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.


[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.]


Evan Owen - Snowdonia said...

I feel an appeal coming with a new case in a national park, just to test all the interpretations and theories.

Ed Baker said...

Nonsense it is! Martin, I would still be interested in hearing your views on the comment I posted in relation to your original article on the subject, dated 19th May. My particular concern - and one I raised during the consultation process on the legislation - is that C3 uses might sprout up in highly environmentally unsuitable locations such as industrial estates. Our environmental health colleagues might have a field day with all the abatement notices they may need to serve!

Chris P said...

Perhaps that is also why there is a requirement to advertise the prior notification, which is a new requirement to me.

Martin H Goodall LARTPI said...

I did not respond to Ed Baker’s earlier comment because I felt he was absolutely right in what he wrote, and further comment from me would be superfluous. The problems Ed identifies could theoretically occur, but it seems to me that they are an unavoidable consequence of this rather gimcrack piece of subordinate legislation. In practice, however, I imagine very few people would seek to make the B1(a) to C3 change of use in an industrial estate, because it is unlikely to be commercially viable. Maybe this is why ministers ignored the point.

Ed Baker said...

Thanks Martin. It is of course a dangerous game for ministers to play to let the commercial market decide when and where development can go - this is one of the very reasons for the planning system itself. Desperate times lead to desperate measures, and I wouldn't rule out some people, who are desperate to access the housing market - particularly first time buyers who are finding it difficult or impossible to obtain a mortage - to decide that living on an industrial estate, or living close to commercial buildings, is better than nothing.

Anonymous said...

It won't remain an industrial estate for long if the dwellings sterilise the surrouding land uses!

Anonymous said...

I think the first consultation document on this proposal (i.e. before they decided to drop it and then did a u-turn) specifically referred to the market only bringing forward schemes where it was viable (i.e. where people would want to live).

In a previous life I worked for a mortgage lender. Even pre-crash we were loath to lend money on properties next to industrial or commercial premises. Given that mortgage lenders have become more risk averse since then I doubt many people would be able to get mortgages on homes in industrial estates.

What we'll end up with is existing owners changing the use of properties on the cheap and for rent. This means poor quality homes for those with little other choice.

We need more homes to be built but these need to be good quality.

Anonymous said...

We have received our first one of these and aside from other issues raised in the blog and the comments, we have drawn a blank with the fee. Anyone know what it might be?

Anonymous said...

Really interesting and useful blog Martin, thanks. Just a quick question, with the new changes in permitted development, at what point would the change of use occur? Would it be the moment prior approval is confirmed, or would it be when the use is implemented? If the latter, how far would someone have to go for the use to be implemented? For example, just placing a bed in an office surely does not count as implementation, but do you have any idea what would count? Thanks

Martin H Goodall LARTPI said...

I suggest that the answer to this latest query (regarding the time at which the change of use to residential can be said to be made, i.e. if a question arises as to whether it is implemented before or after 30 May 2016) is to apply the test established by Gravesham BC v. SSE [1983] JPL 307 by asking whether the building has, as a matter of fact and degree, been converted so as to be a building that ordinarily affords the facilities required for day-to-day private domestic existence. This would involve, I suggest, the provision of sleeping, cooking and washing facilities as a minimum. Just putting a bed in the office would not be sufficient.

The other point is that the permitted change of use is to use as a dwellinghouse, not to a mixed use as dwelling and office. Although it does not affect the position so far as the planning status of the building is concerned, it should also be borne in mind that this change of use must also comply with the Building Regulations.

Martin H Goodall LARTPI said...

One further point which should perhaps be made, although planning professionals are no doubt very much alive to this point, is that compliance with the prior notification procedure is an absolute requirement. Where prior notification (and then possibly also prior approval) is required, any development carried out before that prior notification is made (or, where required, before that prior approval is given) cannot be permitted development, even if it might otherwise qualify. Retrospective authorisation of such a development could only be achieved by a full planning permission. Late notification under the terms of the GPDO is simply not possible.

Martin H Goodall LARTPI said...

