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 [1981] 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.


50 comments:

Evan Owen - Snowdonia said...

Very interesting.

I have been looking at the many police houses that were converted to 'offices for police station' during the early 90's. LPAs insist that they are 'sui generis' so they may not qualify for this government 'policy on the hoof'.

Shelley Coffey said...

Do any rights of appeal relate to these new permitted development rights? Particularly the new change of use rights?

Martin H Goodall LARTPI said...

In answer to Shelley’s question, a developer whose prior notification application is refused has the choice either of then making a full planning application or of appealing the refusal to the Planning Inspectorate under section 78 of the 1990 Act in the usual way. I suspect that most developers would choose the latter course.

Max P said...

It would be interesting to understand people's thoughts on the relationship between s106 and the new PD rights. I am acting for a client on an office scheme that we are proposing to covert to resi and extend to create further units. I am currently debating with the LPA as to whether contributions are payable on the new floorspace only. We are keen to submit as a comprehensive application for the facade amendments, car park reconfiguration, amenity area and the extended area but my fall back is to submit as separate applications to avoid contributions on the existing floor area. Any thoughts?

Martin H Goodall LARTPI said...

Regrettably, time does not permit me to discuss the point raised by Max, as this clearly requires careful consideration. However, it is the sort of point on which Keystone Law’s planning law team would be happy to advise if we were to receive instructions in the matter.

Andy Ward said...

A passing thought on the office-to-residential relaxation:

Many LPAs remain wedded to retaining office and other employment allocations, despite a lack of demand or an existng plentiful supply, and despite Government statements and the NPPF promotinng flexibility.

The temporary nature of this relaxation may make it harder to deal with such LPAs. Firstly, a successful relaxation would see plenty of empty offices converted to residential, with oversupply in certain locations neutralised or even reversed.

So, after 3 years some Councils may find themselves in a stronger position when it comes to protecing current employment allocations. This in turn may frustrate the regeneration of sites that are only viable to develop for housing.

Things may or may not work out precisely like this but, at the very least, it highlights to me the lack (yet again) of any real thought about the longer term consequences of these short term actions.

It's almost as if Government planning policy is being run on the same basis as Manchester City at the moment: they think immediate success on housing growth can be bought with short term regulations.

Anonymous said...

Unless I've completely missed it, and I possibly have, what about the issue of environmental compatibility between the B1 office site and surrounding uses? Many B1 offices are found in the midst of industrial estates. It is very plausible that the site could be situated right next to a noisy and smelly B2 use. By changing the use of the premises to C3, there could be all sorts of conflict. The occupier of the new C3 use might decide to lodge a complaint to the local EHO, being fed up with noise and smells from their commercial neighbour, and an investigation follows. An abatement notice could be served requiring the B2 use to shut down, even though it was there well before this whole daft idea of pd notification for office to C3 was ever thought of! Of course the consideration of environmental compatibility with neighbours does not appear to be one of the three material considerations relevantt to the consideration of the prior notification (it is limited to highways, contamination and flood risk issues). If I was a land holdings company with interests in an industrial estate then I might well seek a JR on this point alone. Surely this is the biggest pitfall of them all with this whole process...unless, as I have said, I have missed something!!

Anonymous said...

Martin, Thanks for the summary. You state 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.

Surely 'uses' would infer more than one type of use. A building used for 3 residential flats would still be in residential use.

Mandip Sahota said...

Martin,

One aspect that does not seem to have been discussed in any detail, either in this blog or others, is the exclusion of listed buildings from the permitted change. I would have thought their exclusion would have been in the interests of ensuring that the heritage asset is not harmed in any way, i.e. the change of use is made including gutting the building, followed by "we thought it was PD". If indeed this is the case, why can it not be dealt with through the prior notification procedure?

To my mind it seems odd that many listed buildings, that were originally built as dwellings but now used as offices, should be expempt from the permitted change, which would in fact return the buildings to its former and intended use.

Yours thoughts would be very much welcomed.

Mandip Sahota (NT&A)

Anonymous said...

On the issue of whether one could change an office building to flats has anyone a view on the fact that the citation, commencement and interpretation section of the GPDO says that "dwellinghouse" does not include a building containing one or more flats, or a flat contained within such a building" and how this affects intepretation of the new Class J?

