Sunday, 19 May 2013
Office to residential – the new right to change of use
NOTE: There have been significant changes to the law since this blog post was published, and so the material printed below does not accurately reflect the current position. For completely up-to-date and fully comprehensive coverage of this topic, 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.
As I mentioned in my recent piece on Larger Domestic Extensions [12 May 2013], the latest amendments to the GPDO, laid before parliament on 9 May and coming into force on 30 May, include other important changes to permitted development rights.
The right to make certain changes of use is to be found in Part 3 of the Second Schedule to the GPDO, and the new amendments have added to Part 3(among other changes that we will come to later) a new Class J. This consists of the change of use of a building and any land within its curtilage from a use falling within Class B1(a) (offices) in the Use Classes Order to a use falling within Class C3 (dwellinghouses).
In this post as first published, I speculated as to the physical extent of this PD right where an office use exists only in part of a building. I am grateful to Chris Anscombe for reminding me that Article 1(2) of the GPDO interprets “building” to include any structure or erection and (except in some other parts of the Second Schedule) it includes any part of a building, as defined in that article. Thus it is clear that the new PD right to change the use from office to residential does apply to a planning unit forming only part of the building, where that unit has been used as an office within Use Class B1(a) before 30 May . It could apply to each of several offices in a building if each of them is a separate planning unit.
The next question relates to an office building which, whilst it is a single planning unit as it stands, could reasonably be converted into a number of separate dwellings. Does the amendment order allow such a conversion? The order permits a change of use “to a use falling within Class C3”. The reference is to ‘a use’ in the singular, which suggests that the conversion of an office building to flats would not come within the scope of this provision. But this is no more than a tentative view on my part, and I would be interested to hear other views on this point.
The right to make this change of use is in any event hedged about by a number of limitations and conditions which need to be clearly understood by anyone contemplating such a conversion, and the change of use can only be made within the next three years.
First of all, a number of specified areas within 17 different local planning authorities have been exempted from these provisions. This in itself is controversial, and a legal challenge from one or more of the authorities which sought but did not obtain exemption cannot be ruled out. Similarly, in view of the procedure adopted in relation to these exemptions, I believe there may also be scope for judicial review applications in relation to that process itself. However, for the time being we must proceed on the basis that the Order will take effect as published. The list of exempted areas will be found in Part 4 of Schedule 1 to the GPDO, referred to in the order as “Article 1(6A) land”. Note that (in contrast with the position relating to larger domestic extensions) there is no exclusion in this case of a change of use on Article 1(5) land (land in a National Park, an Area of Outstanding Natural Beauty, a Conservation Area, the Broads or a World Heritage Site) or in an SSSI.
Assuming that the office building in question is not within one of the exempted areas, it will still only qualify for change of use to residential if it is actually in use for a purpose falling within Use Class B1(a) (offices) immediately before 30 May 2013 or (if the building has not been in use immediately before that date) it was used for a purpose falling within Use Class B1(a) when it was last in use.
This means that if a building has never actually been in use for a purpose falling within Use Class B1(a) (offices) at any time before 30 May 2013 or if, having previously been in use for a purpose falling within that category, it has more recently been used for any other purpose, including a use falling within any other category in Use Class B1, it will not qualify for change of use to residential. This will be bad news for any developer who has built an office building but has found it impossible to let or who, despairing of letting it for an office use, has allowed it to be used, even if only temporarily, for some other use.
Bearing in mind the judgment in Kwik Save Discount Group Ltd v. Secretary of State for Wales  J.P.L. 198, 201-202, if an office use commences only shortly before 30 May 2013, it may be advisable that it should continue for a reasonable time after that date before the developer seeks to make a change of use under these provisions. Kwik Save does not spell out how long such a use would need to continue before a change of use could be contemplated, but I recall an inspector’s decision (admittedly in a slightly different context) that it should be ‘a year and a day’, although that opinion does not appear to have been supported by any reasoning or judicial authority.
There are three other exclusions from this new right to change the use of an office building to residential. The right does not apply if the building is in a ‘a safety hazard area’ [an area notified to the LPA by the Health and Safety Executive for the purposes of paragraph (e) of the Table in Schedule 5 to the Development Management Procedure Order (or under the old General Development Procedure Order)], or if it is in a military explosives storage area [an area, including an aerodrome, depot or port, within which the storage of military explosives has been licensed by the Secretary of State for Defence, and identified on a safeguarding map provided to the LPA for the purposes of a direction made by the Secretary of State in exercise of powers conferred by article 25(1) of the DMPO (or under the old GDPO)], nor does it apply if the building is a listed building or a scheduled monument.
The change of use cannot take place until the completion of a prior notification procedure. The developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to - (a) transport and highways impacts of the development, (b) contamination risks on the site and (c) flooding risks on the site.
