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