Martin H Goodall LARTPI said...

The new provision refers to “a change of use of a building and any land within its
curtilage to a use falling within Class C3 (dwellinghouses)” whereas the definition in Article 1(2) of the GPDO refers specifically to the word “dwellinghouse” in the singular. However, this may simply be sloppy drafting, bearing in mind that the actual wording of Class C3 in the UCO is "use as a dwellinghouse....." (i.e. in the singular). So maybe this doew rule out flats in practice.

In any event, as I explained earlier, I am not convinced that the new Class J allows a division of one B1(a) planning unit into several C3 planning units (i.e. flats). Some might argue that it could do, but this is yet another area of ambiguity and possible dispute. If advising a client, I would counsel caution, and assume that only one C3 planning unit can be created from each B1(a) planning unit. But I am open to further suggestions.

Mandip Sahota said...

I raised this query with DCLG; i received the following response:

The text in brackets in the term "C3 (dwellinghouses)" in Class J as set out in SI 2013/1101 refers to the title of the class within the Town and Country Planning (Use Classes) Order 1987 and is purely an aide to readers, not a substantive provision. Following the amendments in SI 2013/1101 B1(a) (ie offices) may change use to C3 (ie flats and houses) using permitted development rights under Class J of the GPDO.

I trust this helps.

M Sahota

Anonymous said...

I'm not convinced by this response from DCLG. That may what was intended (see various ministerial waffle) but it is not what is stated in the legislation. Any thoughts Martin?

I don't suppose they are going to publicly clarify this point (given that it will be publicly admitting to making a hash of it) although it would be useful to do so given all the confusion.

Martin H Goodall LARTPI said...

I didn’t rise to the bait when the De-CLoG explanation was kindly relayed to us by Mandip Sahota, but I agree with the latest (anonymous) comment. The suggestion by De-CLoG that the term "C3 (dwellinghouses)" as used in the wording of the amendment order “is purely an aide to readers, not a substantive provision” is complete nonsense. It is part of the substantive wording of the amendment order. What the civil servant quoted by Mandip may have intended to say is that where it is used in the UCO itself the term "C3 (dwellinghouses)" is only a heading and not part of the substantive text. Hence my observation that the actual wording of Class C3 in the UCO is "use as a dwellinghouse....." (i.e. in the singular).

Just to throw another pebble in the pond, if we go back to the definition of a “building” as used in the GPDO, of which I was helpfully reminded by Chris Anscombe (and this was later incorporated in my amendment of the original text of the main blog item), the definition of this word in Article 1(2) of the GPDO includes any part of a building. It has subsequently occurred to me that not only does the new PD right to change the use from office to residential apply to a planning unit forming only part of the building, it might also apply to just part of a planning unit used for that purpose, so that more than one dwelling could (arguably) be formed from one large planning unit in office use before 30 May 2013 (or most recently used for that purpose before that date). Each flat so formed, it might be argued, would represent a change of use of “part of a building” from a use falling within Class B1(a) (offices) in the Use Classes Order to "use as a dwellinghouse” (within Use Class C3).

So my previous scepticism as to the ability to convert an office block into a block of flats may have been unjustified. I shall be very interested to see if anyone tries this, and if so with what result.

PGH said...

I am interested to see what the position is going to be with offices which are subject to a condition on their original plannin gpermission restricting their use to Class B1(a) offices or to a named occupier. For example a condition which states "Notwithstanding the provisions of the General Development Order etc etc, the office accommodation hereby permitted shall be used in connection with the use of the adjoining premises as a xxxx, and for no other purpose including any other purpose within Class B1(a)". Will the existence of such a condition trump the right to change the use to Class C3 under these new permitted development rights?

Martin H Goodall LARTPI said...

My immediate reaction to PGH’s query is that in the circumstances described, the right to change from office to residential use is excluded by the condition. It is not unusual for PD rights to be excluded by condition, and it is quite possible that conditions may exist that will prevent the new right to change from office to residential use being exercised.

PGH said...

Martin, my thought too. It is not uncommon for office developments to be subject to conditions restricting their use, and particularly precluding changes of use to other uses within Class B1 (such as B1(b) or (c)). I do wonder whether the Government appreciate the extent to which their aspirations of relaxing the planning regime will be frustrated by the existence of conditions like this; similarly in trumpeting the increased permitted development rights for houses, are they aware of the large number of properties subject to conditions withdrawing permitted development rights who will not benefit.

charlotte said...

