Amendment 247

Levelling-up and Regeneration Bill - Committee (10th Day) – in the House of Lords at 4:30 pm on 20 April 2023.

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Lord Lexden:

Moved by Lord Lexden

247: After Clause 98, insert the following new Clause—“Permitted development: replacement windows in conservation areasIn the Town and Country Planning (General Permitted Development) (England) Order 2015 (S.I. 2015/596), Schedule 2, Part 1, Class A.3(a), after “materials” insert “(and, in respect of a replacement window in a conservation area, style and colour)”.”

Photo of Lord Lexden Lord Lexden Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I move Amendment 247, brought forward by my noble friend Lord Northbrook, who sadly cannot be here today. I will also speak to Amendments 247A and 285 in this group and in his name. I speak on his behalf.

The most important amendment in this group is Amendment 247A, and I shall deal with it first. It provides a solution to a significant problem. Local planning authorities—LPAs—in deciding on an application for development in a conservation area are currently required under Section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 to determine whether the proposed development would preserve or enhance

“the character or appearance of that area”.

LPAs have a wide degree of discretion in deciding whether this statutory test is passed. In a number of conservation areas—and I am thinking particularly of the Royal Borough of Kensington and Chelsea—planning officers, for understandable reasons, do not normally live in or near the relevant conservation area, but they routinely substitute their own opinions for the opinions of those who do, frequently in disregard of the relevant conservation area appraisal document and advice from important third parties such as Historic England. This problem is particularly acute in the royal borough, where harmful decisions have been made in the past and then used as a precedent to justify approving further harm of a similar nature.

This line of reasoning has been criticised frequently by the Planning Inspectorate and runs contrary to the advice of Historic England in its Historic Environment Good Practice Advice in Planning: 2 called Managing Significance in Decision-Taking in the Historic Environment, which was published in March 2015. Paragraph 28 of this document states:

“The cumulative impact of incremental small-scale changes may have as great an effect on the significance of a heritage asset as a larger scale change. Where the significance of a heritage asset”— and this, of course, includes the entirety of the conservation area— has been compromised in the past by unsympathetic development to the asset itself or its setting, consideration still needs to be given to whether additional change will further detract from, or can enhance, the significance of the asset”.

Regrettably, such consideration is all too often not given by planning officers in their decision reports in the exercise of delegated powers or in their advisory reports to planning committees. Surely the people best qualified to assess whether a proposed development will preserve or enhance the character or appearance of a conservation area are those who live in it. Under this amendment, LPAs would be required to pay special attention to the views, if any, expressed by those who live in the area.

The Government might perhaps take the view that LPAs are already obliged to consider all comments made during the course of a consultation on a planning application, rendering the amendment unnecessary. However, the obligation in this amendment to pay special attention is stronger than the obligation merely to have regard to comments made and the amendment is specifically tied to comments made by those who live in the area. If planning officers wish to substitute their own opinions on what is good for a conservation area, they should explain clearly and convincingly why they seek to do so and why the views of local residents should not be respected. This amendment would introduce the necessary arrangements.

I turn now to Amendment 247, which concerns permitted development rights to install replacement windows in conservation areas. Currently, permitted development rights to improve or alter a dwelling house are subject to a condition that

“the materials used in any exterior work must be of a similar appearance to those used in the construction of the exterior of the existing dwellinghouse”.

The amendment would require that replacement windows in a conservation area must be of similar style and colour to the windows they are replacing, not just that the materials be of similar appearance, if the right to install the new windows is to be permitted development. This would not require replacement windows to be of similar style and colour, but simply bring them within the scope of planning control if they are not.

As we all know, many conservation areas in England have attractive streets of 19th-century terraced houses, in which the windows fronting the street are white-painted wooden sliding sash windows with traditional Georgian-style glazing bars enclosing relatively small panes of glass. Many LPAs routinely include as a standard condition of planning approvals in conservation areas that any replacement of sliding sash windows fronting the street should be like-for-like sliding sash windows, but this can be challenged successfully. For example, there was a remarkable case in the Royal Borough of Kensington and Chelsea, where the owner of a house installed an ugly, non-sliding sash window in breach of a planning condition. A complaint was made to the council and a request was made to planning enforcement to have the window removed. One of the local ward councillors, who happened also to be the cabinet member for planning at the time, said that it was clearly inappropriate and would need to be replaced as soon as possible. The enforcement officer agreed with the complaint, and an enforcement notice was duly served. The owner then told the council that his new window was in fact a permitted development; the result was that the enforcement notice was cancelled, and the enforcement officer accepted that the council had no control over its style. The window remains. I note, in passing, that it was very surprising that neither the owner, his planning consultants, the cabinet member for planning nor the enforcement officer were aware, at the time of the application, that the installation of the replacement window was a permitted development. That was a reflection of the confused state of the general permitted development order at the time, on which I shall say a few words when I turn to Amendment 285.

