Technical Consultation on Extending Permitted Development Rights for Homeowners and Businesses (DCLG)
Permitted Development Rights - Consultation
Department for Communities and Local Government
Zone 1/J3 Eland House
21st December 2012
Dear Ms Marks,
Technical Consultation on Extending Permitted Development Rights for Homeowners and Businesses
Thank you for the opportunity to comment upon this technical consultation. I am responding of behalf of the Association of Local Government Archaeological Officers: England.
The Association of Local Government Archaeological Officers (ALGAO) is the national body representing local government archaeology services at County, District, Metropolitan, Unitary and National Park authority level. These provide advice to nearly all the District, Unitary and other local government bodies in the country.
ALGAO: England co-ordinates the views of its member authorities (106 in total) and presents them to government and to other national organisations. It also acts as an advisor to the Local Government Association (LGA) on archaeological matters. The range of interests of our members embraces all aspects of the historic environment, including archaeology, buildings and the historic landscape, and our stated aims are to:
- Provide a strong voice for local authority historic environment services and promote these to strengthen and develop their role within local government in delivering local and national government policy
- Ensure local government historic environment services are included within policy (national and local) for culture and education
- Ensure that policy aims to improve the sustainable management of the historic environment
- Promote the development of high standards in the historic environment profession
General Comment: increased risk to some undesignated archaeological areas
ALGAO supports Government’s continuing desire to produce a simplified, fit for purpose planning system. Indeed, an effective planning system is one where the management and protection of the historic environment is part of the solution and not part of the problem, contributing to, rather than compromising, sustainable development. This is particularly important for that part of the historic environment which is undesignated and whose only protection comes from the planning regime.
However, there is one serious concern that needs to be addressed in relation to the extension of permitted development rights for operational development involving ground disturbance. This relates to areas where there is known high archaeological interest below ground and upon which there is usually residential housing, mostly dating to the 19th and 20th centuries, but occasionally of earlier periods. For most such sites/areas (but not all), the archaeological interest relates to urban or sub-urban settlements and cemeteries dating to the Roman period (cAD40 to AD450). The sites/areas are characterised by the discovery of archaeological remains (including human remains) before or during small-scale, notifiable developments, mostly house extensions. A significant proportion of sites/areas within this category are immediately adjacent to the boundaries of Scheduled Monuments. In almost all instances where archaeological potential is identified within such sites/areas by the local planning authority, planning permission is granted with a condition to require appropriate archaeological investigation in accordance with the National Planning Policy Framework and local planning policy.
This is thus an issue which will only arise in certain areas and, in almost all cases, would not prevent development. However, these areas are not currently protected by formal historic environment designation (Conservation Area, Scheduled Monument, Listed Building, Registered Park or Garden) and significant damage would be likely to occur if the ability, where appropriate, timeously to investigate, record and increase our understanding of the past through the provisions of the current planning system (NPPF) were lost or compromised. Furthermore, the provision of an efficient mechanism to manage this impact would in many instances expedite the development process where remains (including human remains) would otherwise be found in the course of works.
Current permitted development rights already cause significant difficulties for ALGAO member local authorities both from the damage to archaeological remains that occurs without proper record, and also from the resources expended by the local authority to deal with unexpected archaeological discoveries revealed during development. A significant extension of those rights would increase these difficulties – and the threat to the historic environment - to an unacceptable degree given the larger areas and volumes of archaeological deposits at risk and the consequent, potentially greater and irretrievable loss of understanding of their significance. This difficulty will also be increased by the ongoing reductions in resources and staff that ALGAO member local authorities are facing.
Regulatory mechanisms already exist to address these concerns though the current planning system. They provide feasible and less onerous alternatives (to householders, developers and local authorities) to the large-scale national designation (e.g. Scheduling) of assets which might otherwise be required to manage and protect these areas.