There are detailed rules relating to this procedure, which are set out in paragraph N. The application must be accompanied by a written description of the proposed development, a plan indicating the site and showing the proposed development [again, as with domestic extensions, this is ‘a plan’ in the singular, so it does not include elevations], the developer’s contact address or email address and, in this case, any fee required to be paid. But what fee? It is not clear how the Application Fees Regulations would apply in this case, unless those regulations are to be amended to include this type of application.
Where the application relates to prior approval as to transport and highways impacts of the development, where in the opinion of the local planning authority the development is likely to result in a material increase or a material change in the character of traffic in the vicinity of the site, the council must consult the relevant statutory consultees (highway authority, rail operators, etc.), and the same applies where the application relates to prior approval as to the flooding risks on the site (in this case the Environment Agency). In addition, the LPA must display a site notice for at least 21 days, and must serve a notice on any adjoining owner or occupier. However, there is no requirement in this case for the developer to supply the LPA with the addresses of any adjoining premises.
The LPA may require the developer to submit such information regarding the impacts and risks referred to above as they may reasonably require in order to determine the application, which may include assessments of impacts or risks and statements setting out how impacts or risks are to be mitigated. However, there is no power for the LPA to request additional information outside this fairly narrow subject matter, even if there are objections from neighbouring owners or occupiers; a request for additional information cannot extend beyond material relating to transport and highways impacts, contamination risks and flooding risks.
When determining the application, the LPA must take into account any representations made to them as a result of any consultation; they must have regard to the National Planning Policy Framework as if the application were a planning application and (in relation to the contamination risks on the site) they must determine whether, as a result of the proposed change of use, taking into account any proposed mitigation, the site will be contaminated land (as described in Part 2A of the Environmental Protection Act 1990), and in doing so they must have regard to the Contaminated Land Statutory Guidance issued by DEFRA in April 2012 (and if they determine that the site will be contaminated land, they must refuse to give prior approval.)
There is no specific requirement here to have regard to the development plan, so that on the face of it section 38(6) of the 2004 Act would not appear to be engaged, but the stipulation that the LPA must “have regard to the NPPF as if the application were a planning application” might be thought to bring this in by the back door. Paragraph 196 of the NPPF notes that planning law requires that applications for planning permission must be determined in accordance with the development plan, unless material considerations indicate otherwise, but this paragraph does not in itself bring section 38(6) into play. The intention of this paragraph in the NPPF is simply to stress that the Framework is a material consideration in planning decisions. Paragraph 197 also mentions that in assessing and determining development proposals, local planning authorities should apply the presumption in favour of sustainable development.
There is also some ambiguity in the requirement to “take into account any representations made to them as a result of any consultation”, bearing in mind that this consultation includes the notification of neighbours. If a neighbour objection is received that is based on some issue other than transport and highways impacts, contamination risks or flooding risks, should those representations be taken into account or not? One is certainly left with the impression that these prior notification applications for change of use from office to residential are likely to be dealt with as if they were planning applications, which could effectively frustrate the government’s purported intentions in promulgating this change to the GPDO.
Two other points, which are not referred to in the amendment order, must be borne in mind. First, a change of use of this kind must comply with the Building Regulations. Secondly, whilst section 55(2)(a) of the 1990 Act exempts from the definition of development the carrying out of works for the maintenance, improvement or other alteration of any building which affect only the interior of the building, or which do not materially affect the external appearance of the building, any works that do materially affect the external appearance of the building will be development (subject to the rule in Burroughs Day). The amendment order does not authorise any external works in connection with the permitted change of use, and so planning permission will be required for any such external alterations.
The conversion work cannot begin until the applicant receives from the LPA a written notice of their determination that prior approval is not required, or giving their prior approval. However, there is another long-stop date, in this case 56 days following the date on which the application was received by the LPA. If that period expires without the LPA notifying the applicant as to whether prior approval is given or refused, then the applicant is entitled to go ahead with the conversion. Like the 42-day time limit in respect of larger domestic extensions, this will put considerable pressure on LPAs to get through the process without delay, lest they run out of time.
As in the case of larger domestic extensions, where prior approval of the change of use is required, the development must be carried out in accordance with the details approved by the LPA or, where prior approval was not required or where the LPA did not notify the developer of its decision within the 56-day time limit, in accordance with the information provided in the original notification to the LPA. This, however, is subject to the proviso “unless the local planning authority and the developer agree otherwise in writing”, which (as I observed before) seems to give significant flexibility for agreed amendments without the need for any further formality other than some form of agreement in correspondence (even by email) between the developer and the LPA.
Finally, any change of use to residential use within Use Class C3 permitted under this provision must be begun before 30 May 2016, but there is no requirement to notify the LPA of the completion of the development in this case.
I am afraid we still haven’t finished with the GPDO amendments. There are other changes to Part 3 of the Second Schedule to the GPDO, and also to Part 4. These will have to be the subject of a future post.
© MARTIN H GOODALL
UPDATE: This post attracted a large number of comments, but as mentioned at the head of this post, many of these have been overtaken by subsequent changes to the GPDO. Readers really do need to refer to the book mentioned above in order to get a fully up-to-date account of this subordinate legislation.