Martin,

You mention in your blog an interesting point regarding the requirement to provide a fee to the LPA for the prior approval process.

In looking into this matter in a bit more detail, it has become apparent that there is a huge discrepancy in what some LPA's are charging? A number have confirmed that the process does not incur a fee (Bradford City Council as an example). Others have confirmed there is a flat fee of £80.00 (LB Richmond, Royal Borough of Windsor & Maidenhead) whilst rather shockingly LB Camden have recently sent us an 'application form' outlining a fee of £192.50 for each new residential unit created (!).

Surely the Council cannot simply make up their own fees for the service or am I missing something?

Anonymous said...

Whats preventing long standing empty office buildings from being converted into a dwelling? Not sure that 'last use' takes this into account. The last use could have happened 16 years ago.

Also if the location is not sustainable for dwellilngs (NPPF para 55)is this taken into account?

Any thoughts?

Martin H Goodall LARTPI said...

I have been away for a short break, hence the slight delay in the last two comments appearing here.

So far as fees are concerned, Paragraph N(2) in the amendment order simply provides that : “The application shall be accompanied by — ..... [specified items] ...... together with any fee required to be paid”.

I have double-checked the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012. Regulation 14(1) provides that “Where an application is made to a local planning authority for their determination as to whether the prior approval of the authority will be required in relation to development under Schedule 2 to the General Permitted Development Order (permitted development) a fee shall be paid to that authority of the following amounts — (a) for an application under Parts 6 (agricultural buildings and operations), 7 (forestry buildings and operations) or 31 (demolition of buildings) of that Schedule, £80; (b) for an application under Part 24 of that Schedule (development by electronic communications code operators), £385.

Thus, as things stand at the time of writing (18 June 2013), NO FEE IS CURRENTLY PAYABLE in respect of applications under Part 3 of the GPDO. So Richmond and Windsor & Maidenhead are wrong to demand £80, and I wonder where Camden got their figure of £192.50 from (Half the fee payable under Part 24? But how did they work that out?!)

However, in view of the reference in Paragraph N of the amendment order to “any fee required to be paid”, it is to be expected that an appropriate reference to Part 3 will be added to Regulation 14 of the Fees Regulations by means of an amendment of those regulations at some stage in the not-too-distant future. Meanwhile, there appears to be an opportunity for a ‘free go’! Furthermore, if LPAs mess about demanding a fee and refusing to ‘validate’ or ‘register’ the application until or unless a fee is paid, they will be at considerable risk of running out of time, and could end up allowing the permitted development to be carried out by default. A canny applicant, might just sit back and ignore such demands and simply wait for the time limit to expire, then go ahead with their development!

Moving on to the date when a building was “last used” within Use Class B1(a), it would have to be shown ‘as a matter of fact and degree’ that (on the one hand) the building had not been used for any other purpose since it ceased to be used within Class B1(a) but (on the other hand) that the use had not been ‘abandoned’ (a concept that is too complex to discuss within the scope of a brief comment).

Martin H Goodall LARTPI said...

Further to this last comment about fees, I am grateful to Richard White for drawing my attention to the draft Fees Regs amendments that have now been published. (See http://www.legislation.gov.uk/ukdsi/2013/9780111539293/contents ) These changes are due to come into effect on 1st October.

So the fee will be £80, but if you get your application in before 1st October, you don’t have to pay a bean! It seems odd that they didn’t make this amendment to the Fees Regs on 9 May timed to come into effect on 30 May – Was somebody in DeCLoG a bit behind with their work?

The other fee changes in the Fee Regs amendment are worth looking at as well. If time allows (unlikely at the moment!) I may blog on these in due course.

Anonymous said...


hello Martin,

am curious to know your thoughts on the case of a live work unit where 50% is live and 50% is b1

i would presume that the b1 element could be changed to residential ?

Martin H Goodall LARTPI said...

I have always taken the view that a ‘live/work unit’ (part C3, part B1) is a mixed use and therefore sui generis. A possible exception might occur where the B1 element is quite small, so that it might really be no more than ancillary to the residential use (i.e. working from home).

