clear distinctions between offices and light industrial uses in their planning policies. Increasingly, with the erosion of manufacturing industries, councils have been even more concerned to protect and encourage “blue collar” employment, and to divert office development to distinct locations. It is not surprising, therefore, that there has been a rather mixed reaction to the new policies emanating from Whitehall.
This summer the Polytechnic of Central London and Hiller Parker Planning undertook a survey of local planning authorities to assess the extent to which B1 has been accepted. The area covered stretched from inner London along the Thames Valley — the area where there is the greatest commercial pressure for office development. Altogether, 25 authorities were questioned on a range of issues. The variety of responses received was surprising and confirmed that developers cannot yet expect to have a smooth ride through the planning process in a number of authorities.
Survey findings
One of the more interesting findings of this survey concerned non-compliance with the new regulations, which was no less prevalent among the staunch Tory authorities in the Thames Valley than their left-wing counterparts in inner London.
One in five of the authorities questioned had produced policies specifically to take account of the new regulations. The remainder have not amended their planning policies, but are assessing the situation before undertaking a review.
What was perhaps more unexpected was that half of the interim policies adopted actually tried to militate against the operation of the B1 class, as opposed to revising existing plans to take the new order on board.
There is some conflict in the Thames Valley arising from hi-tech buildings allowed under the old Use Classes Order. Now the market is putting pressure on these old consents, moving towards a more flexible building strategy. Different approaches to the B1 class by authorities in this area, however, have given rise to uncertainty and confusion.
Perhaps the most extreme example is the attitude adopted by Spelthorne Borough Council, whose area covers the M3/M25 corridors. The B1 Use Class carries an amenity test derived from the old Use Classes Order, in a slightly modified form. The wording of the test is not, perhaps, as clear as it should be.
Essentially the test requires the B1 activities to be able to be “carried out in any residential area, without detriment to the amenity of that area, by reason of noise, … smell, fumes, smoke … etc”. Spelthorne Borough Council have interpreted this as meaning that all B1 proposals in their district should be tested against the most sensitive residential area.
Hillier Parker Planning currently have an appeal outstanding in Spelthorne on this matter, and it is clear that the Secretary of State, who is making the decision, is considering his response very carefully. Unusually for an appeal carried out through the written representation procedure, we are still awaiting a decision nine months after the submission of the appeal. We believe this delay indicates that the Secretary of State is conscious that a High Court action may arise on this or some other case.
A different approach adopted by many authorities along the Thames Valley, such as Slough, Wokingham, Windsor and Maidenhead, is to maintain that the car-parking demands of office accommodation preclude a change from light industrial. Accordingly, conditions are imposed which restrict B1 proposals if the site is not able to accommodate office car-parking standards.
In some authority areas B1 applications are still considered against the old office policies, whereas a reference to industrial uses will mean that the proposal will be treated as being under the B2 or general industrial use class. Reading and Guildford appear to approach this issue by distinguishing between offices and light industrial to protect the latter. Surrey are worried that 3.5m sq ft of industrial space is under threat. Opposition is not prevalent throughout the Thames Valley area, however. Some authorities have accepted the situation and, while not welcoming B1 proposals, they have allowed unfettered permissions. Examples include Runnymede and Bracknell.
London boroughs
Most planning authorities in London are keen to preserve what remains of existing light industrial estates. Once more, a variety of responses is evident, reflecting the range of resistance to B1 proposals.
Some of the outer-London boroughs are applying stringent criteria against B1 proposals. Hounslow, for instance, which faces considerable pressure from Heathrow, also adopts the use of restrictive planning conditions where light-industrial premises do not meet certain standards.
In inner London, as one might expect, the attitude is even harder. Many of these authorities continue to impose conditions precluding changes of use within B1. Hammersmith and Fulham have reclassified industrial estates within the borough as either general industrial or suitable for business use to protect blue-collar industries.
Other boroughs apply strict design criteria for B1 development proposals, where applicants need to demonstrate that both office and light industrial uses can be accommodated satisfactorily. This is exemplified by Lambeth, Southwark and, to a lesser extent, Westminster.
Appeal cases
The approach of the Secretary of State and his inspectors on appeals is far more clear cut: decisions show a strong commitment to maintain the approach set out in government circulars and advice.
A general conclusion to be drawn from the appeal decisions is that there will be a restriction on the scope of B1 only if there are special circumstances relating to the site. In urban areas these will normally relate to the amenity of neighbours or traffic safety. The one appeal out of some 20 cases which was dismissed has been because of design grounds.
More to come?
The new General Development Order has recently been issued and comes into effect on December 5.
This new order permits further interchange between different use classes.
The most significant changes now allow premises in the B2 use class (general industrial) to change to B1 without restriction. On the High Street, property under the A3 category (catering) can now change to A2 (professional offices, banks and building societies) without the need for planning permission. Premises which have a window display under the A2 category can also change to A1 (retail) without planning permission. The previous GDO, of course, allowed changes from A3 to A1.
These changes will have the effect of freeing restrictions in the High Street.
In addition, more industrial space will be able to come into the light industrial market and possibly into the office sector as well. This will probably be particularly significant in the fringe areas of central London. There is already considerable pressure in this area for general office development and the new changes will allow for the central core to move outwards into these fringe areas.
Conclusions
The change in the Use Classes Order, in particular the B1 Use Class, is a change which should not be seen in isolation.
Other government modifications of the planning system are of assistance in preventing local authorities from frustrating or delaying planning applications.
Although the Use Classes Order changes appear to be clear cut there is a diverse range of attitudes in those areas where pressure for office development is greatest. Views vary and are not dependent upon the political complexion of the council.
It is likely as time goes on, however, and as the pressures of opposition and fighting appeals continue, that the degree of acceptance of B1 will broaden.
There are further changes by the Government which will broaden the flexibility of business space. The latest White Paper, Releasing Enterprise, promises more of the same.