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.


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.


Jeremy Ebdon said...


I posted the following question on the Planning (magazine) website, although the article (on which you commented - first example of B1 to C3)) has now dropped off the bottom of the page so I don't expect many replies. I wondered if you had any thoughts?

Like many LPAs, we have several European protected sites in our patch. We are currently using a Joint Interim Agreement that has been devised with several neighouring LPAs and agreed by Natural England which in a simple form requires a set financial contribution per dwelling/unit if it falls within 10km of the protected areas. I this way, the impacts (individually and cumulatively) of the development are mitigated (money pays for different projects in mitigation, including SANGS) and we are able to consent development in line with the Habitat Regulations.

I know of at least one large vacant office block not more than 200m from the protected areas that could fit maybe up to 40 flats depending on how you carved it up. That's just one building, there are plenty of others.

So as we all know the decision making body (usually LPA) cannot legally grant consent for development if it would on its own, or in combination with other developments, be likely to have a significant effect on the protected habitats (Habitat Regulations). I understand the mechanics of the GPDO such that permission has already been granted by the government for the developments contained therein, subject to the conditions specified.

So, is Class J in contravention of the Habitat Regulations in these situations? Or do LPAs have to secure mitigation? In 56 days? Or does some responsibility lie with the developer?

I have pondered whether Class J may not apply where a development is EIA development. However I can't think of many situations where this would be likely as the bar for having a 'significant effect on the environment' seems to be set so much higher under the EIA regulations as opposed to the test as to whether under the Habitat Regulations there is likely to be a significant effect either on a development's own merits or in combination.

Thinking on this post in particular, does the LPA have some responsibility then to serve an Article 4 direction in the relevant areas (where an effect on protected sites is likely)?

Thanks for any insights.

Martin H Goodall LARTPI said...

It is perfectly clear that if a development requires an EIA, this prevents its being permitted development, and a planning application must be made, accompanied by the EIA. This would apply to all types of permitted development in the second schedule to the GPDO, including those in the newly amended Part 3 (such as Class J).

As Jeremy says, there are likely to be very few developments under Part 3, Class J that would give rise to a need for an EIA, and so this is going to be a very rare situation. If there is a real possibility of an EIA being required, a wise developer should perhaps seek a screening opinion from the LPA for the proposed development, before any form of development application is submitted. If it becomes clear that an EIA is required, then the developer will know that they will have to make a planning application. However, if the LPA determines that no EIA is required, then the developer can safely proceed with a prior approval application under the GPDO.

I don’t think there is any need or justification for an Article 4 Direction in this sort of case; the existing rules provide the necessary environmental protection of designated areas. If you think about it, an Article 4 Direction would just be useless duplication in circumstances in which (if an EIA is required) a full planning application would be required in any event.

Jeremy Ebdon said...

Thanks for responding so soon Martin.

Although I've mentioned EIA (which we both seem clear on) my query really is based more on the implications of Class J in relation the Habitat Regulations.

Development that, on its own or cumulatively, is likely to have a significant effect on the protected areas gets caught. This can include just one dwelling and therefore the threshold seems to be set much lower than EIA matters.

Surely Class J development in close proximity to European protected sites is illegal?

Martin H Goodall LARTPI said...

I am sory if I missed the point of Jeremy's original question. The answer to the point Jeremy raises is to be found in paragraphs 42 to 50 of Circular 06/2005. This is too lengthy to summarise here. Permitted development is not precluded, but an appropriate assessment may be required under the Conservation (Natural Habitats, &c.) Regulations 1994 as part of the prior notification procedure. There is a useful flowchart in the circular (Figure 2) that shows the steps that need to be taken.

Nick Taylor said...

You may be interested in the attache decision by Elmbridge Borough Council in relation to an application for Prior Approval on an office building in Weybridge (ref: 2013/2323). The decision was made under delegated powers and the officer addresses the questions of prior approval was needed (it was) and the application of Part N re the NPPF.

Martin H Goodall LARTPI said...

To save readers having to copy and paste the link and then enter the application number, the application was refused on the grounds that “The proposed change of use from B1(a) office use to C3 residential use has previously been undertaken with the occupation of the majority of the residential units. On this basis, prior approval under Class J is refused.”

I don’t know the facts of this case, but if development in respect of which a prior notification or prior approval application is required is carried out before the notification or application is received by the LPA, it cannot be permitted development. There can be no retrospective approval under this procedure of development that has already been carried out, even if it would otherwise have been PD. A full planning application would be the only way of sorting it out.