Wednesday, 7 August 2013

Change of use of shops to residential use


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.

As predicted in my post on 18 July (“And now – A1 to C3?”), De-CLoG has now published a consultation paper suggesting this and other changes to the GPDO which (among other things) would allow change of use of some shops to residential use. This consultation paper is only a week late, having been promised for “the end of July”.

These changes were foreshadowed in the 2013 Budget Statement. De-CLoG is proposing to create a permitted development right for change of use (together with the associated physical works – in contrast with the recent provisions for change of use from office to residential) from a small shop (Class A1) or from professional/financial services (Class A2) to residential use (Class C3). It also proposes to allow a change of use from retail (A1) to use as a bank or a building society branch (within Class A2) (but not to other uses within this use class) and from agricultural use to residential use. I will deal with these latter proposals in a separate post.

The department’s stated intention is to find new uses for shops that no longer have a future. The consultation paper gives a perfunctory nod towards the “town centre first” policy set out in the NPPF, but does not propose to restrict the new permitted development right to a particular type of retail unit or site (e.g. secondary retail frontage). The proposed amendment will allow for necessary works for the residential conversion, including a new frontage, windows and doors.

The developer will be required to apply to the LPA for prior approval in respect of design, the potential impact of the loss of the retail unit on the economic health of the town centre, the need to maintain an adequate provision of essential local services such as post offices, and the potential impact of the change of use on the character of the local area. This will allow the local authority to have regard to their local plan policies for the area. So LPAs will still have quite a wide discretion over the determination of these change of use applications. In practice, it looks as though this alone could largely negative the liberalisation that the government claims to be seeking. This point is impliedly recognised in the consultation paper, which points out that the refusal of prior approval will be subject to appeal if local authorities are found to be using it unreasonably to prevent these changes of use.

The proposed permitted development right will be limited to A1 and A2 premises of not more than 150 square metres floor area, and will allow conversion to a single dwelling house or a maximum of four flats (but not a small HMO). Premises in conservation areas, National Parks, Areas of Outstanding Natural Beauty, the Broads and World Heritage sites (“Article 1(5) land”) will be excluded.

The consultation paper recognises that local planning authorities can issue Article 4 Directions to prevent or restrict such changes of use, although it does include a reminder that compensation may become payable.

Subject to the consultation exercise (which is due to end in October), the intention is that these further amendments to the GPDO should take effect in April 2014.

© MARTIN H GOODALL

13 comments:

Evan Owen - Snowdonia said...

Nick Boles made a comment about communities being fossilised in many areas yet this suggests that shops in NPs and AONBs will be excluded whether they have been empty for decades or not. I have seen hotels that have gone out of business several times and now stand empty yet in designated areas they want to preserve the facility for tourism... Shops are closing in communities in these areas because there are not enough locals left to keep them open. Yes Nick "fossilised" was the most appropriate word.

JNH said...

If LPA's can take local plan policies into account then this proposal does not give a GENERAL permitted development right. It is a planning application by any other name. PD rights should be reserved for development which has no fundamental policy implications.
Am I the only professional who is concerned about the blurring of the line between prior approval and planning applications?

The government's seemingly never ending tinkering with secondary legislation is undermining the principle enshrined in the Planning Acts that changes of use can have significant impacts.

Martin H Goodall LARTPI said...

I entirely agree with JNH’s observations. I did not mention it in my blog post yesterday, but I do share these concerns. In fact JNH’s remarks exactly mirror my thoughts as I wrote this piece. There does seem to be a trend towards “permitted development” which is really not PD at all in the strict sense of the word, because the developer is forced to jump through hoops in order to be able to carry out that development.

I had already formed the view that the right to make a change of use from office to residential was really a sort of ‘planning-permission-lite’. The proposed right to change from A1 or A2 to C3 seems to go even further down that road, by allowing the prior approval application to be dealt with almost exactly like a planning application.

So what’s the point of introducing this alternative form of planning application? I described it in a previous post as a kind of legislative sleight of hand. What do ministers think they are playing at? Or is Sir Humphrey simply making sure that their aims are frustrated by the complexity of the legislation?

Richard W said...

It is an utter shambles.

But then without an amendment to the Act demoting the development plan to a lesser status than their hastily disguised centralist policies - which even lay people (and backbench MPs) would question how else are they meant to impose their will over locally elected authorities?

Unknown said...