Other potential solutions, in addition to Scheduling, should the proposed changes be implemented, include:
Using ‘sites of archaeological interest’ as defined in the article 1(2) of the Town and Country Planning (General Permitted Development) Order 1995 (GPDO) as the basis (possibly subject to additional criteria) for excluding land from the benefit of the permitted development rights in question or requiring prior approval for their exercise. This is an approach increasingly adopted to the protection of archaeological interests in the permitted development regime in Scotland.
Consider designation of the most important areas or the areas most at risk from the changes to the permitted development rights as new ‘Areas of Archaeological Importance’ (AAIs) as defined in Part II, section 33 of the Ancient Monuments and Archaeological Areas Act 1979. The designation would be to allow investigation, recording and enhancement of public knowledge.
Part II of the 1979 Act was introduced to allow archaeological investigation for areas such as those which have been highlighted above by this response. Currently, AAIs have only been designated by the Secretary of State in five historic town centres (York, Chester, Exeter, Hereford and Canterbury) and the success of planning guidance and policy – especially since 1990 - has largely removed the need for AAI or other archaeological designation in urban areas. However, by removing the sole means allowing for the investigation of important archaeological remains in the areas identified above in this response, the proposed extension of permitted development is likely to reintroduce AAI designation as a potential means of ensuring at least a minimal level of archaeological investigation in these areas. The 1979 Act gives local authorities the power to designate AAIs and further areas could theoretically be designated where there is a lack of protection as outlined above. However, we fully acknowledge that without new guidance to successfully implement Part II of the Act and also assurances that further AAIs could be designated without additional resource implications to local authorities, any solution involving AAIs would be theoretical rather than real.
Using Article 4 directions to exclude specific areas from the benefit of permitted development rights on grounds of archaeological impact. However, local authorities are often reluctant to issue Article 4 directions viewing them as costly, cumbersome and time-consuming. There have been very few, if any, Article 4 directions on archaeological grounds and we would be concerned if this were to be adopted as the answer to this problem without any steps to ensure that Article 4 directions would actually be made in appropriate cases. If the proposed changes are implemented, and none of the other above solutions are deemed to be suitable, we would however be keen to work with English Heritage and local authorities to identify the archaeological areas most at risk from the changes and trial the use of Article 4 directions, including the resource implications for the local authorities and the views of residents/occupants.
Question 1: Do you agree that in non-protected areas the maximum depth for single-storey rear extensions should be increased to 8m for detached houses, and 6m for any other type of house?
1.1 Only if adequate and effective safeguards are introduced to manage archaeological remains in the circumstances outlined above. Problems are most commonly encountered in the course of building or extending dwelling houses, although similar risks are inherent in the extension of other permitted development rights to erect or extend buildings (for instance, in relation to shops, offices and industrial premises).
1.2 We welcome the clear indication that such permitted development rights will not apply in ‘protected areas’. This is important for the protection of the wider historic environment but, for the reasons explained above, this is not sufficient in relation to undesignated (and often unidentified) buried archaeological remains in areas of high archaeological interest. Nor is it sufficient, without more, to say that such concerns can be dealt with by the use of Article 4 directions. In practice, those powers are not consistently used and, in the context of archaeological concerns, are rarely, if ever, used. Indeed, paragraph 16 of the consultation document reminds us that the NPPF discourages the wider use of Article 4 directions which ‘should be limited to situations where this is necessary to protect local amenity or the wellbeing of the area’ (NPPF, paragraph 200). However, as is mentioned above, we would welcome the opportunity to assist in the trialling of the use of Article 4 directions in those areas deemed to be most at risk from the changes and where the criteria of NPPF paragraph 200 apply.
1.3 One further area which is not specifically addressed in the consultation is the impact of development on the setting of heritage assets (including listed buildings and scheduled monuments).
Question 2: Are there any changes which should be made to householder permitted development rights to make it easier to convert garages for the use of family members?
2.1 No comment, save that any changes should contain safeguards to protect the historic environment. Changes of use do not directly impact upon buried remains but, nonetheless, have implications for the wider historic environment. Any new rights should be excluded or restricted in the case of listed buildings and article 1(5) land (to reflect the current exclusions and restrictions in relation to development within the curtilage of a dwellinghouse pursuant to Part 1 of Schedule 2 to the GPDO).