In a case where the B1/C3 use is 50/50, I don’t think there can be much doubt that you are looking at a sui generis use, especially if the use and occupation of the unit is governed by conditions attached to the planning permission under which the unit was created.

So I don’t think that the right to change the use of a building (or part of a building) from B1(a) to C3 would apply to a ‘live/work unit’. Yet I have a lingering doubt about this. So I wouldn’t rule it out completely, especially if the B1(a) element can be shown to occupy a particular part of the property. The only problem then would be to decide whether the change of use would have to be to use as a free-standing dwelling or whether it could be subsumed within the existing dwelling. Something tells me the planners might be inclined to resist this.

In practice, the conditions governing the use and occupation of live/work units are frequently ignored, and the entire unit soon gets used for solely residential purposes. If this happens, the resulting change of use, and also the breach of condition that may well be involved, will both become immune from enforcement under the 4-year rule (not the 10-year rule) – see the Court of Appeal decision in Arun.

Anonymous said...

I have submitted 3no. Prior Approval applications to Any Town Council under Class J of the Town and Country Planning GPDO 2013 for the change of use of first floor offices to dwellings in a town centre location

The LPA have consulted with their Highways Team ( transport and highways impacts of the development), their Environmental Protection Officer (contamination risks on the site) and the Environment Agency (flooding risks on the site); all consultees have raised no objections to the application.

The Council have now however consulted thier EHO who deals with noise issues, and has raised concerns over the potential impacts of the residential use from an adjoining existing commercial premises - is this approach within the provisions of Class J...........I am not aware that the EPA 1990 is there to deal with noise?

Any views, please ?

Martin H Goodall LARTPI said...

The new provisions are frankly ambiguous, and are bound to lead to legal disputes which may ultimately end up in the courts.

Under paragraph J.2, the developer is required to 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.

At face value, this might be taken to indicate that these are the only issues that the LPA can take into account in deciding whether their prior approval of the proposal is required. But read on.

The powers and duties of LPAs as regards consultations are set out in paragraphs N(3) and N(4). They are entirely dependent on whether the application relates to prior approval as to transport and highways impacts of the development [N(3)] or to the flooding risks on the site [N(4)]. The position as to contamination risks is governed by paragraph N(8)(c). The consultations that must be carried out are specified by those respective paragraphs.

Arguably, noise issues are not one of the risks on which the LPA should consult as such, and so it must doubtful whether the EHO should have been consulted.

It may be worth noting in passing that, by paragraph N(7), the LPA’s power to require the developer to submit further information is confined to risks referred to in paragraph J.2, K.2(b) or M.3(b).

On the other hand, we have the requirement set out in paragraph N(8) that the LPA must when determining an application, not only take into account any representations made to them as a result of any consultation under paragraphs (3) or (4), they must also take into account any representations made to them as a result of any notice given under paragraph (6), and they must have regard to the NPPF as if the application were a planning application.

This has the effect of potentially widening the scope of the matters that the LPA must take into account very considerably. The EHO’s concerns over the potential impacts of the residential use from adjoining existing commercial premises might well fall within the heading of responses under paragraph (6), and neighbours and others might make representations on a wide variety of other topics. Should those that do not relate to transport and highways impacts of the development, contamination risks on the site and/or flooding risks on the site be disregarded? Or should all matters that have been raised be taken into consideration? And (as we have discussed before), what exactly is the effect of the requirement also to have regard to the NPPF as if the application were a planning application?

The only remedy for a frustrated developer will be to appeal to the Planning Inspectorate, and argue these points in their appeal case. I would not like to hazard a guess as to how inspectors might deal with these issues, and some excursions to the High Court would seem to be almost inevitable. More work for the lawyers! Bring it on.

Anonymous said...

We have registered application under Class J, which we now believe
A: was not an office on 30th May (or last used) and
B: has a condition on the original decision (an appeal decision) which restricts the use to Class B1.
Should these be reasons for refusal, or should we tell the developer that the application is not valid and ask them to withdraw it (or something else!)

Martin H Goodall LARTPI said...

The comment above (dated 19 July) seems to have got lost in the system, so was a bit late being published.

If what this comment says is correct, then it would appear that there are two grounds on which a change of use cannot be made from B1 to C3 in this case. The LPA should certainly tell the applicant, sooner rather than later, that in their view the proposed development cannot be permitted development in any event. Withdrawal of the application by the applicant would obviously be the neatest way of resolving the situation.