I have commented on the consultation, because the the government is introducing legislation in small doses, my question was why not include B8 to C3 or Educational Use only where these are in the middle of residential streets, and there are thousands dotted around the country. The other issue is the Shops to C3 use, these properties have shop fronts abutting public pavements, so why preclude small HMOs. Rgds Ali Musani

Anonymous said...

I have recently had a PD application for B1(a) to C3 NOT-ALLOWED by waltham forest, due to a past change of use planning application which had put the 'existing use' (mistakely) as A2 - proffesional. Even though it has been used as a office for a local newspaper. Is there a clear definition what the word 'proffesional' includes in the context of Use Classes?

Martin H Goodall LARTPI said...

If a building is used as an office falling within Use Class A2, then it does not qualify for conversion to residential use under this provision in the GPDO. The definition of an A2 use is use for the provision of financial services, professional services (other than health or medical services), or any other services (including use as a betting office) which it is appropriate to provide in a shopping area. In all cases, the service must be to visiting members of the public; otherwise it does not come within Class A2.

A newspaper office could come within the A2 use class if it provides services to visiting members of the public which it is appropriate to provide in a shopping area. There is no limit as to what might comprise “any other services”, although there are various examples of services (such as tanning salons, etc.) that have been held to be sui generis rather than coming within Class A2. If the newspaper office did not provide a service to visiting members of the public, then I agree that in that case it would be more likely to come within Use Class B1. [Class B1(a) is simply defined as use as an office (other than within Class A2).] However, it is bound to be a matter of fact and degree in each particular case.

Adam Johnston said...

I run a company where the unused storage part of the shop, the first floor usually can be converted to residential use. This I believe will ease the housing crisis and enable more people to start their way onto the property ladder and giving landlords much needed income. would welcome your thoughts.
Regards
Adam Johnston AKJ PM LTD

Martin H Goodall LARTPI said...

My apologies for the slight delay in moderating the comment from Adam Johnston submitted on 04/02/14. There is already provision in Part 3 of the Second Schedule to the GPDO for a change of use from use within Class A1 (shop) to a mixed use for any purpose within that class and as a single flat (i.e. above the shop, using redundant storage space). This is subject to several conditions, which are set out in Part 3. There is also provision in Part 3 for a change back to a Class A1 use from a mixed use for any purpose within Class A1 and as a single flat, but this is subject to a condition that this is not permitted unless the part of the building used as a single flat had been used for a purpose within either Class A1 or Class A2 immediately prior to being put to that use.

A similar PD right applies to premises within Use Class A2.

What the government is currently consulting on is the possibility of extending these permitted development right to change of use of the whole shop unit (or A2 office premises) to residential use. This is one of the changes which, if the government goes ahead with them, should come into effect in two or three months time.

Charles Couzens said...

I have been asked to prepare a planning application for conversion of a storage room below a shop into a flat in London. Has there been any case law about the Permitted Development rights for change from shop to flat below rather than above?
C Couzens.

Martin H Goodall LARTPI said...

In answer to Charles Couzens (07/03/13), I am not aware of any appeal decisions or judgments on this issue, but I would be surprised if there any because, as I read Class F of Part 3 in the Second Schedule to the GPDO, it does not in any event permit the creation of a flat below the shop.

The effect of Condition F.1(a) is to require that some or all of the parts of the building used for any purpose within Use Class A1 (or A2) must be situated on a floor below the lowest part of the building used as a flat. It follows that conversion of a basement below the shop to use as a flat will not be permitted development, and will require an application for planning permission (which may or may not be granted, depending on all the circumstances of the case).

Nickchat14 said...

Dear Martin
could you help me, I brought a property with two flats above and two closed shops on the ground floor back in December 2012, the previous owner removed the shop windows for safety reasons. the planning issued since 1871 to 1989was for shop and flat above, when the previous owner wanted to upgrade the Flat to two, and upgrade the shops as per the permission granted, but ran out funds in 1993but told the VOR of this so there took it off the Register for business rates, but converted the flat to two one bedroom flats, rented to date. the Council say as the shops have been empty/closed for a long time, I have to apply for planning permission again, as they will not issue a Lawful development certificate(LDC), they say they have not collected any business rates on them and the use was abandon(Shops have been closed for 20years), there has been no planning for change, so do the council have a right to say this, and do I have to apply again?

Martin H Goodall LARTPI said...

In answer to Nickchat14 (22/04/14), this sort of question could only be answered upon our receiving full instructions to advise. Our fees are reassuringly expensive!