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Planning for recovery: Providing certainty through flexibility

As lockdown in the UK starts to ease, and businesses consider what the future holds and how they might reopen their doors in the short term, there will be many questions and uncertainties across the development, property, and investment industries about the potential role of the planning system in helping to facilitate a national recovery. Indeed the prospect of potential planning reforms to help kick start a post-COVID-19 economic revival is already being openly touted by the Government, as reported in the press over recent weeks.

With so many variations in the likely effects of the current pandemic -on different regions, different towns and cities, and on different sectors, uses, and asset classes -critical questions will be: how exactly do we plan for the unknown? And how can we be flexible and agile enough in the meantime to allow freedom for markets to emerge from the pause caused by lockdown?

This article explores these two questions and, in particular, the existing mechanisms available within the planning system which can be used to provide certainty through flexibility.

Our experience is that the planning system already allows for flexibility in uncertain times, provided you know how to use the methods and mechanisms that are available.

What are we planning for?

Conversations about likely future trends are already taking place widely across the industry. ‘Healthy cities’ with good air quality and a network of pedestrian friendly streets and spaces will no longer just be aspirational, they will be a necessity. Town centres will need to be repurposed to incorporate a much wider variety of flexible uses and spaces. Logistics will be at the forefront of a retail economy reliant upon online sales. Office working will become more flexible and will adapt to changing occupier preferences. And high-tech and other new industries may start to replace more traditional employment uses including within city centre cores, as well as on urban edges.

Many of the trends being identified are of course not new, and have been steadily moving to the forefront of conversations for several years. Instead, the recent crisis has simply accelerated changes that were already underway, such as the greater use of technology. It is still up for debate to what extent these trends will shape and drive the economic, social and environmental priorities across the UK moving forward, and how far the development and planning world will need to adapt and respond to them. But, whatever the outcome, whether through smaller changes or wholesale planning reform, it will take time for these trends to fully manifest themselves through future policy and legislation.

This does not however mean that developers and investors must wait before taking action to respond. Now is the time to start thinking and planning for recovery, and there are multiple existing mechanisms within the planning system that provide flexibility, and that can be used in the immediate-term to enable the development industry to react to changing demands in an uncertain market. These are not just short term temporary mechanisms that have been introduced in response to COVID-19. They are existing powers that when used expertly can be applied to protect planning adaptability and agility for almost all major sites and assets to enhance value and provide resilience over the longer term.

Flexibility for now

A well-known flexible mechanism already available in the planning system is the use of permitted development rights (PDR), however this represents only a minor part of the planning regime. Other more significant measures can be applied to build flexibility into major proposals and planning permissions, achieving greater opportunity to adapt as part of longer-term recovery strategies.

Planning permissions, even when granted in full (as well as outline), can provide much more flexibility than is often perceived to be the case. It is one of the most common misconceptions that planning applications need to be prepared and determined based on an assumption that the site can and will be delivered in only one particular way: the way considered appropriate at the time of submission.

This approach is sometimes necessary (or preferred), but can lead to hindrance and delay in an ever changing market. The approach we prefer to take with clients is to invest a greater proportion of time in the early stages of projects exploring ways to incorporate flexibility into planning permissions, allowing foreseeable (and unforeseeable) changes to be accommodated without the need for further changes.

Our experience includes a wide range of different innovative and good practice methods for achieving the level of flexibility needed by our clients. This can be applied to large urban mixed use projects, for the repurposing of existing single use buildings, for the phased delivery of major business parks, residential estates, or for cases where the ultimate mix of uses, scale of buildings, layout of development, and delivery of supporting infrastructure is simply not known for certain at the stage of permission. 

Maximising value through flexibility

We know that many land and asset owners will already be considering their options to maximise value in the short-term, whilst creating adaptability to respond to longer-term market changes. PDR can indeed play a valuable role in making immediate changes, particularly allowing changes of use. However, there are limitations to what can realistically be achieved without the need for some form of planning permission.

Class V of the General Permitted Development Order (GPDO), as an example, can be a helpful tool which can easily be used to incorporate flexibility into a planning permission. Class V allows for a building or land to change use to any other use permitted or specified by a planning permission for a period of 10 years. This can be used on a small scale (i.e. one retail unit), or on a much larger scale as part of a wider development strategy.

We have used this mechanism to successfully incorporate maximum flexibility in several schemes across the country, for example Rackham’s Birmingham on behalf of L&G, and Wakefield Waterfront on behalf of Capital and Provincial Properties Investments. Both examples involved the repurposing of existing struggling assets and, through a flexible permission using Class V, provided future flexibility in the use, management and marketing of the buildings for a prolonged period.

This type of flexibility can be achieved through the use of ‘parameter’ style floor plans to demonstrate where flexibility for uses is sought, and by using carefully constructed conditions to allow for design elements to be confirmed and developed in response to future occupier requirements, within a clear framework.