Failing that, it is not entirely clear what procedural course should be taken. The LPA could perhaps decline to take any further action in the matter but, if it turns out they are wrong, this could result in prior approval being given by default. The planning officers certainly need to check out the factual position very carefully before committing themselves to a particular course of action in this case.

Anonymous said...

I understand that some local authorities in London are concerned about the relationship between the Housing Design Standards and affordable housing requirements within the London Plan, part of their development plan. I have been assuming that they will just have to live with the fact that pd conversions may not meet these requirements. However your very helpful brief raised the issue of whether proposals requiring prior notification should be treated as a planning application in terms of applying the NPPF and potentially the development plan. Could you expand on this? If policies could be applied to the decision to approve, would only policies relating to the 3 named considerations be relevant or could issues such as housing standards be looked at?
Another question – is there any advice on what a ‘material change’ in traffic, transport and parking issues might constitute? This will be the key issue for most London boroughs considering prior notification applications as things stand at present, and any advice would be very helpful.

Martin H Goodall LARTPI said...

The questions raised in this latest query are highly relevant and correctly identify the significant difficulties both for LPAs and developers arising from this recent subordinate legislation. Regrettably, I am unable at this stage to add to what I have already written on this topic. The government has left us with some seriously ambiguous legislative wording, and only decided appeals and even (if necessary) one or more High Court judgments are likely to resolve these difficulties.

On the final question, I would suggest that the normal traffic and highway issues that might arise in relation to ordinary planning applications would come within this heading and could, in principle, be relevant considerations in determining those prior approval applications in which such issues arise.

Anonymous said...

Good evening,

I am sorry to interrupt at this late stage and I wonder if anyone could give me, a novice some of the expert advice that seems to be out there. In advance, any help would be very much appreciated.

My current 15 year commercial lease expires in 5 years and my landlord is currently not renewing old leases and are running a policy of renovating properties and re-letting at higher rents. I am in a quite unique position to have been offered a new 15 year lease now if I renovate a former barn into a dwelling. This is where my problem originates. I fear that gaining residential planning consent will prove to be difficult for a number of reasons.

I renovated the barn into a good dry sealed building about 14 years ago and ran it as a shop for a few years until I fell out with a neighbour who lodged a complaint shortly after the shared access drive came into their possession, I was then closed by the local council. Now here comes my question.

Can I use the ruling discussed here to guarantee change of use automatically to residential based on the fact that I run my online sales business from the former barn and have done so for a number of years.

That's it, thank you.

Best wishes
Mike

Martin H Goodall LARTPI said...

Mike’s question is far too detailed to admit of a quick answer here. However, it is the sort of point on which Keystone Law’s planning law team would be happy to advise if we were to receive instructions in the matter.

Anonymous said...

Hi, I submitted my application on 16th September 2013, my LPA wrote to me "Thank you for the above application which I received on 16 September 2013.
If you have not received a decision by 10 November 2013 you may either:
a) agree in writing that the time period for a decision may be extended; or
b) appeal to the First Secretary of State within 6 months from that date. Appeals
must be made on a form obtained from the Planning Inspectorate, Temple Quay
House, 2 The Square, Bristol, BS1 6PN.
Please note that the above description may have been amended for clarification. I will
assume that you accept the description unless I hear from you by 03 October 2013."
Now 56 days period has expired and I did not hear anything else from LPA; does this mean I can go ahead with the change from B1 to C3 and rent this office out as a flat?

Please advise.
THANK YOU IN ADVANCE.

Anonymous said...

A neighbour believes that the premises in question were not an office on 30 May (or last used) and raised this as part of the consultation process.

Nevertheless, prior approval is given (possibly by default). What can the neighbour do please?

Martin H Goodall LARTPI said...

If the basic qualification (used as an office on or before 30 May, or last used as an office before that date) is not met, then the permitted development right for change of use to residential use cannot arise.

In these circumstances, it would appear that any determination of (or failure to determine) the prior notification application would not affect the legal position. The facts should be drawn to the attention of the enforcement officer as a potential breach of development control.

However, in the circumstances, the LPA might be reluctant to take any action, or might prefer to regularise the position by granting planning permission for the change of use.

