Monday, 8 July 2013
Avoiding changes of use from B1(a) to C3
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.
It has been reported that Brighton & Hove wish to prevent changes of use from Class B1(a) to C3 within their area by means of an Article 4 Direction. They were one of the authorities that applied unsuccessfully to be exempted from the provisions of the amended GPDO before these changes were made.
A news report states that the council “are to consider applying for an Article 4 direction from the Department for Communities and Local Government so that some areas of the city are exempt from the policy.” Strictly speaking, an LPA does not in fact need to apply to De-CLoG for an Article 4 Direction; they have the power to make the Direction themselves. Even if there are objections to the Direction, there is no longer a requirement for the Direction to be confirmed by the Secretary of State, although the LPA must properly consider any objections before confirming the Direction.
What the writer of the news story may have had in mind is that under the Town & Country Planning (General Permitted Development) (Amendment) (England) Order 2010 (SI 2010 No.654) LPAs are obliged to give notice of Article 4 directions to De-CLoG, and cannot confirm them for 28 days or such longer period as the Secretary of State may specify following notice of the draft Article 4 direction having been received by De-CLoG from the LPA.
The Secretary of State has power under Art. 5(13) to make a direction cancelling or modifying an Article 4 Direction at any time before or after its confirmation by the LPA, although Art 6(3) prevents the S of S from using this power in respect of certain classes of PD in a conservation area. Art 6(4) also prevents the S of S from modifying (but not from cancelling) an Article 4 direction which relates to a listed building (if it does not relate to land of any other description).
It may be the requirement to give notice of the Article 4 Direction to De-CLoG, coupled with the power that Uncle Eric has to make a direction cancelling or modifying an Article 4 Direction, that has led Brighton & Hove to decide that they need to go cap-in-hand to De-CLoG to beg them not to cancel an Article 4 Direction if they make one.
So, as I pointed out in a post some months ago (long before the amendments to the GPDO were finally made), Uncle Eric does have the whip hand in such matters, and can promptly overrule any Article 4 directions which seek to remove the extended PD rights he has so recently created. When these changes were first mooted last year I predicted a sort of ministerial ping-pong match, with Uncle Eric lobbing the ball back over the net every time an LPA makes an Article 4 direction in an attempt to remove the extended PD rights. But do De-CLoG ministers really want a series of stand-up fights with LPAs over this? I suspect that saner counsels may in fact prevail, and there may be some sort of negotiated settlement which would allow Brighton & Hove and other LPAs to make Article 4 Directions that exclude the permitted development right to change from a use within Class B1(a) to C3 in some parts of their area, or which modify this PD right in some other way that would exclude certain types of building or particular types of conversion.
Brighton & Hove are due to take a decision on 11 July on how to take this proposal forward, and it will be interesting to see how this develops. Other LPAs will no doubt be following this matter with considerable interest.
© MARTIN H GOODALL
UPDATE (12 July) : Brighton and Hove are going ahead with their Article 4 Direction, and it seems that a number of other councils are now proposing to make these directions. It will be interesting to see whether Uncle Eric or the boy Boles use their ministerial powers to block these directions. Meanwhile Islington LBC is contemplating a legal challenge to the GPDO amendment order by way of judicial review, based on the way the consultation process was carried out prior to the government's decision as to whether particular authorities should be exempted from the order. Other councils could join in if these proceedings get off the ground.