I omitted to respond to the query raised yesterday from a correspondent who said that they have drawn a blank with the fee, asking if anyone knows what it might be. The new rules refer to “any fee required to be paid”. Since there has, as yet, been no amendment to the fees regulations (so far as I am aware), it must be assumed that in the absence of any such amendment, no fee is currently payable. So applications will have to be processed free of charge, until or unless the government sees fit to introduce a fee for this type of application.

Anonymous said...

Hi can you please tell me, if a class b1 building has been empty for a while, but is still b1 can it be changed to c3 under the new legislation,? Thanks

Martin H Goodall LARTPI said...

The answer to this last query is “Yes”, but as I wrote in answer to a similar query on another thread, 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).

Anonymous said...

I have found this entry and the comments very interesting, particularly when read with the following entry – “Yet more GPDO amendments” (Sunday, 9 June 2013)

I am particularly interested in the comments that have been made about the stipulation in Class J of Part 3 of the Second Schedule to the GPDO that the LPA should ‘have regard to the NPPF as if the application were a planning application’ and whether this has any implications for S106 agreements for matters such as affordable housing, education and Open Space.

It seems that there has been a general acceptance that as the change of use would be permitted development, there would be no requirement to meet the policies within the development plan, or any other supplementary planning guidance. On this basis there does indeed appear to be no requirement for a Section 106 Obligation (although permitted change of use will still be liable to CIL).

However if the LPA are instructed to have regard to the whole of the NPPF then this states at numerous points that ‘Planning decisions must be taken in accordance with the development plan unless material considerations indicate otherwise’.

Martin, I note your earlier comments that this whole area will be a source of fruitful litigation for planning lawyers but I would be interested to know what your thoughts are on this particular point. Can you see that an argument that a LPA would be justified in requiring S106 contributions in accordance with their development plan, for say affordable housing, when assessing a prior notification application to convert a B1 Office to Residential? Would your view differ if a LPA was seeking a S106 agreement that was concerned with some works or improvement required to make the use acceptable in respect of highway safety?

Martin H Goodall LARTPI said...

This latest comment raises some extremely interesting questions that will no doubt be of concern to many planning professionals. Unfortunately, I don’t have an easy answer. The insertion in the GPDO amendment of a requirement that the LPA should “have regard to the NPPF as if the application were a planning application” has introduced a substantial element of uncertainty into the situation, and this is bound to be the source of considerable difficulty. No-one knows at the moment how far the implications of this requirement might reach. As my anonymous correspondent notes, and as I think I may have mentioned myself, importing the NPPF into the equation then brings in an implied requirement to have regard to the development plan, although this cannot have the legal effect of importing into the GPDO the statutory requirement contained in section 38(6) of the 2004 Act as such. And yet it could well be a material consideration.

I find it hard to believe that the reference to the NPPF could be used to justify a demand that the developer should enter into a planning obligation under section 106 (for example to secure affordable housing, where a number of residential units is proposed). On the other hand, if the traffic impact is such that some road improvements are required, then it is possible that the LPA might ask for a 106, or a corresponding agreement under the Highways Act.

There is a strong suspicion in my mind that what the government has done is to give with one hand while taking with the other. It seems to me that this permitted development right provides in effect a means of obtaining a form of planning permission by a slightly different (but hardly less demanding) procedure. Frankly, only practical experience, appeal decisions and possibly even one or two trips to the High Court, will resolve the uncertainties that arise from this particular piece of subordinate legislation.

This is yet another of the many examples of ‘reforms’ to the planning system which only succeeds in producing more complication and uncertainty for users of the planning system.

Chris P said...

Just received this from an LPA...Also taking into account the provisions of Class J – there is no restriction on what we can consider in terms of the National Planning Policy Framework reading paragraph 8(b). Taking aboard the issues raised in the pre-application it is likely that the prior notification will be refused as the provisions appears to allow for considerations of the National Planning Policy Framework. " The issue is lack of amenity space. It seems as though your concerns over the NPPF mention were not unfounded, but it does make a nonsense of the GPDO amendment.

Martin H Goodall LARTPI said...