Martin H Goodall LARTPI said...

In answer to the earlier query of 9 November, the wording used by the LPA in their acknowledgement of the prior approval application is that which one normally expects to see in response to a planning application. As my correspondent points out, if a period of 56 days following the date on which the application was received by the LPA 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 without further ado. It would therefore seem that the applicant is now entitled to proceed with his development.

BUT, this is subject to the development complying in all other respects with the qualifications and stipulations set out in the new rules in Part 3. As I have pointed out repeatedly in this blog (particularly with regard to agricultural development under Part 6), giving prior notification will not entitled the developer to go ahead after expiry of the relevant default period if the development does not in fact qualify as permitted development in any event. So this needs to be carefully checked before pressing ahead with the conversion.

Anonymous said...

Hi Martin

Are you aware of any appeal decisions since May re this question as to whether a B1(a) office could be converted to flats? My view is "No" for the following reasons:
-the definition of "dwellinghouse" in the GPDO states (Article 1- "dwellinghouse does not include a building containing one or more flats, or a flat contained within such a building)

2) As reported in the Planning Encyc at Vol 6 3B-979, in Richmond LBC v Secretary of State for Environment, Transport and the Regions (2000) the High Court held that a change of use of a building from 7 flats into a single dwellinghouse was outwith C3.


My concern re this stance is why the reference to "dwellinghouses" (Plural) in Class J? and of course such a negative interpretation is extremely inconvenient, particularly when considering larger office buildings and the intention behind the change.

However the loss of infrastructure payments and affordable housing must I would have thought have prompted LPA's to challenge the lawfulness of multiple flat schemes

Martin H Goodall LARTPI said...

Part 3 (Class J) of the Second Schedule to the GPDO permits 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). As previously noted, Article 1(2) of the GPDO interprets “building” to include (for this among other purposes) any part of a building, as defined in that article.

Up to now, I have accepted the widely held view that multiple conversions of offices to flats are permitted by Class J, because the effect of such a conversion is to change the use of each part to use as a single dwellinghouse (see Van Dyck -v- SSE (CA)[1993] JPL 565). I take the point, though, that in the context of Part 3, rather than relying on the judicial authority cited above, we ought perhaps to apply the definition of a “dwellinghouse” in Article 1(2) of the GPDO instead, which states in clear terms that “dwellinghouse” does not include a flat contained in a building containing one or more flats.

The logic of this interpretation (if it is correct) is that Class J does not authorise the conversion of any part of a building used as an office (in Use Class B1(a)) to a flat or flats, but that it allows only a conversion into one or more dwellings that are either stand-alone dwellings or which form a terrace (without any part of the building being divided horizontally, so as to form a flat or flats).

One counter-argument that occurs to me is that Article 1(2) states that the terms listed in that paragraph have the meanings assigned to them “unless the context otherwise requires”. It might therefore be argued that in the context of Part 3, Class J, the context does require that the permitted change of use includes conversion to a flat or flats. But I certainly don’t put that forward as a settled view.

The proposition of my anonymous correspondent might perhaps be deployed by those seeking to resist the loss of office units to residential use, particularly in certain parts of London, but I wouldn’t like to predict the outcome if this interpretation were to be disputed, so as to lead to an appeal and possibly then come before the High Court.

Anonymous said...

I applied for PD for the part of a B1 building (1st floor) that was last used as offices and where the ground floor is used for store of goods. The council sent back my check for £80.00 with a note saying that because the whole building isn’t used as offices they won’t validate my claim.
Does the council not have to either approve or refuse an application? And is it correct that the entire building has to be used as offices which is contradictory to what you write “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.”?

Martin H Goodall LARTPI said...

This latest anonymous comment raises an interesting point. If the building as a whole is in mixed use, then this is a sui generis use and no part of it would qualify for change of use from B1(a) to C3. If, on the other hand, the First Floor (which is used as an office) is a separate planning unit (as defined by the Burdle judgment, i.e. a separate unit of occupation, or both physically and functionally separate from the remainder of the building), then it does not matter what the other parts of the building are used for. As my anonymous commentator points out, Article 1(2) interprets “building” to include any part of a building, but in this case either the whole building would have to be in office use, or the part in question that is in office use would have to be a separate planning unit.

