B1(a) to C3 – an early example

NOTE: For completely up-to-date and fully comprehensive coverage of the changes of use that are now authorised by the GPDO, and the way in which these are (or should be) handled by Local Planning Authorities, 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.

I happened to spot the following item among pending planning applications in Bristol the other day:

Prior approval for the change of use from detached three storey building currently as 3 separate self contained office units on lower, ground and first floors from office space within Use Class B1(a) to two-bedroom apartment on lower ground floor, and 2-bed apartment on ground floor of residential accommodation falling within Class C3 (dwellinghouses)

The application was put in the post on 10 June, was received by the LPA on 13 June and registered by them on the 14th, so congratulations to both the applicant and the LPA for being so quick off the mark on this one. No application form was available, so the applicant simply wrote a letter setting out the required information and enclosing the necessary plans. This is all that is required, so the LPA quite rightly treated it as a valid application and immediately registered it.

The application does not fit neatly into the new scheme – it is not a one-for-one change of use, so it will be interesting to see how the LPA deals with it; but (knowing the site myself) I would be a bit surprised if anyone objects.

Multiple conversions to form a group of apartments, or a block of flats, might be more problematic, so other cases may be less straightforward than this one seems to be. There could in fact be quite a rush of these applications over the next three months, especially where multiple conversions are involved, in view of the introduction of the £80 application fee on 1st October.
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UPDATE (4.7.13): News is reaching me of various applications for change of use from offices to residential use that have been made over the past month to a number of different LPAs around the country. One eager and very efficient developer even managed to get their application in on 31st May! So we should begin to learn within the next few weeks how a range of different councils are handling these applications. The 56-day period will expire on the very earliest application on 26 July, and the others in the pipeline will fall due during August. It looks as though there will then be an increasing number of others following these in the months to come. There will be no prize for the first LPA that lets one of these applications through by default by failing to determine it within the time limit.

© MARTIN H GOODALL

New forms on the Planning Portal

Although no forms are prescribed for the new prior notification procedures under the recent amendments to the General Permitted Development Order, the Planning Portal has helpfully published a simple notice for prior approval of a Change of Use from Business to Residential (in England only, of course). It is based on the requirements set out in the GPDO amendment order, so presumably contains none of the nonsense that might be included in some LPAs’ home-made forms. No guidance notes are included with the form, which is hardly surprising in view of the utter confusion over how this particular prior notification procedure will work in practice! Further prior approval forms are being prepared for future publication on the Planning Portal.

© MARTIN H GOODALL

A window of opportunity

I drew attention in a post published earlier this evening to the additional material contained in comments added to items posted on this blog, especially those added to posts on the recent amendments to the General Permitted Development Order.

One of the points that has been confirmed in these comments is that THERE IS NO CHARGE for making a prior notification application under the new GPDO amendments (at least not yet). So those authorities that are purporting to charge a fee are exceeding their powers (Richmond LBC and the Royal Borough of Windsor & Maidenhead, for example, who are asking for a fee of £80.00). Apparently Camden LBC have recently sent out an 'application form' demanding a fee of £192.50 for each new residential unit created!

It is true that Paragraph N(2) in the amendment order provides that : “The application shall be accompanied by — ..... [specified items] ...... together with any fee required to be paid”. As matters stand at the moment, 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 for the time being, 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?!)

It was clearly intended that a fee would be introduced, and a draft SI has recently been published, in the form of The Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2013. This will introduce a flat fee of £80, but this amendment will not come into effect until 1 October 2013. So if you get your application in before 1st October, you don’t have to pay a penny! 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 but, for whatever reason, there is another three months within which any number of these prior notification applications can be made entirely free of charge.

Meanwhile, if any 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!

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.

© MARTIN H GOODALL

Oliver Goodwin joins Keystone Law

Although (as I have explained before) this blog is not intended to be a corporate or personal marketing tool, I am very pleased to be able to tell you that another leading planning lawyer, Oliver Goodwin, has recently joined KEYSTONE LAW.

Oliver is a Barrister, who was previously with Squire Sanders, and has more than 25 years’ experience as a specialist planning lawyer. He has been given favourable mentions in Chambers’ Directory, where clients described him as "highly experienced and good to work with."

Our planning law team is very pleased to welcome Oliver on board, and we shall continue to develop our team-based approach to planning-related work for a wide variety of new and existing clients.

© MARTIN H GOODALL

David Brock retires

After a long and distinguished legal career, David Brock retired from practice at the and of May. As readers of this blog will be aware, before joining Keystone Law’s planning law team, David headed up the planning law team of Mills and Reeve in East Anglia. He was Chair of the Law Society’s Planning and Environment Law Committee, and made some significant contributions to the committee’s work on behalf of the legal profession in the planning field. David was largely responsible for the standard draft section 106 agreement jointly published by the Law Society and De-CLoG, and he was instrumental in getting important changes made to the Bill that became the Localism Act 2011, in particular to modify the effect of the catch-all powers that were originally proposed in respect of ‘concealed’ development.

