Monday, 29 July 2013

B1 to C3 dispute hots up

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.

It seems that the number of applications already made for prior approval of change of use from office to residential use has significantly exceeded even the government’s expectations, and some local planning authorities have been seriously spooked by the potential ‘loss’ of office floorspace (although whether their concerns are objectively justified is perhaps open to question).

No doubt in response to this, several authorities have now made or are seriously thinking of making Article 4 Directions, but it remains to be seen whether De-CLoG ministers will use their powers to block these directions.

Meanwhile, Islington LBC, jointly with Richmond LBC, applied to the High Court on Thursday of last week for permission to bring a claim for Judicial Review of the GPDO amendments. Subordinate legislation can be challenged in this way, although the two authorities will need to persuade the Court that the amending order was significantly tainted with illegality. I have not seen the grounds, but I assume that they are based primarily on the adequacy of the consultation carried out by De-CLoG before going ahead with the amendment order, and the rejection of many authorities’ applications for exemption.

I did express misgivings at the time about the apparently peremptory dismissal of the vast majority of the applications for exemptions. There is no doubt scope for argument over whether ministers took into account all material considerations or, in light of the grounds on which LPAs were seeking exemption, as to whether the decision to dismiss these applications was Wednesbury unreasonable. The whole way the government went about this process (giving LPAs only a fortnight to seek exemption from subordinate legislation that had not even been drafted at that time) was unorthodox, to say the least, and I predicted that one or more applications for Judicial Review might well result from this.

The timing is interesting. The cause of action arose before 1 July, so the new six-week time limit does not apply to this JR application. On the other hand, by the time the JR application was issued in the High Court, 11 weeks had elapsed since the amending order was made on 9 May. So it seems to me that the two LPAs may be at some risk of being told that they have not applied promptly, as required by the Civil Procedure Rules (both before and after the recent rule changes relating to JR). It is certainly a point I would take if I were acting for De-CLoG.

It is impossible to say what the outcome of this litigation might be but, in the meantime, the amending order remains in full force and effect, and LPAs (including those who are challenging this legislation in the High Court) have no choice but to continue processing prior approval applications, in default of which the right to make the change of use from B1(a) to C3 will become automatic 56 days after the application is received by the LPA.

UPDATE (19 August): Lambeth LBC are now joining in the party. Their bid to apply for judicial review would appear to have been made at least 14 weeks after the cause of action first arose (with the making of the GPDO amendment order on 9 May). I rather doubt whether it could be argued that time only started to run from the date when the order came into effect (30 May) (on the theoretical, but highly improbable, basis presumably that parliament might not have approved the order), but that would still be 11 weeks prior to Lambeth’s application being submitted to the High Court. The old 12-week long-stop date applies to these proceedings, but the issue of ‘promptness’ would still have to be taken into account. It will be interesting to see how the High Court deals with the time issue in these proceedings, bearing in mind the reliance that has been placed on the new legislation in the meantime by numerous applicants for prior approval of office to residential conversions.



Evan Owen - Snowdonia said...

What do you do when the council says it doesn't consider that your case fits the bill?

Police house had a change of use to "offices for police station", the police station was adjacent but was abandoned for over a decade, now owner wants to return to use as dwelling but council insists that use was sui generis so a full application or a certificate of lawful use is required.

Such is life.

Martin H Goodall LARTPI said...

I have always taken the view that it is a matter of objective fact as to how a particular use or development is categorised. It is not a matter for the decision of the LPA. Either the use of the former police house as “offices for police station” came within Use Class B1(a) or it did not. (If it was an office regularly visited by members of the public, it might have come within Use Class A2 instead.)

There is also the question as to whether its use was ancillary to the use of a larger planning unit of which it formed a part, in which case it would probably not qualify as a B1(a) use. However, bear in mind the House of Lords decision in Westminster City Council -v- British Waterways Board Board [1984] 3 All ER 737 that to be an ancillary use, the secondary or subsidiary use in question must be carried on in the same planning unit as the primary use. A use on one planning unit cannot be ancillary to an activity carried on in a different planning unit. If the former police house was not in the same planning unit as the police station, its use cannot have been ancillary to the police station use.

If separate from the police station (both physically and functionally separate, as per Burdle) the former police house, used as “offices for police station”, may have constituted a separate planning unit within Use Class B1(a). If this does in fact prove to be the case, and the LPA have failed to give a decision on a prior approval application within 56 days (whatever their purported reason for not dealing with it), the permitted right to change of use then takes effect automatically. It is sufficient that an application complying with the requirements of the GPDO has been received by the LPA.

Of course, if the intended development (in this case change of use from B1(a) to C3) is not permitted development in any event (e.g. in this case, because it was not actually used or last used before 30 May 2013 as an office within Class B1(a) ), then making a prior approval application cannot make it permitted development. The LPA is, nevertheless, at some risk of letting it through by default if they fail to deal with the application on the grounds that it doesn’t qualify as PD, and they then turn out to have been wrong about that.

Richard W said...

Sometimes there are good reasons to suppose that a submitted prior notice in fact relates to a development proposal which would not be PD for one or other reason. The worst case of this I have dealt with was a landowner who included with their Part 6 Prior Notice the statement "there is NO existing agricultural trade carried on at the site and I wish to establish a brand new smallholding from the ground up".