If the LPA is correct (i.e. if the office is part of a mixed use that includes other parts of the building), then the right to change the use of the part that is used as an office to residential use does not arise, and they were right to return the application and fee cheque. However, if the LPA has got it wrong, and the part of the building in office use does form a separate planning unit, and was in use on 30 May as an office within Use Class B1(a), then the prior approval application was a valid application, accompanied by the correct fee, and the fact that the council failed to process the application and returned it to the applicant cannot prevent the right to carry out the change of use, arising 56 days after the application was received by the council in the absence of any determination by the council.

I cannot, of course, give a definitive answer to the question without having the full facts before me (plus proper instructions to advise in the matter). In the meantime, the disclaimer of liability set out in the introduction to this blog must apply.

RP said...

Firstly thank you for this informative blog.

In reference to the "year and a day" guideline in the original post, is there any part of the legislation that states developers cannot change a currently occupied office into a residential property? If an office is currently in use then presumably it falls under the B1(a) qualifying criteria yet is serving a useful purpose and the existing occupants should have some protection?

Secondly, in relation to the planning unit mentioned in the answer to the mixed use question above. Is it possible to provide a description of/link to a "planning unit" as I am not familiar with it.

Thank you.

Martin H Goodall LARTPI said...

The ‘year and a day’ guideline came from an inspector’s decision in a planning appeal some years ago involving another change of use under Part 3 of the Second Schedule to the GPDO. I am not aware of any judicial authority that would back this up, although the Kwik Save case (also on Part 3) made it clear that 2 months’ qualifying use was insufficient to enable the occupier then to change the use in reliance on PD rights under Part 3 (in that case from car showroom to retail – a PD right that has long since been withdrawn from the Order).

The point is that something like the rule in Kwik Save is likely to apply to offices which were only briefly occupied before 30 May 2013 before a prior approval application for change of use to residential is made under Part 3. However, if an office use started only shortly before 30 May 2013 continues for some months, maybe a year, before the prior approval application is made then this would appear to meet the Kwik Save test.

As regards an office that is still in use as such (within Use Class B1(a)), the GPDO itself gives the current tenant no protection. However, the tenant would undoubtedly have contractual rights under the terms of their lease or tenancy, and some protection under the Landlord & Tenant Act 1954.

Finally as regards a mixed use and the identification of the planning unit, the quickest way to find material on that topic in this blog is to put Burdle into the search box at the top left-hand corner of the Home page (immediately above the main blog title) and click on the search button. The judgment in Burdle is the leading authority on the definition of “planning unit”, and has been mentioned in this blog on a number of occasions.

Martin H Goodall LARTPI said...

There is one minor correction to what I wrote above about the ‘year and a day’ guideline. The inspector’s appeal decision I had in mind related to an outbuilding in the curtilage of a dwellinghouse, which had been erected as permitted development under Part 1, Class E. The question arose as to how long the outbuilding had to be used for purposes that were purely “incidental to the enjoyment of the dwellinghouse as such” before the outbuilding could be used for other, i.e. primary, domestic purposes (such as extra sleeping accommodation).

Such a change of use is lawful by virtue of section 55(2)(f), provided the outbuilding is not used as a separate private dwelling (a notorious problem in some London boroughs). The point is that an outbuilding erected as PD under Part 1, Class E cannot immediately be used for primary domestic purposes, and the question then arises as to how long it must first be used for purpose that are purely ‘incidental’ - a much narrower category, at least for the purposes of Part 1, Class E, although apparently not in the case of section 55(2)(d) itself (!). This is where the ‘year and a day’ idea arose, although the analogy of the Kwik Save case suggests that whilst 2 months would clearly be insufficient, a period shorter than a whole year might possibly suffice. Unfortunately, the point has never been authoritatively resolved.

DannyP said...

I have read the above comments with interest. We received permitted development rights to convert a B1 office to 17 separate flats (C3). However, now we are in the building regs stage and the windows need to be upgraded. The council are now saying in response the the following question:

Would you confirm whether the replacement of the existing timber windows with upvc units would be covered under the permitted development?

They responded:

Flats do not benefit from permitted development to the same degree that dwelling houses do and as such I consider that planning permission would be required.

(Please note the property is on the edge of a conservation area albeit every other property has Upvc windows as does our property for some of the windows at the back)

We are not making any new window openings, only replacing the old windows with new Upvc ones.