David certainly won’t be twiddling his thumbs in retirement; he has some very interesting projects in hand, and he will continue to write his blog. I shall be happy to maintain the link to that blog here, and so you will continue to be able to access David’s blog from my Home page by clicking on the link in the left-hand margin.

© MARTIN H GOODALL

Take a look at the comments

Comments contributed by readers, and responses to those comments that I have then added myself, have produced considerable additional material on some of the topics discussed in this blog. This particularly applies to the recent changes to the General Permitted Development Order covered in several recent posts. Some earlier topics (such as ‘curtilage’ in its various iterations) have attracted an equally large number of questions and comments.

Comments are a more convenient way of updating material or incorporating corrections or revisions suggested by readers, than by editing or updating the main text, and so the comments are well worth checking to see if there are any modifications or additions to the originally published material.

You can access these comments in one of two ways. If you read a post on the Home page, there is a small “Comments” link below each posted item that opens a separate box in which the comments are displayed. On the other hand, if you click on the title of a particular post, you will see that post displayed by itself on the page, together with all the comments on that item appended below it. This is a slightly more reader-friendly way of displaying the comments than the pop-up comments box that appears when you click on “Comments” on the Home page.

In either case, there is a facility for adding a further comment. As I have explained before, all comments are subject to moderation before publication, and this can sometimes lead to a delay of a day or two before a particular comment appears. I try to publish as many comments as possible, although a few don’t quite fit for one reason or another and may not be published. I certainly don’t censor views with which I don’t agree, but may add my own response to any comments which appear to me to be open to question or which call for further discussion.

© MARTIN H GOODALL

Yet more GPDO amendments

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.

We have not yet covered more than a small part of the amendments to the General Permitted Development Order that came into effect on 30 May.

I will leave aside for the time being those amendments that relate specifically to schools, and will concentrate in this post on the amendments affecting agricultural buildings and various business premises.

Dealing first with changes if use, there is a minor amendment to Part 3 (Class B) of the Second Schedule to the GPDO that increases from 235 square metres to 500 square metres the amount of floor space that can be changed from either Use Class B1 (business use – offices, light industrial, etc.) or B2 (general industrial use) to use within Class B8 (storage use or as a distribution centre), and from either B2 or B8 use to use within Class B1. Unlike some of the other amendments to the GPDO made last month, this one applies permanently.

The amendment to Part 3 that has raised the greatest amount of interest relates to agricultural buildings. The new Class M allows the change of use of existing agricultural buildings (i.e. a building or buildings actually used for agriculture where this is for the purposes of a trade or business, but excluding any dwellinghouse) to a ‘flexible’ use within Use Classes A1 (shops), A2 (financial and professional services), A3 (restaurants and cafes) [but not A4 or A5], B1 (business), B8 (storage or distribution), C1 (hotels) or D2 (assembly and leisure).

This change of use cannot be made if the agricultural building is a listed building or a scheduled ancient monument. In order to qualify, the building must have been solely in agricultural use since 3 July 2012 or, where the building was first brought into use after 3 July 2012, it must have been solely in agricultural use for ten years before this change of use can be made. [It appears that the building must currently be in agricultural use; it is my understanding that if the building is a redundant agricultural building that has ceased to be used for the purposes of agriculture, the change of use under Class M is not permitted development.] The cumulative floor space of buildings within an original agricultural unit whose use can be changed under Class M cannot exceed 500 square metres in total. The site must not be or form part of a military explosives storage area or be or form part of a safety hazard area ( - see a previous blog post in this series for an explanation of those terms).

The flexibility referred to in the permitted change of use allows subsequent changes of use to another use falling within one of the use classes comprising this permitted flexible use (subject to the conditions discussed below) and, for the purposes of both the Use Classes Order and the GPDO, after a site has changed use under Class M it is to be treated as having a sui generis use, so this precludes any other change of use that might otherwise have been permitted development outside the use classes specified in this permitted flexible use.

After a site has changed use under Class M, the planning permissions granted by Part 41, Class B of Schedule 2 to the GPDO apply to the building, subject to the word “curtilage” in that provision having the meaning given in Class M [*below], and any reference to “office building” is to be read as a reference to the building which has changed use under Class M. As I read this provision, the right to extend the building is not confined to a former agricultural building whose use has been changed for the time being to a purpose within Class B1(a) of the UCO, but applies in any event, whatever the use of the building, provided it is within the use classes covered by the flexible use permitted by Class M.

[* “Curtilage” means, for the purposes of Class M only, the piece of land, whether enclosed or unenclosed, immediately beside or around the agricultural building, closely associated with and serving the purposes of the agricultural building or, where it is not possible to discern such a piece of land, an area of land immediately beside or around the agricultural building no larger than the floor space of the building.]

The conditions set out in paragraph M.3 apply both to an original change of use under Class M and to any subsequent change of use within the use classes covered by the flexible use permitted by Class M.

