Ralph Taylor, Planning Consultant and permitted development and conversion specialist at Planning and Development Consultancy Paul Butler Associates, shares his thoughts on the recent introduction of an Article 4 Direction in the borough of Trafford, Greater Manchester, and the wider process around how Local Authorities go about introducing Article 4 Directions to remove permitted development rights which allow for the change of use of dwellinghouses (use class C3) to small HMOs (use class C4).

On 15 December 2017 Trafford Council announced the borough-wide introduction of an Article 4 Direction.  The Article 4 Direction came into force just six days later on 21 December 2017 and removed existing national permitted development rights which allow for the change of use of dwellinghouses (use class C3) to small HMOs (use class C4) (HMO occupied by 3-6 residents).  This meant that from 21 December 2017 anyone wishing to convert a dwellinghouse (use class C3) to a small HMO (use class C4) anywhere in Trafford would need to apply for planning permission.

The Article 4 Direction will not necessarily mean that the conversion of dwellinghouses (use class C3) to small HMOs (use class C4) will be refused, just that a planning application will need to be submitted.  As with other planning applications, an application would need to be considered by the Local Authority in accordance with the local development plan and taking into account any material planning considerations.

The National Planning Policy Framework (NPPF) is the Government’s key planning policy document.  Paragraph 200 advises that ‘The use of Article 4 Directions to remove national permitted development rights should be limited to situations where this is necessary to protect local amenity or the wellbeing of the area.’

National Planning Practice Guidance (NPPG), the practical guidance which elaborates the NPPF, states that provided that there is justification for both its purpose and extent, an Article 4 Direction can:

  • ‘cover an area of any geographic size, from a specific site to a local authority-wide area
  • remove specified permitted development rights related to operational development or change of use
  • remove permitted development rights with temporary or permanent effect.’

It goes on to states that Local Authorities should clearly identify the harm that the Article 4 Direction is intended to address, and that ‘particularly strong justification’ should be provided for the withdrawal of permitted development rights where they cover a wide area (eg. those covering the entire area of a Local Planning Authority).

Trafford Council identify that the proposal for the ‘University Academy 92’ in Old Trafford has prompted the introduction of the Article 4 Direction.  The Council suggest that the proposed university will lead to an influx of students to the Borough and that this could cause imbalance to the local housing market, reducing traditional family housing.  It is felt that an associated increase in HMOs could also harm residential amenity including through increased noise levels, additional comings and goings, and patterns of use that are generally more intensive than would normally be expected for a C3 dwellinghouse.

Provided they comply with the relevant national guidance (NPPF and NPPG), Local Authorities have the ability to introduce Article 4 Directions as they see fit.  The decision is usually taken following a decision by members of the Planning Committee, although there is no independent overseeing body to judge whether the Article 4 is warranted.  In effect this makes the Council judge and jury.

This differs from when Local Authorities introduce formal development plan documents, which are subject to extensive review by a Planning Inspector appointed by the Government.  Whilst the Government can intervene to cancel or modify an Article 4 direction at any time, the process around the introduction of Article 4 Directions is criticised for a lack of scrutiny and oversight.

There is also no right to appeal against the introduction of an Article 4 Direction, although a Judicial Review (JR) could be submitted if a Council had not followed procedure.  Other than JR, the motivations, legitimacy and efficacy of the Article 4 Direction cannot be contested by third parties.

Trafford’s Article 4 Direction appears to have been tabled on 15 December without any prior warning being given by the Local Authority.  The Article 4 was in force six days later.  This could cause a major issue for developers and investors who have recently purchased a C3 dwelling expecting to convert it to a small HMO (use class C4) as permitted development.

Developers finding themselves in this situation would need to apply for planning permission to convert the C3 dwelling to a small HMO (use class C4).  There is an obvious danger that any application may be refused planning permission possibly leading to a significant decrease in a property’s potential resale value.

From 12 months following the introduction of an Article 4 Direction, Local Authorities may be required to pay compensation to developers for work related to preparing planning applications for change of use to small HMOs (use class C4), where the application is refused or restrictive conditions are applied.  Compensation is not available for any loss associated with acquiring or holding a property.  The sudden introduction of an Article 4 Direction therefore has the potential to create significant hardship for developers who are caught out through no fault of their own.

The Article 4 Direction in Trafford covers the whole of the Borough.  The Council suggest that a more focussed boundary could lead to the spread of student HMOs into areas which had not previously seen large number of students.  As noted previously, Government guidance requires that ‘particularly strong justification’ is provided to withdraw permitted development rights for a whole authority area.  This is a ‘high level test’ and it is not clear whether Trafford Council can reasonably be considered to have met this requirement.  An Article 4 Direction focussed on the immediate vicinity might be justified, whilst a borough-wide Article 4 Direction might not withstand scrutiny.  Areas in the south of the borough which have some of most expensive housing in the North of England (eg. Hale, Bowdon, Altrincham), are unlikely to be at risk from a surge in HMOs.

Salford City Council have recently consulted on the introduction of an Article 4 Direction to remove permitted development rights allowing C3 dwellinghouses to be converted to small HMOs (use class C4).  Salford’s approach differs markedly from that of Trafford.  The Salford Article 4 Direction would only apply to central wards considered most ‘at risk’ of permitted development conversions.  Other areas such as Walken, Worsley and Swinton would not have permitted development withdrawn.  Salford have held off introducing their Article 4 Direction until they have considered the response from a public consultation.

Although an Article 4 Direction is ultimately anticipated, the decision to bring it into force would not be taken until 25 November 2018.  This ‘delay’ is clearly significant as it would provide developers currently in the process of developing a HMO time to complete the conversion and not acquire further projects unless they were prepared to apply for planning permission.

The Article 4 Direction in Trafford could also be considered to be somewhat premature.  Press releases suggest the university will open in September 2019, however no planning applications for the development have yet been submitted.  Perhaps the Council could have waited to see if any of the HMO impacts identified actually materialise, before introducing a blanket Article 4 Direction.

In summary, the introduction of Article 4 Directions represent a significant risk for developers and investors, particularly when they are brought into force without any apparent prior warning.  Where this happens there is very little that can be done, except submitting a planning application and ensuring it is as robust as possible, giving the best possible chance of securing approval.  Should planning permission be refused, the applicant will need to be prepared to appeal to the Planning Inspectorate.

Applications and appeals should be undertaken by a professional Planning Consultant to give the best chance of success.  When looking at acquisition of potential properties it is important for developers to identify whether there is an Article 4 Direction in place and to understand its implications.  Getting expert advice and assistance from a qualified Planning Consultancy helps to minimise risks and can maximise developers’ chances of securing planning approval.

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Ralph Taylor is a Planning Consultant at Paul Butler Associates.  He is a specialist in advising on permitted development rights legislation and preparing and managing planning applications and appeals.

Paul Butler Associates is a Salford-based independent chartered planning, development and heritage consultancy that provides specialist advice for public and private sector clients.

The practice was founded by Paul Butler in 1992.  Paul wanted to provide professional, independent, cost-effective and imaginative advice to public and private clients and this remains our motivation today.

The practice has grown steadily since its foundation and we now have a committed and experienced team of qualified professionals who understand the interests and aspirations of developers, the responsibilities of local Authorities and the needs of local communities.

For more information about Paul Butler Associates visit www.paulbutlerassociates.co.uk

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