2.5        The primary shopping area encompasses the core retail part of the town centre only. Recent evidence from both the Economic Development Strategy and Local Plan Review indicates that this area still performs relatively well (post Covid 19) in terms of footfall. It still hosts a number of major retailers, has relatively low vacancy rates when compared to other Kent centres. The mix of general retail with restaurants and cafes together with leisure and personal retail uses (e.g., hairdressers) encourage people to visit the area for different but complimentary purposes and so extend the length of their stay.

2.6        Why an article 4 direction encompassing this area? The NPPF (para 53) advises that all article 4 directions should be applied in a measured and targeted way based on robust evidence and apply to the smallest geographical area. The NPPG goes on to state that:

2.7        “The potential harm that the article 4 direction is intended to address will need to be clearly identified, and there will need to be a particularly strong justification for the withdrawal of pd rights relating to:

•      An area extending beyond the essential core of a primary shopping         area”.

2.8        So, the “core” of a primary shopping area is likely to be considered to be an acceptable area for an article 4 direction. However, what is proposed is the whole of the primary shopping area. This is still considered to be a “targeted” area with an associated “robust” evidence base in that it is the area identified in the adopted Local Plan (October 2017) and is replicated in the Regulation 19 Local Plan Review. Therefore, the area and, moreover, its evidence base have recently passed independent examination and the work for the Local Plan Review has confirmed this position to be unchanged in terms of the evidence.

2.9        Government planning guidance clearly does not allow for landowner’s permitted development rights to be removed lightly. Harm must be identified and the area tightly defined. The objective of this article 4 direction, however, would not be prevent changes to residential use per se in that this is not the identified harm rather the balance of uses and the quality of conversion to residential are important considerations.

2.10     There are many examples in urban centres whereby apartment schemes have complimented the retail offer and certain office uses (such as small rented concierge types). Indeed, for many years, local authorities have advocated policies encouraging ‘living above the shop’ partly for security reasons. There is a general need to keep a balance of uses for the viability and vitality of the town centre, and there is a need for controlling changes of use to residential to ensure a quality standard for such conversions. Key to quality is the overall design in terms of architecture, amenity space (both private and communal particularly outdoor), generous public realm creation (including tree planting), mitigation of noise and air pollution, considered car parking arrangements, a genuine mix of apartments etc.

2.11     However, there is an argument that the new permitted development rights (class MA) have adequate conditions attached to the prior approval process (see Appendix 1). These certainly give more control than hitherto. However, a fundamental concern around quality and, in particular, the ability under permitted development to provide all one bedroom apartments above that meet the minimum room size criteria and with no amenity space etc still remains. A new control introduced through the qualifying criteria for permitted development in class MA is the maximum of 1500 sq. m threshold but (following legal advice) there is the risk that this is not a ‘once and for all’ threshold and might be applicable in an incremental approach through successive applications for prior approval. This is yet to be fully tested through appeals or in the courts to provide any authority on how this should be properly interpreted, although in practice there is an argument that this is unlikely to happen. Where new additional floorspace is created then the Community Infrastructure Levy (CIL) applies but most conversions do not involve extensions in the initial phase.

2.12     Comprehensive external legal advice on this matter has been given including the new conditions imposed on the class MA prior approval process. However, the risk with relying on national conditions is that, by their very nature, they are general. For example, one of the conditions of prior approval is “transport impacts of the development, particularly to ensure safe site access” so the local planning authority has the power to assess this issue and it could be a potential reason for refusal. However, “transport impacts…” are not locally defined in this context in that there are no specific references to permitted development right class MA within local policies and, moreover, vehicle parking standards are expressed as a maximum with no parking being deemed acceptable in policy. Legal advice indicates that where article 4 directions are at their most effective is where they are backed up by specific and effective local policies. However, this will take time and will not be part of the Local Plan Review itself.

2.13     It is acknowledged that this article 4 direction would be before the nascent Town Centre Strategy (which will provide a strategic framework and ‘vision’ for local policies (not just planning)), the permitted development right (Class MA) has been in place for since 1 August this year, and the existing office to residential article 4 directions (14) cease to have effect on 1 August 2022. Therefore, there is a clear risk of properties within the primary shopping centre (particularly those vacant) becoming residential through the permitted development with little control available through the prior approval process to the planning authority with regard to quality. It is accepted that the primary shopping centre does not represent the smallest geographical area and not the “core” but it has been clearly defined in the adopted local plan and this and the associated evidence base has passed independent examination.

2.14     Article 4 directions have traditionally been applied to conservation areas and the interplay with these has been considered. However, this recommendation is solely for an article 4 direction in relation to the change of use buildings from class E  to residential rather than extending or creating new conservation areas. This is because the two evidence bases are distinctly different as is the potential harm. With conservation areas, the objective is to maintain and enhance the character and appearance so permitted development rights for modern additions such as upvc windows are taken away.

Impact of new permitted development rights on existing Article 4 Directions

2.15     The existing article 4 directions on 14 office buildings in the town centre will cease to have effect as of 1 August 2022. Having reviewed the evidence for continued article 4 protection on these 14 buildings, and in considering issues such as their geographical location, floor space and other matters it is recommended that these, in addition to an article 4 direction on the primary shopping area, as discussed above that a further 6 individual article 4 directions be made to (in effect) renew the existing directions. These would be the 6 shaded green in the table below. Those shown in red are either within the primary shopping area (and therefore would be covered by the newly proposed direction) or over 1500 sq m (or both).

2.17   The evidence base for these is still relatively up to date and as individual buildings, they represent the smallest geographical area. The previous Committee report on this matter forms Appendix 2. Therefore, the second recommendation is to renew the protection on the 6 identified buildings by serving new article 4 directions.