Is it not odd that the current applicable condition for the permitted development right to install replacement windows is merely that similar material must be used? That is to say that, if the window being replaced is made of wood and glass, the replacement window should also be made of wood and glass. The purpose of permitted development rights is to facilitate obvious improvements without the need for planning permission, but how can this entitlement to install ugly new windows be considered an improvement?

I hope that the Government will be inclined to consider the amendment sympathetically. If not, perhaps my noble friend will explain the logic of requiring similar materials but not similar style and colour. Replacement windows fronting attractive streets in conservation areas should be like-for-like; if not, they should need planning permission, and the GPDO should be amended to reflect that.

Finally, I turn briefly to Amendment 285. Schedule 2 to the general permitted development order sets out permitted development rights—namely, rights to develop for which planning permission is not required. It gets amended several times a year. Unfortunately, on the legislation.gov.uk website, there is often no up-to-date, consolidated text, so anyone wishing to see what rights exist, or which existed at the time of a specific application, has to spend many hours on the internet searching for all the amendments made to it since it came into force on 15 April 2015, and this research needs to be conducted separately on each occasion. I have mentioned already one example of where failure to provide a consolidated text confused even experts and professionals in the planning world. Most other legislation is available to read on the internet in up-to-date, consolidated form, so why not the GPDO?

I am glad to see that today, some seven or eight years after the 2015 GPDO came into force, an up-to-date consolidated text is now, at long last, available on the official website. As of today, the text is up to date, but this is a rare occurrence. All too often the text says that there are outstanding changes not yet made by the legislation.gov.uk editorial team. Why are changes not made promptly?

All citizens surely have a right to see legislation clearly in its current state. This amendment would place a statutory duty on the Secretary of State to ensure that an up-to-date consolidated text is made available on the official website at all times. Would that not be appropriate and right? I beg to move.

Photo of Baroness Pinnock Baroness Pinnock Liberal Democrat Lords Spokesperson (Levelling Up, Communities and Local Government) 4:45, 20 April 2023

My Lords, I have a lot of sympathy with the views expressed by the noble Lord, Lord Lexden, about conservation areas and permitted development rights. For residents who are fortunate enough to live in a conservation area, it is both a privilege and a responsibility. When the noble Lord was trying balance homeowners wanting to make appropriate changes—and sometimes inappropriate changes—and local planning conservation officers seeming to rule the roost over what is and is not appropriate, I asked myself, “Where were the local councillors in this mix?”. Where I am a councillor, I have conservation areas in my ward, and where there is a disagreement about what is appropriate, I ask for it to go to the planning committee. Then, it has a public airing, which is precisely what should happen. The planning conservation officer states one view and residents another, and a decision is made. One of the great purposes of planning committees is to air views, balance them out and come to a conclusion.

I also have concerns about always expecting to maintain the standards of a building that was created 100 or 200 years ago in wood and glass, when the rest of us are trying very hard to increase insulation, particularly of windows and doors. A couple of years ago, I visited a window manufacturer not too far from here which makes heritage windows from plastic. I could not tell the difference, even though I have an interest in conservation and heritage. In our regulations, we need to enable that to happen so that buildings remain appropriate for the time, while conserving the best features and personality of a townscape, which I know the noble Lord, Lord Lexden, wants to retain for people to love and enjoy in the future.

Photo of Baroness Hayman of Ullock Baroness Hayman of Ullock Opposition Whip (Lords), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Levelling Up, Housing, Communities and Local Government)

My Lords, I thank the noble Lord, Lord Lexden, for introducing the amendments in the name of the noble Lord, Lord Northbrook.

I just make a very brief comment about the issue of replacement windows. My concern comes from a property that I know; it is in a conservation area and the windows are basically falling to pieces. It is owned by a young couple who applied for planning permission to replace the windows with something very similar, but not like for like—they could not afford like for like. Of course, they were turned down because it did not fit under the planning regulations as they are currently set up. A couple of years on, the outcome is that the windows are falling to pieces and nothing is happening. The couple are stuck, and the windows look dreadful. That is not their fault; they cannot afford to do what the planning inspectors tell them that they have to do.

