Amendment 247

Part of 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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Photo of Lord Lexden Lord Lexden Deputy Chairman of Committees, Deputy Speaker (Lords) 4:30, 20 April 2023

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.