Sunday, 9 June 2013

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

22 comments:

PGH said...

How is this 'prior approval' procedure going to work in practice? The Court of Appeal decision in Murrell v SoS {2012 1 P & C R 6] has already confirmed that the fact that prior approval is required does not affect the principle of development, and that “the principle of whether the development should be permitted is not for consideration” in the prior approval procedure. But matters of transport and highways or flooding impacts could go to the heart of the issue as to whether development should go ahead at all. Following Murrell, presumably local planning authorities are only going to be able to mitigate any such impacts through the prior approval procedure; they are not going to be able to reject proposals completely as that would go against the principle established by Murrell that the GPDO permission is in effect an 'outline permission' and all that the LPA can do through the prior approval process is control the 'details'.

Martin H Goodall LARTPI said...

I am grateful to PGH for reminding me of the Court of Appeal decision in Murrell. I commented on the case in this blog on 13 December 2010, but confined myself to the procedural issue on which the case finally turned. However, I have refreshed my memory as to what Richards LJ said regarding the substantive issue, but on a very brief consideration of his words I am not sure that they can be applied to the current point in the same way as they were applied in the Part 6 case that was before the court on that occasion.

The court was clearly influenced in Murrell by Annex E to PPG7, but we are not dealing with quite the same type of prior approval regime in the present case. We have the problem, for example, of the NPPF having to be taken into account in respect of a proposal falling to be dealt with under the new provision “as if the application were a planning application” (as required by paragraph N). In fact, I am not sure that the analogy with an outline permission which the Court of Appeal clearly felt applied to Part 6, applies here. I fear that this is going to be yet another source of fruitful litigation for planning lawyers!

Evan Owen - Snowdonia said...

Don't fear it Martin, make hay while the sun shines!

The whole things looks like one of the mud pies my kids used to make, or is it a sand castle with the tide coming in? Whatever it is the end result is more confusion of us simple folk.

Richard White said...

Re fees - see:-
http://www.legislation.gov.uk/ukdsi/2013/9780111539293/contents

In the meantime it's free.

Martin H Goodall LARTPI said...

Thanks, Richard. I had been looking for this draft SI, but failed to find it the last time I looked. 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...

In addition to my email yesterday, I would be grateful for your view as to whether or not a proposal to convert the upper two floors of an office building from B1(a) to residential while retaining the ground floor in business use would be classed as permitted development (subject to the prior approval procedure) under Class J.

Also when fees are applicable, does that mean a larger office building could be converted into say 20 appartments all for the bargin price of £80?

Martin H Goodall LARTPI said...

I cannot answer this question definitively without taking full instructions. However, it appears to me that in principle what is suggested might be possible.

So far as creating, say, 20 apartments is concerned, I have come round to the view that this might also be possible in principle, but each apartment so created would be a separate development and so a separate notice/application would be required for each residential unit to be created.

So for a 20-unit conversion, 20 applications would be required and the fee would be 20 x £80 = £1,600, BUT ONLY IF THE APPLICATION IS MADE ON OR AFTER 1 OCTOBER 2013. Until the end of September it is absolutely free of charge.

passerby said...

On Anonymous's question (21/06/2013), I appreciate that logic and planning policy rarely make comfortable bedfellows but as I understand it, blocks of flats have been and remain exempt from GPDO. So upon submission of the first notice (or perhaps the first two notices), it seems illogical that any further notice could be submitted under GPDO!

Martin H Goodall LARTPI said...

It is true that the definition of a dwellinghouse in Article 1(2) of the GPDO excludes a building containing one or more flats (and also a flat contained within such a building). This excludes the PD rights that would otherwise apply under Part 1, but the PD right with which we are concerned here (under Part 3, Class J) applies to a building used as an office within Use Class B1(a), so the exclusion of a building containing a flat or flats from the definition of “dwellinghouse” is not relevant in this context.

Furthermore, the definition of a “building” in Article 1(2) includes any part of a building, so the part which is still in office use (even if one or more other parts of the building has or have already been converted to residential units) still enjoys the PD right granted by Part 3, Class J, enabling further residential units to be created. It was this that led me to the conclusion that an office building could be divided into a number of residential units, but only if each such conversion is the subject of a separate prior approval application.

