The UK Government has announced proposals to protect pubs listed as assets of community value from conversion or demolition without an application for planning permission.
The Government has noted that since 2012 over 600 pubs have been nominated as Assets of Community Value (ACVs), and one third of all listed assets have been pubs.
It has now announced extra measures to protect valued public houses being those which are listed as ACVs (Community Pubs). This will be introduced through a statutory instrument to be laid before Parliament.
The secondary legislation will remove permitted development rights for Community Pubs (i.e. pubs listed as ACVs). This would mean that any change of use or demolition of a Community Pub will require planning permission when the proposed measures are implemented.
Current permitted development rights
Existing permitted development rights, allow for a change of use without a full application for planning permission to A1 (shops), A3 (restaurants and cafes), A2 (financial and professional services) from a use in class A4 (drinking establishments e.g. pubs).
A range of time-limited permitted development rights were brought into force in May 2013. This included the right for any buildings with A4 use to temporarily change the use, subject to certain conditions, for a temporary period of up two years to the following 'flexible uses' - A1, A3, A2 and B1.
The two year period begins on the date the building begins to be used for one of the 'flexible uses'. The Council must receive prior notification of the proposed new use, and the area that can be changed must be less than 150m2. Note that the new temporary use may only be for a single continuous period of up to 2 years. Once the temporary 2 year period ends, an application for a planning permission to permanently change the use of the premises is required, or a return to the last lawful use.
The permitted development rights have attracted controversy; in particular the sale of village pubs to be redeveloped for housing, and redevelopment of pubs by supermarkets. The Campaign for Real Ale (CAMRA) has been calling for a change in planning law to prevent closures of pubs since July 2009, and in November 2012 called for the Government to change planning laws to restrict permitted development from change of use from a pub to a supermarket.
CAMRA referred to research showing that since January 2010 over 200 pubs across Britain have been converted into supermarket convenience stores.
Assets of Community Value and the Right to Bid to acquire an ACV
The Localism Act 2011 (the Act) introduced a number of community rights and powers into the planning landscape with the objective of giving local communities greater control over development in their area.
The Act's provisions in Part 5 Chapter 3 governing the listing of ACVs were commenced in England at the same time as the ACV regulations made under those provisions came into force, both on 21 September 2012. This was followed shortly after by a non-statutory advice note from DCLG: Community right to bid non statutory advice note for local authorities. This provides an overview of the legislative provisions and the ACV regulations.
In summary, the provisions give local groups a right to nominate a building or other land for listing by the local authority as an ACV. It can be listed if a principal (“non-ancillary”) use of the asset furthers (or has recently furthered), their community’s social well-being or social interests (which include cultural, sporting or recreational interests), and is likely to do so in the future. Once an asset has been listed nothing further will happen unless and until the owner decides to dispose of it, either through a freehold sale, or the grant or assignment of a qualifying lease (i.e. a lease granted for at least twenty-five years).
Then, unless an exemption applies, the owner will only be able to dispose of the asset after a specified time window ('moratorium period') has expired. In that moratorium period a qualifying community group will have an opportunity to bid to acquire the ACV subject to the process set out in the ACV regulations. Please see our briefing for more details on the listing process and on the right to bid to acquire a listed ACV.
For an asset that is listed as an ACV the Act therefore provides an additional layer of protection to a building whether or not it is also listed by English Heritage. Where land is included in a local authority’s list of ACVs, it remains on that list for five years, whether the community make a bid for it or not. The fact that it is on the list may be a ‘material consideration’ for planning purposes, and to be taken into account by the council in deciding a planning application (including for change of use), or on an appeal against a planning decision.
Proposals for additional protection by removing permitted development rights
The Department for Communities and Local Government by Written Statement (HCWS221, 26 January 2015), announced that it will bring forward secondary legislation 'at the earliest opportunity' so that in England registration of a pub as an ACV will result in removal of permitted development rights to change its use, and rights to demolish it.
The Government considers that this change strikes the right balance between protecting valued Community Pubs and allowing empty pubs to be re-developed without excessive red-tape. The proposals will result in the need for a planning application to be made, on which members of the public will be consulted, for any change of use or demolition of a pub listed as an ACV. The Government's announcement also confirms that Local Planning Authorities may take the listing into account as a material consideration when determining any planning application.
The Government's announcement also reiterates the "strong support for pubs in the National Planning Policy Framework". The National Planning Policy Framework (NPPF) states that LPAs and decisions should guard against the unnecessary loss of valued community assets (paragraph 70).
The NPPF also directs that planning policies and decisions should plan positively for the provision and use of shared space and community facilities (e.g. public houses) and other local services to enhance the sustainability of communities and residential environments. The ACV regulations and the Community Right to Bid were both key parts of the DCLG policy set out in 2012 to empower local communities by giving them new rights also including Neighbourhood Planning.
Shadow planning minister Roberta Blackman-Woods was reported as confirming that the party was looking at making Neighbourhood Planning universal and compulsory last year. Writing in a booklet by think-tank the Smith Institute published only last week, she provides more detail on future Labour policies on neighbourhood planning. She writes:
"We want to extend and streamline neighbourhood planning, improve community engagement, make proper use of land and its value and bring together thinking on town, country and regenerative planning."
"Neighbourhood planning must be incorporated into the plan making process at an earlier stage. Currently this community engagement is seen as a separate process. The result has been local and neighbourhood plans at odds with one another and communities left disheartened when their input is disregarded in favour of the legally superior local plan."
"Developing a neighbourhood plan led system will, of course, not be easy. It will require new means of encouraging community buy in, supporting community groups and re-establishing the governance structures that link communities, local government and central government."
'Labour and localism: perspectives on a new English deal',
January 2015, Smith Institute
Timing for implementation of the changes?
In the debate on the Infrastructure Bill which took place on 26 January 2015 the Government confirmed that it hoped that the necessary statutory instrument to implement the changes "will be published and laid before Parliament in the next few weeks."
However, given the cross party support for neighbourhood planning generally there is scope for these, or other similar community measures to be taken forward in future.
A Commons Select Committee on Community Rights took evidence on the operation of ‘community rights’ over the course of 2014. The Committee remit was to investigate the progress made in allowing communities to use the powers, particularly under the Act and subsidiary regulations, and to examine whether the legislation was operating effectively. The Committee has announced that it would be publishing its report on 3 February 2015. The announcement coincided with the Government's Written Statement announcing the added protection to be given to Community Pubs.
Publication of the Committee report may see further recommendations on the operation of the community rights including the Right to Bid. Certainly, the Government's Written Statement already signalled an intention to undertake a post-implementation review of the Right to Bid during 2015, with an intention of streamlining and simplifying this process. So the likelihood of further changes in the future is high.