Where do I stand with this. Shall I argue it out with the Council that we should be allowed to replace all the wooden windows with Upvc ones? (if so, on what basis).

I would appreciate any nudges in the right direction.

Anonymous said...

Hi Martin, thanks for this great blog.
I've recently applied for prior notification to change of use from offices B1 to dwelling house C3, a notice went up and no objections from neighbours. milton keynes council did not get back to me within the 56 days and an architect friend who guided me through it says that I may have further rights. I'm converting the Victorian workshop into a house for me to live in, which is situated right next door to the marital home and my 3 children. Its sad but at least the children will be able to flow freely between the two properties. I'd like to make a lovely home for me and kids for a couple of years stop gap until my wife and I start new relationships. So I have 2 questions. .. whilst I'm planning my development I want to install the plumbing and electrics so that I have the option of Turing it into 2 flats to provide me with enough income to rent elsewhere should I need to. Any planning issues there? And secondly I want to install a hearth and chimney or if restricted just a with flue, I live in Newport pagnell and we're allowed to burn fires here, also is like to add a juliette balcony to the front where originally a double door opening used to be that led out to metal steps, it's since been bricked up unsympathetically with modern bricks, I even wondered if I could make a balcony that I could step or sit out onto, the other thing I wanted to do was change the low pitch tin roof into a proper tiled roof which might mean changing the pitch a bit. Any issues there Martin? taking into consideration that they didn't respond within the 56 days(they verbally admitted that to me too)?
Kind Regards
Chris Parlor

Martin H Goodall LARTPI said...

I am sorry that I am somewhat behind in moderating comments at the moment. In answer to the question raised by DannyP on 27/01/14, it is true that flats do not benefit from permitted development rights. (In any event, PD rights do not arise in relation to a house until that house has been completed – they can’t be exercised while it is under construction.)

Secondly, the PD right under Part 3 for the conversion of offices (B1(a)) to residential use (C3) does not include any right to carry out alterations that would affect the external appearance of the building.

It is a matter of planning judgment as to whether or not the replacement of the windows would materially affect the external appearance of the building. If it would, then this will be development requiring planning permission.

Martin H Goodall LARTPI said...

My apologies for the delay in moderating the comment from Chris Parlor submitted on 28/01/14. Unfortunately, the details in this case are just a bit too complex to allow an answer in this forum. However, it is the sort of point on which Keystone Law’s planning law team would be happy to advise if we were to receive instructions in the matter. [At the time of writing, the original comment is shown on my ‘dashboard’ as having been published, but I can’t yet see it among the published comments under this item in the blog itself. I trust it will appear shortly.]

Anonymous said...

If the site in question does not have a planning permission for B1(a) use (a former Laundry long since ceased)used for the last 8 years as B1(a) offices (thus last used /used in May 2013 as offices, but with no permission or possibility of gaining a laful development certificate) do the PD rights apply?

Martin H Goodall LARTPI said...

PD rights apply if a building or use has become lawful, but not if it has yet not achieved lawfulness (under the 4-year rule or the 10-year rule, whichever is applicable). An LDC is not necessary to achieve lawfulness, which derives purely from the facts. Where the lawfulness of a use is in doubt or is disputed, then an LDC application may help to resolve the issue.

Anonymous said...

Martin,

I would like to add the thanks of others for this excellent blog. In terms of your search facility which you mention I had missed finding it initially as it is hidden behind your cookies question bar initially.

My question relating to this post is on amendments to B1(a) units. Under The Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2010: do offices not have the existing permitted development rights to make alterations to their exterior as long as it is not within 5 m of the curtailage? If so could windows etc not be altered whilst it is still an office including any new openings etc? Once this has been done could you then submit a prior notification with the building now ready for conversion?

Thank you again for this forum.

Rod Hague

Martin H Goodall LARTPI said...

I am sorry that I have previously overlooked replying to Rod Hague’s query of 15 November. Subject to compliance with the terms of Part 41, there would seem to be no reason why the limited works permitted by that Part of the Second Schedule to the GPDO should not be carried out, provided the building is still in use as an office. The permitted development would, however, need to be completed before an application for prior approval is then made in respect of the residential conversion of the building under Class J of Part 3.