I am very pleased that these amendments have been brought forward, because they enable us to talk about these anomalies in the way that the planning legislation is currently set up. It tries to protect the look of a place, but if that means that something does not happen because the owners of the property do not have the resources or finances to be able to do it, the property starts to decline. We have the example of windows, but it can be so much more. These are quite specific planning issues, but this is something that needs to be looked at.

Photo of Baroness Bloomfield of Hinton Waldrist Baroness Bloomfield of Hinton Waldrist Baroness in Waiting (HM Household) (Whip)

My Lords, I would like to thank my noble friend Lord Northbrook for tabling these amendments and my noble friend Lord Lexden for so ably introducing them.

Amendment 247 would require amendments to permitted development rights. Permitted development rights are a national grant of planning permission which allow certain building works and changes of use to take place. Rights in relation to England are set out in the Town and Country Planning (General Permitted Development) (England) Order 2015 (2015/596). As we heard in the debate immediately preceding this group, heritage assets, including conservation areas, are an irreplaceable resource and it is important that we ensure that they are protected. Local authorities are required by law, in carrying out their functions, to pay special attention to the desirability of preserving or enhancing the character or appearance of conservation areas.

We are committed to quality and design regardless of whether homes are delivered through a permitted development right or a planning application. We intend to consult on introducing secondary legislation so that existing permitted development rights with design or external appearance prior approvals will take into account design codes where they are in place locally. Local authorities can remove specific permitted development rights to protect local amenity or the well-being of the area by making an Article 4 direction.

As committed to in the Government’s British Energy Security Strategy, we are currently undertaking a review of the practical planning barriers that households can face when installing energy-efficiency measures. This will include replacement windows with improved glazing, including in conservation areas. While this review is under way, it would be premature to accept this amendment, as it would curtail the scope of any legislative recommendations that the review might set out in due course.

To go further on that, because I know that this area was of concern to both noble Baronesses, Lady Hayman and Lady Pinnock, the Government are fully committed to encouraging home owners to incorporate energy-efficiency measures in their properties. As part of this, we recognise the need to ensure that more historic buildings have the right energy-efficiency measures to support our zero-carbon objectives. The review of heritage and energy efficiency committed to in the British Energy Security Strategy and currently under way will enable the Government to respond to the issue in an informed and joined-up way. In addition, powers to amend permitted development rights already exist in primary legislation. For these reasons, the Government are unable to support this amendment; however, we will continue to keep permitted development rights under review.

I turn to Amendment 247A, which proposes a new clause amending Section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 to require, in exercise of planning functions, special attention to be paid to the views of residents in conservation areas. I understand my noble friend’s concerns. However, the purpose of Section 72 is to ensure that local planning authorities are required, when making planning decisions, to pay special attention to the desirability of preserving or enhancing the character or appearance of conservation areas. It is an important, long-standing duty that protects conservation areas.

Engagement with the sector during policy development for the Bill acknowledged that the framework for protecting the historic environment works well, although there are opportunities, we acknowledge, for targeted improvements. The package of heritage reforms focuses on maintaining the strong protections for the historic environment within the new planning system and, where possible, building on the existing framework. The proposed reforms will build on the existing protections without introducing any additional restrictions on development. It would be inappropriate to extend it so that local planning authorities have to pay special attention to the views of those living in conservation areas too. It would mean the views of conservation area residents would have greater weight than those living outside the area, which we think would be unfair.

In addition, in determining planning applications, decision-makers are already required to consult with local residents, and their views are taken into account. This will not change in our reformed system, and we are also taking powers in the Bill to improve the consultation process, making it more accessible by complementing more traditional forms of engagement with digital tools. It is not considered necessary, therefore, to duplicate these arrangements by extending the Section 72 special attention duty.

Turning to Amendment 285, we agree that it is important that the most up-to-date consolidated version of the general permitted development order, which sets out all the national permitted development rights, is publicly available online. Amendments to the order are often made, as we introduce new permitted development rights or make changes to the existing rights, through amending orders. The latest consolidated version of the general permitted development order is already available on the Government’s legislation website, alongside the original version.

I hope that I have provided the noble Lord with adequate reassurances, but we are unable to support these amendments at this time.

Photo of Lord Lexden Lord Lexden Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I thank the two noble Baronesses on the Opposition Front Benches for their valuable points, particularly relating to replacement windows. I am grateful, above all, to my noble friend on the Government Front Bench for her full and carefully considered comments. My noble friend Lord Northbrook and those who are associated with him in giving further consideration to these matters will look very carefully at what my noble friend has said, and then they will be able to decide what further action they may wish to take. On that basis, I beg leave to withdraw the amendment.

Amendment 247 withdrawn.

Amendments 247A and 247B not moved.

Clause 99: Street votes