Monday, 11 February 2013

Permitted development - office to residential

NOTE: For completely up-to-date and fully comprehensive coverage of the changes of use that are now authorised by the GPDO, we would strongly recommend readers to obtain a copy of the author’s new book on the subject - ”A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

The government’s intention to allow change of use from office use (within Use Class B1) to residential (Class C3) has caused a certain amount of concern and controversy, although property professionals are suggesting that the take-up of these new permitted development rights may not be so great as the government may be hoping, or as planning authorities and their officers seem to fear.

This is just one of a number of proposed changes to the GPDO that also include allowing agricultural buildings to be used for other purposes (but not for residential use) and increasing the amount of floorspace that can be changed between business use (B1) and storage use (B8) and from general industrial use (B2) to B1 or B8.

However, unless I have missed something, it seems that the statutory instrument to give effect to these changes has not yet been made and laid before parliament, nor does a draft statutory instrument seem to have been published. The intention is that the new provisions should come into effect this Spring (a usefully elastic season!), but the government seems to have jumped the gun by telling LPAs that if they want to claim exemption from the amendment order, they must apply to De-CLoG by no later than 22 February. This could well prove to be unlawful, and I suggest that some LPAs might wish to consider the possibility of challenging the legality of this apparently extra-statutory procedure!

In the absence (as yet) of a draft statutory instrument, we have only the statements of ministers and De-CLoG press releases to go on, plus the recent letter from De-CLoG’s Chief Planner, Steve Quartermain to local authorities as a guide to the contents of what will no doubt become the Town & Country Planning (General Permitted Development) (Amendment) (England) Order 2013. The core provision, presumably as an extension to Part 3 of the Second Schedule to the GPDO, will be the right to change the use of an office (Class B1(a)) to use as one or more dwellings. Exactly how many dwellings could be created in any particular office building is a point that may or may not become clear when we see the actual legislation. What is clear, though, is that any external alterations to the building will not be permitted development.

The new rights will initially be available only for a period of three years. The government will consider towards the end of that period whether they should be extended indefinitely. This new PD right will be subject to “a tightly drawn” prior approval procedure, which will cover significant transport and highway impacts, and development in areas of high flood risk, land contamination and safety hazard zones.

As mentioned above, local authorities are to be given an opportunity to seek an exemption for specific parts of their locality. However, exemptions will only be granted in exceptional circumstances, where local authorities demonstrate clearly that the introduction of these new permitted development rights in a particular area will lead either to the loss of a nationally significant area of economic activity or to substantial adverse economic consequences at the local authority level which are not offset by the positive benefits the new rights would bring.

If they consider that a specific part of their area should be exempted from this change, and that it meets either of these two criteria, LPAs have been invited to request an exemption from the new PD rights within the next fortnight (!) The fact that this will be a high hurdle to surmount is emphasised by the Chief Planner’s insistence that this measure is seen as an important contribution to assisting the economic well-being of the country and this is reflected in the high thresholds they are setting, which (it is claimed) recognise that any loss of commercial premises will be accompanied by benefits in terms of new housing units, additional construction output and jobs. These benefits (they say) are potentially very substantial and are likely to be felt at the local authority level and wider.

This does seem to be a very strange way to go about introducing an important change in planning legislation, and De-CLoG could yet prove to have tripped themselves up by the rather odd procedure they appear to have adopted in promulgating these changes.

[UPDATE (April 2015): The SI amending the GPDO came into effect on 30 May 2013, and has now been replaced by the new GPDO, with effect from 15 April 2015. The new rules on permitted development that this amended order introduced are now the subject of the book mentioned at the head of this post.]



john said...

i was told by my LPA that under Class J of the TCPA 2013 only the change of use of land with a primary use of B1(a) office to C3 residential is a permitted development, (the office is a seperate building but the site is B8) however i can find nothing in Class J to support this claim and i understood this development was bought in to releases unoccupied offices (above shops etc) into use, how would this affect several empty b1a offices on a farm for instance?

Martin H Goodall LARTPI said...

My apologies for the delay in moderating the comment from John submitted on 31/01/14. The precise identification of the existing planning unit and its current use is crucial to this question. A building or part of a building used as an office only comes within Use Class B1(a) if it is in itself a separate planning unit used exclusively for that purpose, i.e. if it is both physically and functionally separate from the farm (to use the example given) or other premises.

If, as seems very likely, the office is simply an ancillary part of a larger use – as a farm or for some other industrial or commercial purpose, then the use of the office will either be a part of that larger use (e.g. an agricultural use, a B2 use or a use falling within other parts of Class B1, or quite possibly a sui generis mixed use). In any of these cases, the PD right enabling a change of use from Class B1(a) (office) to C3 (residential) does not apply.