There are a range of other factors which need to be considered when using Class V (i.e. policy tests and environmental considerations for the different uses), but it can be used extremely effectively in the right circumstances, to protect flexibility on an explicit basis through the permission secured.

Parameters for Success

As well as providing flexibility for different uses, the planning system can also be used to incorporate a wide-range of design flexibility, and to retain the scope to vary other matters in response to changing circumstances through the use of ‘parameters’.

Such an approach, now common with many large-scale EIA applications (provided applicants stay the right side of the extensive planning case law) is often used when preparing outline and hybrid planning applications, and is particularly important on major, multi-phase sites, which will be delivered over a long period of time. Considerable flexibility can be incorporated into detailed and outline planning applications, provided there is clarity about the extent to which the flexibility being sought has been assessed as part of the application submission, within defined limits (e.g. such as relating to floorspace ranges).

The degree of flexibility considered to be appropriate will differ from site to site, but through the careful testing and shaping of parameters, a wide range can be secured. We have used this approach successfully across a range of projects in various sectors, including at Blythe Valley Park, Solihull on behalf of IM Properties, Port Loop, Birmingham on behalf of Urban Splash, Margarine Works, Southall, on behalf of Montreaux Developments Limited, and most recently at Martineau Galleries, Birmingham on behalf of Hammerson.

The type of flexibility required (and which can be achieved) will differ from site to site, so there is no ‘one size fits all’, but in all four examples, parameters have been used to incorporate a wide-range of flexibility relating to the quantum of development, uses, building heights, layout and design, to suit client specific requirements.

At Blythe Valley Park, as a previously untested market for the majority of new uses proposed (including residential, extra-care, retail, Food and Beverage, B2 and B8 uses), the key was to incorporate as much flexibility as possible, to enable this new mixed use place to develop organically in response to market demands.

To achieve this, a range of parameters and scenarios were assessed through the EIA, enabling a wide variety of uses to be permitted on each development plot, within a masterplan framework. The total combined floorspace permitted for each use exceeded what was ultimately deliverable across the site, thus allowing the site to respond to changing demands for different uses, which will fluctuate over the ten year life of the permission.

At Port Loop, flexibility has been built into the Reserved Matters consents to allow for MMC (Modern Methods of Construction) units to be constructed to different heights, sizes, and even for the overall number of units to fluctuate in response to occupier demands. This level of flexibility can be critical for developers to keep up with changing housing markets and occupier demands, and it requires a need to challenge common planning perceptions, particularly at the detailed or Reserved Matters stage, when complete certainty would ordinarily be sought or expected.

At Martineau Galleries, a wide range of flexible design parameters have been approved to allow the planning permission to respond to future market and contextual factors. This level of flexibility is of paramount importance in multi-phase city centre schemes, where the context and drivers of development can change quickly and sometimes unexpectedly. This level of flexibility reduces the risk of having to ‘revisit’ permissions at a later date in order to accommodate the requirements of occupiers or respond to other external factors.

At Margarine Works, Southall, one of the densest residential-led mixed use developments in west London, flexibility has been incorporated not only through the provision of a wide range of flexible uses and floorspace allowances (especially in relation to the non-residential element), but also by allowing most ground and some upper floor uses to be determined at reserved matters stage, subject - of course - to demonstrating compliance with wider masterplan principles. The parameter plans therefore similarly allow the detailed design to respond to occupier needs at a time when development actually comes forward which is vital for multi-phased schemes, particularly where they seek to establish a sustainable new neighbourhood over a ten (or more) year process.

Flexibility for the future

What the future holds will no doubt be the subject of significant further debate, and the planning and development industries will need to respond accordingly to any forthcoming reforms.

Whilst short-term changes will no doubt be needed to allow business to respond to COVID-19 - and the Government has already demonstrated though new PDRs that legislation can quickly be amended) - it is clear that the majority of longer-term trends will not be new, they will simply be an acceleration of existing trends, and some may well not be as extreme as initial predictions are suggesting.

The main trend we expect to see is developers, owners and occupiers needing to use space more flexibly across the board, with a less clear ‘distinction’ between uses, and with less constraint imposed upon them by the content of their planning decision notices. Instead of us seeing the ‘death’ of various sectors (retail, office etc.), perhaps we will instead see a ‘blurring of lines’, and a re-think of the use-class order may well be needed.

In the meantime, flexible planning methods already exist and can be used to enhance value through agile permissions, without the need for significant policy or legislative reform. There is significant value in delivering flexible and future-proof planning permissions and we have the skills and experience to help you maximise the value and adaptability of your sites and assets through the planning process. 

If you would like to get in touch to speak with us about flexible planning options, please contact Rosie Cotterill.

2 July 2020