Where the cumulative floor space of the building or buildings which have changed use under Class M within an original agricultural unit does not exceed 150 square metres, the developer must notify the local planning authority of the date the site will begin to be used for any of the flexible uses, the nature of the use or uses and a plan indicating the site and which buildings have changed use. However, a change of use within the 150 metre cumulative limit is not subject to prior approval by the LPA; they simply have to be informed, and the change of use can then be made.

Where the cumulative floor space exceeds 150 square metres, 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 transport and highways impacts of the development, noise impacts of the development, contamination risks on the site, and flooding risks on the site, and the provisions of paragraph N will apply in relation to any such application. This was discussed in a previous post in this blog in relation to change of use from office to residential use, and the interpretational problems identified there could also affect changes of use under Class M.

In addition to this amendment to Part 3, the amendment order also introduces an amendment to Part 4 in relation to the temporary use of various commercial premises. This is a new Class D, which allows a change of use of a building whose use falls within Class A1 (shops), A2 (financial and professional services), A3 (restaurants and cafes), A4 (drinking establishments), Class A5 (hot food takeaways), B1 (business), D1 (non-residential institutions) or D2 (assembly and leisure) to a flexible use falling within Class A1 (shops), Class A2 (financial and professional services), Class A3 (restaurants and cafes) [but not Classes A4 or A5] or Class B1 (business) for a single continuous period of up to two years beginning on the date the building and any land within its curtilage begins to be used for one of the flexible uses.

This permitted development is limited to no more than 150 square metres of floor space in the building and does not apply if the site has at any time in the past already relied upon the permission granted by Class D. As in other cases, this change of use cannot be made if the building is a listed building or a scheduled ancient monument and the site must not be or form part of a military explosives storage area or be or form part of a safety hazard area.

The permitted development under Class D is subject to a number of conditions. The developer must notify the local planning authority of the date the site will begin to be used for one of the flexible uses, and what that use will be, before the use begins, and at any given time during the two-year period referred to in paragraph D the site can be used at any one time only for one of the use classes comprising the flexible use, but the site may at any time during the two-year period change use to a use falling within one of the other use classes comprising the flexible use, subject to further notification to the LPA. However, no prior approval is required.

For the purposes of the Use Classes Order and the GPDO, during the period of flexible use the site will retain the use class it had before changing to any of the flexible uses under Class D, and the site must revert to its previous lawful use at the end of the period of flexible use.

I was going to deal next with the additional operational development allowed by this recent amendment of the GPDO (under Parts 8, 41 and 42 of the Second Schedule), but I have run out of time, and this will have to await a future post.

© MARTIN H GOODALL

Prior notification process rolled out

A correspondent contacted me yesterday to tell me that he had been in touch with Liverpool City Council to ask about the new PD rights for larger domestic extensions, which have now come into effect. The officer with whom he spoke was extremely helpful and was clearly up to speed on the new procedures. He explained that it would only be necessary to send in a simple plan, a description of the works and the addresses of surrounding neighbours. On the other hand, it appears that Liverpool (and maybe other councils) could be tempted to refuse a prior notification application outright if any neighbours object. The tight 42-day deadline might give LPAs little alternative in many cases. Summary dismissal of prior notification applications in these circumstances might seem somewhat high-handed and arguably unlawful, but the available remedies (an appeal, with the possibility of an award of costs, or a full application) would preclude any other legal challenge, although I suppose there might possibly be scope for a complaint of maladministration so far as the wasted expense of the prior approval application itself is concerned.

There does seem to be some confusion in this authority as to the detail to be shown on or omitted from the submitted plan, but the planning officer very sensibly observed that the more details that are provided, the less likely a neighbour is to object, as they will know where windows and doors are, etc. This chimes in with my view that the more information you give your neighbours beforehand, the better the chance of avoiding an unwanted objection. The obvious advice must be – Don’t take your neighbours by surprise.

Liverpool have helpfully provide a very well written guide to the new rules, and also an application form, which although it is not mandatory (as the planning officer was at pains to point out) is recommended in order to help submissions. This all seems eminently sensible, and Liverpool City Council is to be congratulated on this very user-friendly approach, which must have been developed by the council’s officers at quite short notice. It is a refreshing change, when one so often comes across unhelpful and downright incompetent officers in too many other authorities around the country.

My correspondent did query one point, having been told by the planning officer that the materials used in the extension must match the materials used in the construction of the original house. In fact, the officer was absolutely correct in making this point. Paragraph A.3 in Part 1 of the Second Schedule to the GPDO (as revised in October 2008), which applies to all domestic extensions, not just those previously authorised by the GPDO, provides in Condition (a) that the materials used in any exterior work (other than materials used in the construction of a conservatory) must be of a similar appearance to those used in the construction of the exterior of the existing house.

After hearing of Liverpool’s commendable initiative, I learnt that the Planning Portal will shortly be publishing a ‘Notification of a proposed larger home extension’ to support the new permitted development regime. This will be available for download from the Planning Portal. What is proposed is a simple downloadable PDF designed to gather the information required by the new rules, with links to the LPA finder on the Portal and their ‘Buy A Map’ service to help with the provision of the requisite site plan. This may be followed by something a bit more sophisticated later.

© MARTIN H GOODALL