I am grateful to Chris P for drawing attention to this decision. As he says, it is a problem I foresaw arising from the ambiguous drafting of the amendment order, but I am far from being convinced that the LPA is necessarily right about this. I shall be interested to see some appeal decisions (for which we may have to wait a few more months). Ultimately, I would not be at all surprised to see one or two cases go all the way to the High Court, if there is enough money riding on the proposed change of use.

Martin H Goodall LARTPI said...

I have received a comment from a correspondent drawing attention to a prior approval application for residential conversion of an office building in Croydon where the council have rejected the class J application on the basis that they cannot enter into a legal agreement to ensure that residents of the flats do not park on street. My correspondent was told by the planning officer that the head of planning in Croydon has instructed his officers to find every argument there is to reject class J applications. I am informed that the original draft officer report recommended approval. Here is the URL for the published delegated decision:

The stated reason for refusal is: “The proposal would not encourage a car free development within an area of excellent public transport links and would therefore not accord with sustainable transport objectives. The development would therefore be contrary to Policy SP8: Transport and Communication of the Croydon Local Plan – Strategic Policies.”

Arguably, this reason for refusal relates to the transport and highways impacts of the development, and so on the face of it would appear to come within the legitimate grounds on which such an application might be refused. Whether the refusal is in fact justified can only be determined if there is an appeal against this refusal. We shall see.

Chris P said...

I have now received the refusal outlined above and it is indeed on amenity grounds even though there is sufficient amenity. Interestingly I was persuaded by the LPA to submit a plan showing the proposed layout, against my better judgement as the amendment order does not, in my view call for that. Despite an accompanying statement pointing out that any operational development would be part of a later planning application, this plan has now been used against me, so I strongly urge applicants to only submit a plan showing no operational development

Anonymous said...

What is the chabge of use situation for a community building D1 use (old chapel later used by St John Ambulance for training and by locals for many purposes). Planning application now accepted (after three attempts and loss of appeal) to demolish and rebuild as a pottery and gallery with flat above in residential/conservation area? Would this need change to B1, is this possible in such an area and with kiln room 1 m from neighbours kitchen? Planning people do not seem to know or care.

Martin H Goodall LARTPI said...

If I have understood this question correctly, planning permission has now been given for the erection of a replacement building. The use of that building will be governed by section 75 of the 1990 Act, so that the new building can be used for the purpose stated in the permission, or if no purpose was stated then for the use for which it was designed.

At the outset, the new building can only be used for such purposes. Further changes of use in the future (after a reasonable period of use for the original purpose - possibly a year or longer) will depend on the Use Classes Order and/or Part 3 of the GPDO, subject to any relevant conditions attached to the planning permission.

Anonymous said...

If Prior Approval is obtained from an LPA for the conversion of an office building to residential (say for 20 flats), would this have to be implemented before a client can apply for a roof extension to the property to as a standalone application which does not take into account the residential which has been converted under the prior approval system?
Have you a view on what is required to implement the conversion of the whole building to residential? Does the conversion need to have provided ‘the facilities required for day-to-day private domestic existence’ for each of the potential 20 flats in accordance with the test established by Gravesham BC v. SSE [1983] JPL 307.

Martin H Goodall LARTPI said...

There is no permitted development right for a roof extension (or any other domestic extension or outbuilding) in the case of any flat or any building containing flats, such as this office conversion.

In any event, even in the case of a house or bungalow, permitted development rights under Part 1 could not arise until there is actually a single private dwellinghouse in existence. This means that the house must have been substantially completed (as per the House of Lords decision in Sage) before any extension or outbuilding can be added.

In the case in question, a new planning unit will be created in respect of each new dwelling that is formed. Where we are dealing (as in this case) with a change of use, as distinct from new build, then I agree that the relevant authority would be Gravesham rather than Sage, but as I have explained, this is entirely academic, because there will be no PD rights under Part 1 in this case.

Anonymous said...