Question 3: Do you agree that in non-protected areas, shops and professional/financial services establishments should be able to extend their premises by up to 100m2, provided that this does not increase the gross floor space of the original building by more than 50%?
3.1 Only if adequate and effective safeguards are introduced to manage archaeological remains in the circumstances outlined under General Comments. See the response under question 1.
Question 4: Do you agree that in non-protected areas, shops and professional/financial services establishments should be able to build up to the boundary of the premises, except where the boundary is with a residential property, where a 2m gap should be left?
4.1 See the response under question 3.
Question 5: Do you agree that in non-protected areas, offices should be able to extend their premises by up to 100m2, provided that this does not increase the gross floor space of the original building by more than 50%?
5.1 See the response under question 1.
Question 6: Do you agree that in non-protected areas, new industrial buildings of up to 200m2 should be permitted within the curtilage of existing industrial buildings and warehouses, provided that this does not increase the gross floor space of the original building by more than 50%?
6.1 See the response under question 1. New build of up to 200m2 in areas of high archaeological interest potentially represents a very large increase in the area and volume of archaeological deposits at risk.
Question 7: Do you agree these permitted development rights should be in place for a period of three years?
7.1 We do not object to this limitation. However, this will do nothing to address the concerns outlined above. Archaeological remains are a finite and irreplaceable resource and time-limited operational development carries the same risk of irretrievable loss of understanding of their significance as any other development.
Question 8: Do you agree that there should be a requirement to complete the development by the end of the three-year period, and notify the local planning authority on completion?
8.1 See the response under question 7.
Question 9: Do you agree that article 1(5) land and Sites of Special Scientific Interest should be excluded from the changes to permitted development rights for homeowners, offices, shops, professional/financial services establishments and industrial premises?
9.1 Yes. The historic environment is vulnerable to small-scale development and the gradual erosion of heritage assets through the cumulative effects of new development. It would be helpful to add the sites designated as a Scheduled Monument to the definition of article 1(5) land or otherwise exclude it from the relevant changes to permitted development rights.
Question 10: Do you agree that the prior approval requirement for the installation, alteration or replacement of any fixed electronic communications equipment should be removed in relation to article 1(5) land for a period of five years?
10.1 No, we are mindful of the Government’s undertaking and EU targets in respect of broadband coverage, but the system of prior approval is in place for good reason, i.e. to ensure, amongst other things, that the historic environment in designated areas is not harmed. The development in question, although generally minor in scale, has potential to harm the historic environment, particularly in relation to the character and appearance of conservation areas. We would not agree to the removal of the prior approval requirement in relation to article 1(5) land in the absence of some means to ensure that there is proper consideration of the issues and, where necessary, appropriate negotiation (for instance, with local authority conservation officers).
10.2 There may be scope for streamlining the prior approval system, for instance, requiring the local authority (upon receipt from the operator or contractor of a list of sites where equipment needs to be placed) to identify those sites of greatest environmental sensitivity on which negotiation can take place, with installations on the remaining sites proceeding in accordance with good practice principles of design and siting.
10.3 Notwithstanding the above concerns we would support the production of good practice guidance in this regard (which should include consideration of the historic environment) as envisaged at paragraph 36 of the consultation document.
Do you have any comments on the assumptions and analysis set out in the consultation stage Impact Assessment? (See Annex 1)
As explained above, we do not consider that the limitations and conditions envisaged in relation to the extended rights are sufficient to prevent an unacceptable risk to the historic environment and our understanding of its significance. Nor, without more, will Article 4 directions in practice provide an adequate safeguard (see the Impact Assessment at page 30).
We would be happy further to discuss these issues with Government with a view to facilitating sustainable development which delivers public benefit both economically and culturally.
In the meantime, if there is anything further that I can do to assist please do not hesitate to contact me.