Dave Simpson said...

Wiltshire Council require a prior notification before they will accept any changes of use under class M. In my case: existing agricultural buildings. They let you know if you qualify for the fee of £80.

Tim727 said...

Is there any minimum size for conversion. Can a very small office be converted to small deweling house eg studio
I think yes, the only constraint is building regs.
Any thoughts or commens?

Martin H Goodall LARTPI said...

I agree that there would appear to be no minimum size of unit that can be converted from office to residential, subject to compliance with the Building Regs. Subject to this, it seems to me that it would be a matter for the judgment of the developer as to whether or not the proposed conversion would be feasible.

Anonymous said...

Beware permitted development for shop, to have residential above, it is still counted as one unit and will not have the same rights, I have a shop and converted upper parts to a flat and in the rear had a garden for the flat, I put in a large Shed and was told I needed planning permission as it did not have the same rights as a residential property and was still commercial, has anyone else had this problem or are the Council pulling a fast one for more fees?

Martin H Goodall LARTPI said...

The change of use to which the comment above refers has been in the GPDO for some years. The resulting use (comprising a shop and a single flat) is a mixed use and therefore, by definition, is a sui generis use. It follows that the PD rights in Part 1 that would apply to a single private dwellinghouse do not apply in this case. So a shed in the garden does require planning permission. The Council was certainly not ‘pulling a fast one’ – they were absolutely correct in requiring a planning application.

Anonymous said...

If a prior approval is given for a large office block to change its use from offices (under Part 3, Class J) to residential,but the development is going to take place in a phased format, such that half the offices will be flats before 30th May 2016, but half will not. Do you think this will be sufficient to adhere to the requirements that the "building" is in use as Class C3 (dwelling) before 30 May 2016?

Martin H Goodall LARTPI said...

Each dwelling created in this way will be a separate planning unit, created by a separate change of use in each case, and it is clear from the legislation that the development (i.e. the change of use) must be completed by 30 May 2016. Unless this permitted development right is extended beyond 30 May 2016 (and that may very well depend on precisely who is in power after May 2015), it appears to me that it will not be possible to change the use of any remaining office space in the building not converted before the deadline.

Interested Farmer said...

Is there anything in the amendment to stop buildings that have been recently extended under Part 6 GPDO entitlement from changing use to one of the flexible uses? I have such a building, but I am worried that if I change to one of the new flexible uses I will fall foul of the Part 6 condition that the extended part of the building must be removed if it ceases to be used for agriculture.

Martin H Goodall LARTPI said...

Interested Farmer’s question requires more time and care in answering it than I can spare in dealing with a comment. 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.

ricadia said...

If an agricultural building is changed to B8 use under the GPDO then do the PD rights enjoyed by industrial buildings to extend and erect additional B8 space apply?

Martin H Goodall LARTPI said...

In answer to Ricadia (25/02/14), for the purposes of both the Use Classes Order and the GPDO, after a site has changed use under Part 3, Class M it is to be treated as having a sui generis use. As I read the Order, this means that there are no permitted development rights in this case. (The sole exception to this rule applies where the use of the building has been changed to an office use within Use Class B1(a), when the PD rights granted by Part 41, Class B will apply.)

Anonymous said...

You said:

"[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.]"

Did this turn out to be the case?

Martin H Goodall LARTPI said...

Class M comprises the change of use of an agricultural building to a ‘flexible’ use (as specified in the 2013 amendment to the GPDO). Paragraph M1 provides that development is not permitted by Class M if the building has not been solely in agricultural use since 3rd July 2012 (or, for buildings first brought into use after 3rd July 2012, for ten years).

As I read it, this means that the agricultural building must have been in agricultural use throughout this period, and must therefore remain in agricultural use at the time that the change of use is made.

I am not aware of any appeal decisions where a different view has been taken, although I can see that a period of complete non-use commencing some time after July 2012 might arguably be counted, although I remain doubtful. In most cases, the agricultural use may well have been replaced by some other use, for example some sort of storage or use for various domestic purposes, which would clearly disqualify it from the change of use permitted by Class M.

Different rules apply to the other changes of use permitted by Classes MA and MB (introduced by the 2014 amendment to the GPDO).