I think a lot of LPA's are concerned that if they process a prior notice for something which appears to fall outside the relevant PD class that they have somehow determined that the project can proceed as PD whether or not the facts fit - or that they have at least created a legitimate expectation that it can proceed as PD creating an apparent obstacle to later enforcement action.

From an LPA perspective I've dealt with similar issues in the past by dealing with the notification on its face (e.g. assuming this is PD, would we require prior approval of appearance etc) and then attaching to the decision a strongly worded letter that "in the opinion of the LPA" the project would not benefit from PD rights (for whatever reason) and that we would consider the construction to be a breach of planning control. I have found in the past that this is at least enough to counter claims of estoppel or legitimate expectation arising from having accepted the prior notice on its face.

The developer is entitled to carry on with the scheme if they beleive it is PD and the LPA is entitled to take enforcement action if they believe it is not (and it is expedient to do so).

Some developers will be willing to take the risk, some will adopt the strategy of pursuing a full application as a less risky course.

An enforcement appeal would require a determination on the facts as to whether or not the scheme was or was not PD.

Martin H Goodall LARTPI said...

In the case that Richard W mentions, it was clear beyond dispute that the proposed development could not be PD under Part 6, Class A. A prior notification that purported to be made in accordance with the requirements of this part of the GPDO could not turn something into permitted development that is not and cannot be PD. The annex to PPG7 advises LPAs to advise the applicant accordingly.

However, the point I have made elsewhere on this blog when discussing PD under Part 6 is that planning officers need to be very sure they are right in such circumstances, failing which they may well allow the development to go ahead by default if they fail to respond to the prior notification, in the event that it turns out that the development was PD after all. I am currently dealing with just such a case. The LPA purported to treat the prior notification as invalid on the grounds that the development would not fulfil the criteria of Part 6. They were wrong to do so, because it is abundantly clear that the development in question certainly does qualify as PD under Part 6. The applicant is now entitled to proceed with the development without further ado, and has in fact done so.

If an LPA processes the prior notification, notwithstanding their belief that the development does not qualify as PD, I do not believe that they would thereby open themselves to a claim of estoppel or legitimate expectation arising from having accepted the prior notice on its face. But they could avoid any such claim being made by making it abundantly clear that, whilst processing the prior notification, they do not accept that the proposed development is or can be PD.

Finally, rather than either side taking the risks inherent in enforcement action if the development goes ahead in any event, an LDC application beforehand would provide a means of resolving the issue in such circumstances.

Peter said...

I wish to inquire about a change of use under the new permitted development class J.
This was originally a barn which was converted to half office and half garages which was last used in 1989 for office workers at a brickyard.
I purchased it in 2008 and obtained permission to renovate and extend with a mezzanine floor over 40% of the building under B1 use.
We since found that due to a lack of parking (5 places) it was not suitable for letting as no other parking was available to supplement this at all. The 6 letting agents we approached recommended a residential use as far more appropriate.
I applied for the change of use under the new Class J and it was refused.
The reason for refusal was " As of the 30 May 2013 the building was not in Class B1(a) office use and prior to that date only a small part of the previous building was in office use. Therefore the proposal to convert to residential use does not comply with Part J of the Town and Country Planning (GPD) Amendment Order 2013. Therefore planning permission would be required for the change of use of the building to Class C3 residential.
I would very much appreciate your view on this.

Martin H Goodall LARTPI said...

Peter's question does not admit of an answer in this forum, as it clearly requires careful consideration based on its precise facts. 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.

Anonymous said...

So, if the LPA has a PA application, and after investigation concludes that the building in question was not used for offices, do they a) send the application back saying that its not pd (and run the risk of letting it through by default), OR b) refuse PA - presumably only on the transport or flooding grouds, OR c)give PA, but advise that they (the LPA) don't accept that it is PD.

Martin H Goodall LARTPI said...

The answer to this latest question must necessarily depend on the detailed facts in each case. If the LPA is very certain of its facts and is confident that the proposed change of use cannot possibly be PD in any circumstances, then they may feel bold enough to send the application back on the basis that it is not and cannot be PD in any event.

If the position is less clear-cut, the precautionary principle would suggest that the application should be processed in the usual way, and determined on its merits, but the decision (whether for or against) should be accompanied by a clear statement that the LPA does not accept that the proposed development does in fact qualify as PD, and that determination of the prior approval application cannot make it PD. This could perhaps be backed up by a warning (in the case of ‘approval’) that the developer should not proceed with the conversion without first obtaining a Lawful Development Certificate under section 192. Maybe there should also be a warning that carrying out development that is not PD could lead to enforcement action being taken against that development.

Unknown said...

Hi Martin,
If a property was Listed with the VOA- Valuations office as ''Offices and premises - Special category 203- Offices'' Does that mean that it should be classed in use class B1.
The local authority say this property used to be B1 but had a temporary change to D1 but there is no planning record of this. We would like to purchase the property with PD rights but just need some clarity on the VOA rating and link to usage Class B1.
Can you shed any light on this one?

Martin H Goodall LARTPI said...

In answer to NS (21 September), whether or not the use of a building fell within Use Class B1(a) on the qualifying date is ‘a matter of fact and degree’ in every case. This must depend on all the relevant evidence, and I do not consider that the valuation list is necessarily determinative of this question. The valuation list may be an indicator, but an Inspector could dismiss the appeal if the appellant's evidence of the actual use of the building is inconclusive.