I am a planning officer currently dealing with an application seeking prior approval in respect of a proposal to convert the upper floors of an unlisted building in the heart of the City Centre from offices to residential. In response to the consultation on the application, I have received objections from the owner and tenant of a licensed premises below the aplication premises on the grounds of noise impact on the amenities of the proposed residential properties and potential for complaints from residents to be made to Environmental Health and the possibilty of their businesses being closed down. The legal advice in how we progress determination of these prior notificatio applications is that we can only have regard to transport and highway impact and contamination and flood risks cannot factor in noise. I am a bit dubious about this as the legislation also appears to indicate that representations received need to be taken into account and regard had to the NPPf as if the application were a planning application. Does this not mean that noise can be looked at? If not, then it could potentially have huge consequences for existing businesses with vacant offices above as if statutory noise nuisance complaints are made to environmental health departments, this could lead the business/noisy activity being closed down if they were there first. This is not only unfair for the existing and in this case well established business but will not save work for local authorities as suggested by national government when they introduced this legislation as it will just shift work from one department to another. I would appreciate your views on whether you think noise can be considered in the assessment of this prior notification application or whether it is only the transport and highway impacts of the development and contamination and flood risks on site.

Martin H Goodall LARTPI said...

In answer to this most recent query, this planning officer has put his finger on a significant ambiguity in the drafting of the amendment order, which has been pointed out by a number of commentators, including myself.

My own view is that the intention of the order is that only the limited range of issues actually listed can be considered in determining the application, but the reference to the NPPF being taken into account as if this were a planning application introduces an element of doubt and uncertainty. I am inclined to the view that the reference to the NPPF is not intended to be as all-embracing as it might appear to be at first sight but should be read in the context of the three types of issue specifically referred to.

So I would plump for noise not being a material consideration that can be taken into account.

However, I believe that some authorities have already tried their luck by interpreting the order more widely, and have purported to refuse prior approval on various grounds outside the scope of the three identified issues.

Appeal decisions will soon tell us which way the Planning Inspectorate is inclined to view the wording of the order, but one or two trips to the High Court may then follow, as there are bound to be appeal decisions which will disappoint one party or the other sufficiently seriously to persuade them to launch proceedings under section 288.

Anonymous said...

A rather late comment on this blog but I hope that you will be able to pass some comment as I have query that may be of wider interest.

A rather juicy case has arrived on my desk recently for an office to resi (40 plus units) development. There are rather too many aspects of the case to raise here in their entirety but there are some technical points I would appreciate your views on which may be useful for others.

The application is actually for a certificate of lawfulness for the proposed use/development. This is on the basis that the LPA did not respond within the 56 day time limit.

Query 1 - what is the fee? The applicant has supplied £40.00, being half of a prior notification fee. However, the fee regulations state the fee as being 'half the amount that would be payable in respect of an application for planning permission to institute the use' (section 11 (3) (c)). Is there a case to be made that it should be based on the planning application fee instead? A prior approval application is not after all a planning application.

Query 2 - Class J requires that the use is commenced prior to 31 May 2016 in order to be pd. Is it therefore possible to issue a certificate for proposed development? Perhaps if the description were to include a section stating that all units would be in use (which for dwellings would mean substantially completed and habitable - I think) prior to that date it could work (scratches head)?

Many thanks for any time you could spend on this. I hope it doesn't get lost as I've added it to an old post.

Martin H Goodall LARTPI said...

In reply to the query raised on 27/06/14, I think the fee is £40. When I paid one LPA a fee for an LDC application (in very similar circumstances) based on the calculation mentioned by my correspondent, the LPA politely returned the balance on the basis that they only needed £40.

With regard to Query 2, I don’t see any reason why the LDC could not specify the proposed development and then add the words “subject to the use of the building falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order commencing no later than 30th May 2016”

Anonymous said...

A Prior Notification was submitted for the change of use of an office to 5 dwellings.

If the Council state that prior approval IS required, and then give their approval for the development, do they have the ability to impose conditions to the decision?

Many thanks

Martin H Goodall LARTPI said...

There was some doubt originally as to the ability of an LPA to impose conditions on a prior approval, but a subsequent amendment to the GPDO confirmed that an LPA does have the power to impose such conditions. The conditions would, of course, be subject to the ministerial advice formerly contained in Circular 11/95, but now to be found in the government’s online planning procedure guidance.