Wednesday, 22 May 2013
Offices to residential – a further thought
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.
It is only when one re-reads certain statutory provisions, that the full implications become apparent and interpretational problems are revealed.
The possible implications of the stipulation in Class J of Part 3 of the Second Schedule to the GPDO (as now inserted by the recent amendment order) that the LPA should “have regard to the NPPF as if the application were a planning application” are worrying. One might read this phrase as though it is applicable only insofar as the NPPF is relevant to the consideration of transport and highways impacts, contamination risks and flooding risks, but I am not confident that such a narrow interpretation will necessarily be placed on the requirement to have regard to the NPPF.
So far as I am aware, there is (as yet) no indication or guidance from government as to the interpretation and application of these amendments to the GPDO, and so the position regarding the way in which these provisions will be applied in practice is not yet entirely clear. On the one hand, the condition at paragraph J.2 refers only to a determination by the local planning authority as to whether their prior approval will be required as to transport and highways impacts of the development, contamination risks on the site and flooding risks on the site, so on that basis it is arguable that the council is not entitled to take any other considerations into account. On the other hand, this same paragraph provides that the provisions of paragraph N shall apply in relation to any such application, and it is paragraph N that introduces the requirement that the LPA must “have regard to the NPPF as if the application were a planning application”.
There is certainly no requirement here to have regard to the development plan, so that on the face of it section 38(6) of the 2004 Act (which requires that where the development plan is required to be taken into account in the determination of any application under the planning legislation, the application must be determined in accordance with the development plan unless material considerations indicate otherwise) does not apply. However, the stipulation that the LPA must “have regard to the NPPF as if the application were a planning application” might be thought to bring very similar considerations into play. For example, paragraph 55 of the NPPF advises that in order to promote sustainable development in rural areas, housing should be located where it will enhance or maintain the vitality of rural communities. Local planning authorities should avoid new isolated homes in the countryside unless there are special circumstances such as the essential need for a rural worker to live permanently at or near their place of work in the countryside. It is also possible that the provisions of the NPPF regarding development in the Green Belt might be invoked. Paragraph 87 provides that, as with previous Green Belt policy [in PPG2], inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances. Paragraph 88 advises that when considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.
If such considerations were to be taken into account where a change of use from office to residential use is proposed in the open countryside and/or in the Green Belt, this would appear to defeat the whole object of this amendment to the GPDO in removing obstacles to development (at least for a three-year period). And yet there is a nagging suspicion that there has been some legislative sleight of hand here, which might possibly explain the absence of any reference in Class J to 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) which one might normally expect to see excluded from such provisions (as such areas have been from the provisions elsewhere in the amendment order relating to larger domestic extensions). I fear that this issue may become the subject of dispute, appeals and even litigation, and so we cannot be confident that the new permitted development right to change from office to residential use can be relied upon in a location that is in the open countryside and/or in the Green Belt.
I am aware that I am not the only planning professional who is worried by this seriously ambiguous drafting. Perhaps someone in De-CLoG should own up to what they intended by this particular piece of legislative nonsense.
© MARTIN H GOODALL
[The commments appended below are now out-of-date in view of subsequent legislative changes, and readers should refer to the book mentioned above for a comprehensive explanation of the current position.]